Police v Beech (a pseudonym)
[2025] ACTMC 1
•21 January 2025
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Police v Beech (a pseudonym) |
Citation: | [2025] ACTMC 1 |
Hearing Dates: | 12-14 November 2024 |
Decision Date: | 21 January 2025 |
Before: | Magistrate Temby |
Decision: | I find the Defendant: (1) Not guilty of the first charge (proceedings CC2023/9995) (2) Guilty of the second charge (proceedings CC2023/9996) |
Catchwords: | CRIMINAL LAW – Sexual offences – Acts of indecency –Meaning of “incapable of agreeing to an act because of intoxication” – Recklessness |
Legislation Cited: | Crimes Act 1900 (ACT), ss 50A, 50B, 50C(1)(a)(ii), 60, 67, 67(2), 67(4), 67A, 67A(2), 67(1)(e), 67(1)(g), 67(1)(l), 67(1)(n) Crimes Act 1900 (NSW), s 61HJ(1)(c) |
Cases Cited: | Mahmood v Western Australia (2008) 232 CLR 397 Agresti v The Queen [2017] ACTCA 20 R v MZ (No 3) [2021] ACTSC 322 |
Text Cited: | Crimes (Consent) Amendment Act 2022 Explanatory Statement to the Crimes (Consent) Amendment Bill 2022 Crimes (Consent) Amendment Bill 2018 Explanatory Statement for the Crimes (Consent) Amendment Bill 2018 Crimes (Consent) Amendment Act 2002 Explanatory Statement for the Crimes (Consent) Amendment Bill 2002 |
Parties: | Shannon Snelleksz (Informant) Paul Beech (a pseudonym) ( Defendant) |
Representation: | Solicitors ACT Director of Public Prosecutions ACT Legal Aid ( Defendant) |
File Numbers: | CC 9995 of 2023 CC 9996 of 2023 |
MAGISTRATE TEMBY:
1․This case is about two incidents that took place at K Bar Karaoke (K-Bar), a karaoke bar in Belconnen, in the early hours of 17 August 2023.
2․It is alleged that the Defendant committed two acts of indecency on the Complainant, the first by kissing her without consent in the hallway of K-Bar (the hallway incident – proceedings CC2023/9995), and the second, in the male bathroom of K-Bar, by pulling down her underwear and pants and bending her over, again without consent (the bathroom incident – proceedings CC2023/9996).
3․The Defendant does not dispute that the acts occurred, nor that the acts were committed on another person (the Complainant). He submits, however, that the Complainant consented to the acts. The parties agree that, if the Complainant consented to the acts:
(1)the acts would therefore not be indecent; and
(2)the element of the charge requiring proof that the Complainant did not consent, would not be made out.
4․The Defendant accepts that, if the Complainant did not consent, the two acts were indecent, being acts that are contrary to community standards of decency. I agree. However, the Defendant submits that even if the complainant did not consent, he was not reckless as to her consent, being the final element of the offence.
Directions
5․There are a number of decision-making principles that are relevant to the determination of criminal proceedings.
6․The Prosecution of course bears the onus of proving the guilt of the Defendant. The Defendant does not have to prove that he did not commit the offences with which he is charged. The standard of proof the Prosecution must meet is proof beyond reasonable doubt and the Defendant cannot be found guilty unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt. If I am satisfied that there may be an explanation consistent with the innocence of the Defendant, or I am unsure of where the truth lies, then I must find that the charge has not been proved to the standard of proof required by law.
7․The burden of proof on the Prosecution does not mