Oludare v The Queen

[2020] SASCFC 117

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

OLUDARE v THE QUEEN

[2020] SASCFC 117

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Peek and The Honourable Justice Blue)

3 December 2020

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT

Appeal against conviction.

The appellant, Mr Oludare, was convicted of one count of vaginal rape contrary to s 48(1) of the Criminal Law Consolidation Act 1935 (SA).

Held per Peek J (Kelly J and Blue J agreeing) dismissing the appeal:

1. As to Ground 4 of appeal, the Judge did not err in finding the appellant to be “a large and powerfully built man” in the context of a preliminary question of whether he could have physically performed a manoeuvre that he denied having performed.

2. As to Ground 3 of appeal, no error is demonstrated in the way in which the Judge addressed the appellant’s language difficulties and idiosyncratic traits in the course of coming to the conclusion that he had been intentionally disingenuous in parts of his evidence.

3. As to Ground 2 of appeal, the Judge’s directions are not shown to be in error by reference to Liberato v The Queen or to subsequent discussions of that decision. Liberato v The Queen (1985) 159 CLR 507; Rollond v The Queen [2020] SASCFC 106 considered.

4. As to Ground 1 of appeal, the submissions advanced under Grounds 2 to 4 inclusive, together with a consideration of the whole of the evidence, do not make out that the verdict is unreasonable or is not supported by the evidence. M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 94 ALJR 394; Coughlan v The Queen (2020) 94 ALJR 455 considered.

Criminal Law Consolidation Act 1935 (SA) s 48, referred to.
Coughlan v The Queen (2020) 94 ALJR 455; Liberato v The Queen (1985) 159 CLR 507; M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 94 ALJR 394; Rollond v The Queen [2020] SASCFC 106, considered.

OLUDARE v THE QUEEN
[2020] SASCFC 117

Court of Criminal Appeal:  Kelly, Peek and Blue JJ

1. KELLY J:  I would dismiss the appeal for the reasons given by Peek J.

2. PEEK J:  Appeal against conviction.

3. The appellant, Mr Olanrewaju Segun Okuwa Oludare (Oludare), was convicted of one count of vaginal rape alleged to have occurred on 4 June 2017, contrary to s 48(1) of the Criminal Law Consolidation Act 1935 (SA), following a trial by a District Court Judge alone.

4. The complainant, MM, and the appellant each gave evidence on oath. The defence was that the intercourse occurred, but that it was consensual or, in any event, the appellant believed that it was.

5. There is no suggestion that the Judge misdirected herself concerning the elements of the offence of rape. Nor is there any suggestion that the Judge mis-stated the evidence, and in what follows I will largely adopt her Honour’s summary of the evidence (with citations omitted).

   History of the relationship between the appellant and MM up to 4 June 2017

6. The Judge recounted the origin and history of the relationship between the appellant and MM up to 4 June 2017 thus:

   20. The prosecution case depends almost entirely on the evidence of the complainant. The complainant, MM, has lived in Lockleys, South Australia for the past three years. She has a daughter, Z, born on 2 April 2013. She is no longer in a relationship with Z’s father.

   21. In June 2014, she met the accused at Zhivago night club. At this time, she was living at her mother’s house and he was living near Flinders University. In cross‑examination she agreed that the accused had told her that he was new to Australia and that she showed the accused around Adelaide in the following weeks.

   22. They subsequently commenced a sexual relationship which continued on‑and‑off until 2016. She said the ‘off’ periods lasted several months at a time and the relationship officially ended in May 2016 when she terminated it. In cross‑examination she explained that they broke up after an argument which resulted in her saying, ‘I’m just done with it’ or ‘I’m done with you’. She said it was her impression that the accused knew they had broken up at this point. She agreed that she did not say the words ‘we have broken up’.

   23. During the period between 2014 and 2016, the accused called her [MM] and she called him ‘Lanri’. They never lived together during this period and saw each other a couple of days a week. She predominantly stayed at his house, but he sometimes would stay at her place. When they did stay over at each other’s houses they would sleep in the same room.

   24. She agreed in cross-examination that the accused or herself would initiate sexual intercourse. She disagreed that she would say ‘no, no, no’ when the accused started being intimate with her but then when he stopped would urge him to start again. She agreed that she argued with the accused about him climaxing before her.  

   25. In June 2016, the complainant discovered she was pregnant. The accused was the father. The complainant said the accused was initially happy but the next day received a call from him where he listed the reasons that she should not have the baby. She ultimately decided to have the baby. When she told him and the accused tried to convince her to have an abortion. The accused said he did not want to have anything to do with the child and she said ‘he has been that way ever since I found out the news and even after I gave birth to him’. She disagreed in cross‑examination that she became hostile towards the accused because he wanted to have a termination or at any point thereafter. She disagreed that she resented the accused for being the father of her child.

   26. After learning of her pregnancy, the accused and complainant had little to do with each other. The accused called her on three occasions.

   27. During her pregnancy, she moved out of her mother’s house, into a townhouse in Lockleys, in November 2016. In around January or February 2017, the accused stayed with her at her Lockleys property whilst she was pregnant for about a month as he did not have a place to stay elsewhere. She slept upstairs in her bedroom and he slept downstairs in the living room. In cross‑examination, she agreed that she was having sex with the accused during this period. She said she started to feel uncomfortable and told him that he could not stay there anymore. He was very upset hearing this news but left.

   28. She agreed in cross‑examination that the accused wanted to be involved in her and her son’s life after January 2017.

   29. In re‑examination, she agreed that the accused was living with her on 11 February 2017 when they are discussing an appointment at Ashford Hospital and the prospect of the accused attending the appointment before she told him that he would not make it in time.

   30. In cross‑examination, she agreed that she sent the accused a text message (exhibit D1) on 27 February 2017 where she stated, about halfway through the message:

   Yesterday I asked you if you wanted to have dinner with us cause I wasn’t sure if you had something to eat. You stayed over and I was not expecting that but didn’t really mind too much but I do now.

   31. She agreed that the accused staying over was not something she objected to at the time but that she later regretted. She disagreed that she felt used by him. She said she regretted it because it sent a confusing message to her daughter having the accused around. She disagreed that she regretted it because it was confusing to the accused. In re‑examination, she said that she could not remember if the accused was living with her at this time.

   32. Their son, M, was born 4 March 2017 at the Women’s and Children’s Hospital. She remained in hospital for 4‑5 days after giving birth. She said she communicated with the accused via text message informing him that M had been born. The accused responded to the message saying something like ‘congratulations to you’ with a Bible quote. He did not visit her in hospital.

   33. After she was discharged, she went to her mother’s house and stayed for a couple of days. The accused visited her mother’s house during this period. She then moved back home to her townhouse in Lockleys.

   34. The accused moved in with the complainant again in around May 2017 when M was about two months old. She thought he was just coming to visit M after being interstate but he ended up staying for 2‑3 weeks. He eventually moved out after she sent him a text message and communicated to him verbally that he had to leave on three separate occasions. She disagreed that the accused appeared to be confused about why she wanted him to leave.

   35. She initially could not remember if she had sex with the accused while he was living with her during this period in cross‑examination. After being reminded of an occasion on 23 April 2017, where she initiated sex with the accused via text message, she agreed that they were having intercourse at that time. She disagreed that she regretted having sex with the accused as it was signalling to the accused that they were getting back into a relationship. She said there was no spoken understanding between her and the accused as to the casual sex that was occurring after they broke up. However, she perceived that the accused understood they were not in a relationship despite them continuing to have sex.

   36. She said the next time she saw the accused was 4 June 2017. They had had phone conversations in the intervening period. She disagreed in cross‑examination that she spoke with the accused via telephone on 10 May 2017 about the accused being confused about the relationship and wanting to stay over. [Citations omitted]

   The events of 4 June 2017

7. The Judge recounted the events of 4 June 2017 thus:

   37. The complainant gave evidence that on 4 June 2017, the accused rang her in the morning wanting to see M. She said that was fine but that she had to be somewhere by 12.00 p.m. The accused arrived at her townhouse at around 10.00 a.m. Prior to his arrival, she was packing the children’s clothes for a sleepover at her mother’s house. She was still wearing her pyjamas when the accused arrived.

   38. When the accused arrived, he walked in and went straight to M and picked him up and said ‘hi’ to Z.

   39. She said it was hostile between herself and the accused. They did not exchange greetings, ‘he kind of’ ignored her and the energy was negative.

   40. She then told the accused that she needed to have a shower and asked him to keep an eye on M for her. She disagreed in cross‑examination that she motioned to the accused in a suggestive manner when she told him that she was going upstairs to have a shower. Her clothes were on her bed in her bedroom upstairs.

   41. She had a shower in the upstairs bathroom for 10‑15 minutes. The bathroom door was left ajar so that she could hear the children as she showered. She disagreed in cross‑examination that she left the door open for the accused to come up to see her. While she was in the shower, she heard M crying and Z call out that M was crying. She then rinsed herself and turned the tap off. She got out of the shower, dried herself and put on her white bathrobe. She had nothing on underneath the robe. She then came out of the bathroom and saw the accused holding M by the stairs, near the door.

   42. She took M from the accused, sat on the side of her bed towards the end and started to breastfeed M. The door was to her back, to her left, slightly behind her. As she was feeding M, the accused was standing by the door. He said to her, ‘why are you being mean to me?’ to which she replied, ‘I’m not being mean, I wasn’t being mean to you’. After she finished feeding M, she lay M on his back, turned her back to the accused and started putting on her underwear and jeans.

   43. The accused then came from behind her and put his arms around her torso, pinning her arms to her hips. She had her jeans on and was trying to button them when he came up behind her. She does not remember if she still had the bathrobe on. She believed that he wanted to have sex with her and kept saying ‘stop it’. They were wrestling around the room. She kept repeating ‘stop it, I don’t want you’. After 3‑4 minutes of struggling, he loosened her [sic his] grip on her, allowing her to pick up M and her top from the bed and go downstairs.

   44. The accused followed her down the stairs. Nothing was said between them. She put M in his portable bassinet. Z was sitting on the floor watching the TV, 3‑3.5 metres from M. The kitchen was about 2 metres from the TV and bassinet.

   45. She went around to the benchtop in the kitchen, behind a wall to be shielded from view while she put her top on. She agreed in cross‑examination that she wanted to get dressed downstairs because she felt safer there with her children being present. The accused was sitting out of her view on the sofa while she did this. He said to her, ‘that was a smart way of doing it’ to which she did not respond. She thinks he was referring to her coming downstairs and getting dressed downstairs to prevent what he wanted from happening.

   46. She then realised that her shoes were upstairs by the bed. She contemplated whether to go upstairs to get them or to go to her mother’s place barefoot. She decided to go upstairs quickly to get them. She disagreed in cross‑examination that going straight back upstairs after the accused said, ‘smart way of doing it’, referring to going downstairs to avoid sex, gave the impression that she wanted sex.

   47. She walked around the kitchen, and past the bassinet and sofa, where the accused was sitting, to go upstairs. As she was running upstairs she heard him running behind her. In cross‑examination she explained that she did not think that the accused would come upstairs after her.

   48. The complainant said once she got upstairs, she went to put her shoes on and the accused came from behind her and again pinned her arms in the same manner. They again struggled and she kept saying, ‘Stop it, I don’t want you, I’m serious, you need to stop’ to which he did not reply. As they were wrestling they ended up on the other side of the bed and she ended up facing him. His arms were around her, trapping her with her arms by her side. They were face‑to‑face and she could see that he was smiling.

   49. He then used his weight to cause her to fall on the bed on her back. When she landed on the bed he was on top of her with his head above hers. His right forearm was holding her down while he unbuttoned her jeans with his other hand. She continued to say ‘stop’ and that she didn’t want him, to which he did not respond. She struggled by moving side to side and trying to loosen his arms but she could not move and felt trapped underneath his weight. She cannot remember if she could move her legs.

   50. The accused tried to pull her jeans down. In cross‑examination, she described the jeans as tight, straight‑legged, stretch material jeans with a button fly. She said she could feel her jeans getting lower and lower until he managed to get the right leg of her jeans off. She cannot remember what position her legs were in. She said he then moved her underwear to one side and inserted his penis into her vagina. The top half of his body was just above hers. He struggled with her jeans, using one arm to hold her down and the other to take off her jeans. She cannot remember feeling the weight of his lower body on her.

   51. After he put his penis inside her vagina he commenced having sex with her. She froze and stopped resisting him. She said she did not make any sound as her daughter was downstairs. In cross‑examination, she agreed that she thought that the accused would not have sex with her if Z was present. She said she did not want Z to come upstairs because she did not want Z to see what was happening. The sex lasted for about a minute. He then stood up and went to the bathroom while she remained lying on the bed in shock for a few minutes. She cannot remember if the accused ejaculated.

   52. She then pulled the right leg of her jean. The other leg of jeans was still attached to her leg. Once she realised he was not in the bathroom, she left the bedroom and went into the bathroom to clean herself.

   53. When she went downstairs, the accused was sitting on the edge of the sofa near the bottom of the stairs, smiling at her. Z was still watching television. He tried to give her a hug and she said, ‘don’t touch me’ without looking at him. He did not say anything in reply.

   54. She said she told him to leave but he remained sitting there, smiling.

   55. After telling him to leave several times, she told him that what he had done was wrong and that he did not stop after she told him to. Again the accused did not reply.

   56. She then opened the front door, and held it open for him but he refused to leave. She packed her bags and put the bags and children in the car that was parked in the driveway in two trips. As she was putting M into his capsule in the car, the accused came behind her and said, ‘call me later tonight and I will give it to you the way you want it’. After she placed M in the car seat and the accused was out of the house, she locked the front door. She disagreed that the accused kissed her on the cheek to say goodbye. [Citations omitted]

   …

   The evidence of complaint by MM

8. There was no objection to the admission of the complaint evidence or any submission that the Judge failed properly to direct as to its limited use.

9. MM gave evidence that after the subject incident she drove to her mother’s house. She did not tell her mother about what had happened. However, later that same day her sister, V, came to MM’s house and MM told her that “he [Oludare] raped me while [Z] was downstairs” but not anything else. MM gave evidence that V had died some time after that conversation.

10. MM gave evidence that at the end of June or early July 2017, MM told her elder sister, LM, that the accused had come over during her birthday weekend wanting to see M, and he had raped her as she was getting her shoes from upstairs and while Z was downstairs. She told LM how they struggled and how he pulled her jeans and her fear of screaming and alerting her daughter. She told LM what the accused said to her while they were by the car, about giving her a call later and him giving it to her the way she wanted.

11. Later again, on 9 December 2017, MM reported the matter to police. She did so after she, with her children, were approached by the accused twice that day; first at a shop called Light Spot and later at a shopping centre at Kurralta Park. In cross‑examination, she disagreed that on this day the accused made it clear that he still wanted to be part of the children’s lives; but she agreed that he asked her children what presents they wanted for Christmas.

    The evidence of the complainant’s older sister, LM

12. The complainant’s older sister, LM, gave evidence. She confirmed that her sister, V, died in 2018. She stated that since 2017 she used to speak to MM two or three times a week, mainly by telephone. The Judge’s summary of the complaint evidence given by LM was as follows:

    70. … (I)n July 2017, proximate to her daughter’s Holy Communion, [MM] called her and told her that she had to tell her something. [MM] proceeded to tell her that Lanri had raped her. The complainant said Lanri had come over to visit their son some several weeks prior. She told her that Lanri was downstairs with their son and her daughter and she asked him to watch over the children so that she could go upstairs to have a shower. After she came out of the shower she went into her bedroom and put her jeans and top on when she heard someone behind her. She turned around and said she was startled before Lanri started coming onto her, trying to kiss her. She said that the first thing that she said to him was, ‘Lanri, we’re not together’ but he kept advancing on her so she kept telling him ‘stop’ and ‘move off’. She told her that she had her hands up in attempt to get him away from her. She then said that he came right onto her body as she was saying ‘get off me’ and he pulled down her jeans and raped her. The complainant went on to tell her that once she realised that he was not going to stop, she froze and could only think about the safety of her children downstairs. She told her that Lanri was telling her things while this was happening but LM cannot remember what they specifically were.

    71. In cross‑examination, LM gave evidence that she had only been provided with a copy of her own statement. She said that she had not been provided with any documentation from her sister or discussed the matter with her before attending court. [Citations omitted]

    The appellant’s evidence

1. The Judge summarised the appellant’s evidence thus:

   77. The accused gave evidence. He was born in Nigeria and came to Australia in June 2014. English is not his first language. He learnt English at school. He met the complainant at a nightclub, Zhivago, in the same week or possibly the following week after he arrived in Australia. He came to Australia to study Finance at Flinders University. In about August 2014, he commenced a relationship with the complainant that included having sexual intercourse. He gave evidence that in 2016, he saw the complainant a number of times per week. In June 2016, he found out she was pregnant. He described their ‘point of communication’ being broken at that stage. He identifies it as being broken because he told her that he did not want a baby and said he is now very sorry that he did that. They did not communicate for about three months. In October 2016, they commenced communication again. They met near the car wash close to her mother’s house and he apologised for what he had said about the baby.

   78. In respect of the evidence given by the complainant that they had broken up in May, he said ‘May 2016 I don’t think ‑ there wasn’t no justification for our break up. There wasn’t just no justification for our break up you know. I just don’t see it.’ He denied that she said, ‘I am done with it’. He described the complainant’s attitude after October 2016 as being ‘nonchalant’. By this, he meant that sometimes she was interested in him and sometimes she was not.

   79. He said that in January 2017 when the complainant was pregnant, he was living with her at her house at Lockleys until he went to Western Australia in February. After he came back, he stayed with the complainant again until possibly sometime in May. He got his own premises on 17 May 2017. He said during that time, they sometimes slept together in the bed and sometimes he slept alone downstairs on a sofa. He thought his relationship with the complainant was still normal at that time and believed they were together. He described his relationship with the complainant as being one where either of them would initiate sex. She would sometimes flirt with him and they would tease each other. He was asked in cross‑examination,

   Q     Did you ever push each other away while you were being intimate.

   A     Push each other away - I wouldn’t really - sometimes you know, sorry, repeat the question?

   Q     In a playful way.

   A     Sometimes, you know, sometimes I push her away.  There’s something I always do before just to make her laugh you know, but I really don’t recall what it was, you know. I think over time I will recall it anyways.

   Q     Have you ever pinned her arms down.

   A     Never, never.

   80. He gave evidence that there were issues in relation to him climaxing before her and at first, she voiced those concerns but later said nothing, sometimes she would walk away and say, ‘stop, leave me alone’.

   81. He said that he found out about the birth of their child after he had been trying to contact her and finally she picked up the phone and said she was at her mother’s house. He denied that he had been sent a text or that he sent a text to her in relation to the birth of their child.

   82. In respect of the text messages, he was quite confused about much of it. He said, he considered that the context of them meant that they were still together throughout 2017.

   83. He gave evidence that after their son was born, the complainant went to stay with her mother for a while but then went back to her own house. He then lived with her for a while. He said in relation to a message sent on 23 April 2017 that it was a message from [MM], initiating sex with him. He went on to say although they had sex on that day, they did not have sex very often after M was born. In relation to the initiation of sex, he said that they would give signals to each other that they wanted to have sex and he gave examples. He said sometimes the complainant’s facial expression changed after sex.

   84. He said on 10 May he was working at Adelaide Brighton Cement, having been called in in the middle of night, but had an accident at work and that was what the reference to the message on page 26 of exhibit D1 was. In relation to page 27 of exhibit D1 and the conversation that appears to relate to him leaving the house, he said,

   Q     What did you think about her wanting you out by that Sunday.

   A     I didn’t take it as anything - by that Sunday I didn’t take it to be anything.  I had my car; even if I don’t have a friend to go over to his place, I could easily sleep in my car and that is probably what I did that night.  That’s probably what I did.  That’s probably what happened that night, I’m not sure but more than likely.

   Q     During this time in May 2017, would you sometimes sleep in your car because [MM] was upset with you.

   A     I know I slept in my car a couple of times before around that time.  Yeah, but I didn’t look at it like she did anything for me to leave, you know, I was always just concerned about my work the next day, that’s all I was concerned about.

   Q     Why would you be concerned about work the next day.

   A     Because of where am I going to take a shower now, where am I going to have a shave.  I was always just focussed on, you know, how do I work and things like that.

   Q     Was your understanding of these messages that [MM] wanted you to leave permanently.

   A     I’m not sure, I’m not sure now.  I’m not sure, no, I’m definitely not sure.

   85. On 17 May 2017, he moved to his own premises at Kurralta Park. He said he continued to visit the complainant after he moved out. He was asked how often he had sex with her after he moved out.

   Q     How often did you have sex after you’d moved out.

   A     How often, it was just like every time I went back over there, you know.  I mean, we did what we did.  It wasn’t - you know, it wasn’t.

   86. In relation to the day of the alleged offence, the accused said he had made an arrangement to go to the complainant’s house. When he arrived, she opened the door and let him in. At that stage, she was fully clothed. He said it was ‘a warm environment’ and he went inside and started playing with her daughter. The complainant was in the kitchen and their son was asleep in the bassinet in the living room. She told him that she was going upstairs to take a shower. She looked in his direction and gave him a facial expression, where she put her chin up in air and appeared to be gesturing with her chin. From that, he inferred that she wanted him to come upstairs to have sex with her as that was the normal meaning for that gesture at that time.

   87. He said he stayed downstairs for about 10 minutes until their son started crying and he carried him upstairs. The complainant was still in the shower. She got out of the shower, turned the shower off, dried herself and came into the room. He said she took their son from his hands and started breast‑feeding him. At that stage, she was completely naked. The child fell asleep whilst she was feeding him, she gave the child back to the accused and he placed him in a bassinet on the side of the bed. The accused said they then started kissing, he kissed her on the cheeks but not on the lips. He gave evidence that the sex started ‘nothing more nothing less’.

   88. The accused said that he thought the sex was normal, he did not force her or pin her like she had claimed. He said that after they had sex, he let her go to the bathroom and he then went in there after her. He then put on his clothes and went downstairs. He was unsure whether their son was upstairs or downstairs when he went downstairs. He denied that the complainant had her jeans on prior to them having sex. He said he did not remove any clothes as she had no clothes on. He denied that the complainant said no to him and denied that she said, ‘I don’t want you’. He said that during sex she was touching and rubbing his back. He denied that she ‘froze’ at any stage. He said that after she came out of the bathroom, she walked past him like her normal self, he then cleaned up and changed himself.

   89. In the loungeroom downstairs, he recounted that he had seen the complainant,

   Q     Have you seen [MM] downstairs.

   A     I saw her downstairs, still in the kitchen, still in the kitchen all clothed up you know.

   Q     All clothed up.

   A     Clothed up, right - clothing I’m sorry - clothed up, all clothed up.  And I was facing [Z], because [Z] was watching TV, and I said ‘Well what you are watching’ she’s like, she said the name of the program, I don’t know what it was, I can’t remember what it was now, you know.  And I sat on the sofa in the living room.  I think before sitting on the sofa - I sat on the sofa first, then when she started walking towards me with some stuff in her hand, I don’t recall what it was but I believe, right, it was whatever they were taking out, they were taking out to have a sleepover, like she claimed, like she always do when she go out, she say we going to her - she’ll say she’s going over to her mum’s house to have a sleepover, you know.  And at this time I was going to hold her, I was going to give her a hug like ‘Okay’, you know, that was when she’s like ‘Don’t touch me’.  As soon as she said ‘Don’t touch me’ I was like, okay, you know.  You know, like Miss Attitude, something like that you know, but I didn’t say that.  I was like ‘okay’ you know.  I withdrew from when she said ‘Don’t touch me’, I pulled back and I continue conversation with me, I and [Z] in the living room.

   Q     How did you feel when she said ‘Don’t touch me’.

   A     I respected no touching her at that point.  I respected her not touching her at that point.  She said ‘Don’t touch me’, ‘Don’t touch me’ means don’t touch me.

   Q     How did you judge her behaviour towards you at that time.

   A     Say that again please.

   Q     How did you judge her behaviour towards you at that time.

   A     Her behaviour at that time.  How I enjoyed the behaviour at that time.  I thought it was a nonsense.

   Q     How did her behaviour towards you change between when you had arrived at her house and after the sex.

   A     Yeah, the behaviour seemed to change when we got in the car.  Once again from that point when she said ‘Don’t touch me’ she was looking away like.  It wasn’t uncommon for her to look away.  It wasn’t as though it was uncommon for her to look away.

   Q     She wouldn’t look at you.

   A     She wouldn’t look at me.  She was looking away and I was focusing on [Z].  I was just waiting for her to get ready to go after that.  It was not the first time she wanted to go out and wanted to leave.

   90. He then went on to describe carrying their son to the baby seat in the car and said that before the complainant left he said, ‘I’ll see you there, I’ll call you there’. He was then asked about text messages between himself and the complainant. He said he was not sure what the meaning was of the text messages that she was sending him. He said that what she said was all made up stuff. She did not say anything of that nature to him and he thought everything was normal in bed that day.

   91. He said that he next saw the complainant in December 2017. By that stage he thought his romantic relationship with the complainant was over. He understood it was over when he started to see the text messages and he realised that something was wrong. 

   92. He went on to say that he saw the complainant at a place called Light Spot on Anzac Highway on 9 December 2017 when he was coming from either university or work. He said he started to talk to the children asking what they wanted for Christmas, and later that day, he saw them at Coles at Kurralta Park. That meeting was not planned, he lived around the corner. During that time, he said there was a conversation where he asked if he could carry his child, the complainant gave him the child and he remembers saying words such as, ‘don’t worry your mum is going to take care of you while I sort myself out’. He then gave the child back to the complainant. He went on to say that the complainant made a comment to him that day that was not so good and he went directly to the library and started printing out the messages from his phone. He then contacted his lawyer and later tried to arrange mediation. On further reflection, he said that whilst they were at Coles the complainant said to him ‘I’ll make sure you don’t see this child again’ to which he replied, ‘you can only try’. [Citations omitted]

   The grounds of appeal

2. The original filed grounds of appeal were as follows:

   a.     The verdict is inconsistent with the evidence

   b.     The verdict is unsafe and unsatisfactory.

3. Subsequently, counsel for the appellant included in his written submissions for the application to the Single Judge for permission to appeal further proposed grounds. After hearing submissions, the Single Judge permitted some additions. On the hearing of the appeal before this Court, counsel for the appellant formulated a statement of the present grounds of appeal (with which counsel for the respondent concurred) as follows:

   1.   The verdict was unreasonable and could not be supported by the evidence.

   2.   The trial miscarried because the learned trial Judge erred in her application of the Liberato direction.

   3.   The trial miscarried because the learned trial Judge erred in her assessment of language difficulties as opposed to credibility.

   4.   The trial miscarried because the learned trial Judge erred in finding the appellant ‘a large and powerfully built man’.

4. In both his written and oral submissions on the appeal, counsel for the appellant argued the grounds of appeal in the order: 4, 3, 2 and 1 and I will proceed in that same order.

   Ground 4 of appeal: The Judge erred in finding the appellant to be ‘a large and powerfully built man’

5. The appellant complains of the following passage in the Judge’s reasons:

   111. I do not accept the suggestion made by defence that it was unlikely that her clothing was removed in the way that she said. The accused is a large and powerfully built man. He could have removed her jeans in the way that she described, leaving them dangling off one leg and then performed the act of sexual intercourse that she said. …

6. The essential complaint is that there was no evidence given at trial concerning the height or weight of the appellant. Counsel asserted on appeal that “the only passage that deals with the actual dimensions of either the complainant or the appellant is that passage in cross-examination where the appellant says that he’s approximately the same size as the complainant”.

7. However, it needs to be remembered that the Judge was here addressing a situation where the evidence of the accused (and the case for the defence) was simply that he did not perform a manoeuvre asserted by MM; the accused in fact never claimed that it would have been physically impossible for him to have done so, and certainly no such evidence was led by the accused to that effect.

8. There was nothing wrong with the Judge noting, as she did, the possibility of a preliminary question of whether the accused could physically have performed the manoeuvre before proceeding to the more important contested question of whether or not he in fact did so. And, in my view, there was nothing wrong in her Honour answering that preliminary question in the way that she did. I consider that the reference to the accused as “a large and powerfully built man” meant no more than the accused, as he presented before the Court, appeared to be a man well capable of physically carrying out the manoeuvre. That, of course, only took her Honour a short distance down the track of determining the trial issue of whether he actually did so, but it is simply that initial short preliminary distance with which this ground of appeal is concerned.

9. I would reject Ground 4 of appeal.

   Ground 3 of appeal: The trial miscarried because the learned trial Judge erred in her assessment of language difficulties when assessing credibility

10. The essential complaint here focuses upon the following passages in the Judge’s reasons:

    107. The complainant in this matter gave her evidence in a compelling, concise and coherent fashion. This is to be contrasted by the manner in which the accused gave his evidence which was rambling, difficult to understand and at times, unresponsive. However, I remind myself this is not a case where the competing versions given by the accused and the complainant is the question. I remind myself that English is the second language for the accused, that it appears his manner is to be verbose and he sometimes struggled with explaining himself. I have taken all of these features into account.

    …

    114. I did not regard the accused as a credible witness and I do not consider that his evidence is reasonably possibly true relating to the charge. In short, I reject his evidence. Even making allowance for the difficulty that he had with English and his unique personality traits, his evidence was at times rambling and disingenuous. I accept the evidence of the complainant that she considered the relationship was over in May 2017. [Emphasis added]

11. In both his written and oral submissions on the appeal, counsel for the appellant emphasised “language issues” and idiosyncratic traits of the appellant. He submitted in writing that “there is no evidence that identifies that the appellant was intentionally disingenuous per se, as the majority of the transcript passages referred to herein relate to language and comprehension issues”.

12. However, the fact is that no one denies that there were issues concerning language or idiosyncratic traits of the appellant. The important point is that the Judge specifically noted that there were such issues in the underlined passages above in paragraphs [107] and [114]. The different and important question of whether or not the appellant was being intentionally disingenuous in parts of his evidence was an important question for the trial Judge and in this regard, this Court must pay heed to the advantages the Judge had in hearing and seeing the evidence being given. I consider that in this particular case that advantage was considerable. Error is not demonstrated.

13. I would reject Ground 3 of appeal.

    Ground 2 of appeal: The trial miscarried because the learned trial Judge erred in her application of the Liberato direction

14. The passages in the Judge’s reasons apparently referred to are as follows:

    16. The accused has given evidence. He was not obliged to give evidence but chose to do so. His evidence must be considered along with the other evidence in the case. By giving evidence and presenting a case, he does not assume any burden of proof. That burden must always remain with the prosecution. Even if I reject any explanation that was given by the accused, that is not an end to this matter. I must be satisfied that each of the elements of the charge has been proven beyond reasonable doubt, notwithstanding the case presented by the defence before I can return a verdict of guilty.

    …

    107. The complainant in this matter gave her evidence in a compelling, concise and coherent fashion. This is to be contrasted by the manner in which the accused gave his evidence which was rambling, difficult to understand and at times, unresponsive. However, I remind myself this is not a case where the competing versions given by the accused and the complainant is the question. I remind myself that English is the second language for the accused, that it appears his manner is to be verbose and he sometimes struggled with explaining himself. I have taken all of these features into account.

    108. I have borne steadily in mind that even if I do not positively believe the evidence of the accused, I cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.[1] [Emphasis added]

    [1]    Liberato v The Queen (1985) 159 CLR 507.

15. The written submission of counsel for the appellant in support of this ground is (in whole) as follows:

    27. Although the Learned Trial Judge correctly recorded the direction identified in Liberato, she made an error in applying the direction to resolve the issue of how to deal with the Appellant’s evidence.

    28. That is, the Learned Trial Judge erred by rejecting the truth of the Appellant’s evidence as part of the process of reasoning that led to the conclusion that the Complainant’s version was proved beyond reasonable doubt.

    29. The Appellant submits that the Learned Trial Judge’s finding that his evidence was not ‘reasonably possibly true’, in the context of the case turning on the acceptance of the Complainant’s evidence beyond reasonable doubt, notwithstanding the (sworn) denial by the Appellant, the Learned Trial Judge failed to direct herself that she did not have to believe that the Appellant was telling the truth before being entitled to an acquittal. [Citations omitted]

1. As to the last two lines of the appellant’s written submission, the passages in emphasis in her Honour’s reasons reproduced above make very clear that her Honour did indeed “direct herself that she did not have to believe that the Appellant was telling the truth before being entitled to an acquittal”.

2. I must say that I find it difficult to understand the appellant’s argument. The Judge specifically referred to Liberato v The Queen (Liberato).[2] In fact, her Honour went further than that in favour of the appellant. Her Honour directed herself that the appellant would be entitled to an acquittal not only in a situation where she did “not positively believe that the accused was telling the truth”,[3] but also in a situation where “I reject any explanation that was given by the accused”.[4] The point is that, as recognised by her Honour, a defendant is entitled to an acquittal in both such situations unless the Judge is satisfied that the charge is proven beyond reasonable doubt by the other evidence in the case. And here the Judge did determine that the charge was so proven beyond reasonable doubt.

   [2] (1985) 159 CLR 507.

   [3] Paragraph [108].

   [4] Paragraph [16].

3. Of course, the judgment of Brennan J in Liberato, and developments building upon that judgment, have since been discussed in a significant number of decisions of the High Court and a large number of State Full Courts, including this Court. I have had regard to these decisions, but they only confirm that this ground of appeal should be rejected.[5]

   [5]    Some of these Judgments are referred to in the recent decision of this Court in Rollond v The Queen [2020] SASCFC 106 at paragraphs [100] to [107].

4. I would reject Ground 2 of appeal.

   Ground 1 of appeal: The verdict was unreasonable and could not be supported by the evidence

5. The written submission of counsel for the appellant in support of this ground is (in whole) as follows:

   30. The Appellant submits that when all of the evidence is considered, the Learned Trial Judge has erred in substituting her preference for the evidence of the Prosecution as proof beyond reasonable doubt.  Thus, the Appellant submits that the Learned Trial Judge has erred in basing her verdict on a choice of evidence as opposed to accepting the Complainant’s evidence beyond reasonable doubt.

   31. Thus the Appellant submits that the verdict is inconsistent with the evidence and thus unsafe and unsatisfactory; as the evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead to the conclusion that, even making full allowance for the advantages enjoyed by the Learned Trial Judge, there is a reasonable possibility that an innocent person has been convicted.

6. As to paragraph 30 of the appellant’s submission, this would appear to be a somewhat different ground to the unreasonable ground. Of course, if it could be demonstrated that the Judge did substitute “preference” for proof beyond reasonable doubt, that would be a very good ground indeed. However, a reading of her Honour’s reasons demonstrates that she did no such thing, and her Honour’s references in paragraphs [16], [107] and [108] reproduced above only confirm this.

7. As to paragraph 31 of the appellant’s submission, at least the last five lines appear to engage the precepts in M v The Queen.[6] However, save and except for reference to the matters already discussed under Grounds 2 to 4 inclusive, counsel for the appellant proffered no analysis of the evidence, either in writing or orally, to demonstrate the presence of the features referred to in those five lines (despite some encouragement to do so from at least one member of the Bench). When the Court adjourned, counsel for the appellant was given time to advance further submissions in writing; counsel later notified the Court in writing that “the Appellant respectfully declines the invitation and confines the issues on the appeal to the written and oral submissions already advanced”.

   [6] (1994) 181 CLR 487. Of course, to be taken together with a significant number of later decisions of the High Court, including the recent decisions in Pell v The Queen (2020) 94 ALJR 394 and Coughlan v The Queen (2020) 94 ALJR 455.

8. The submissions advanced under Grounds 2 to 4 inclusive taken cumulatively together do not make out miscarriage of justice and nor do they make out the unreasonable verdict ground.

9. I indicate that I have read and considered all of the evidence in the course of considering Grounds 2 to 4 of appeal. Applying the precepts in M v The Queen, I consider that it is not established that the verdict is unreasonable or that it is not supported by the evidence.

10. I would reject Ground 1 of appeal.

11. I would dismiss the appeal.

12. BLUE J:  I agree with Peek J.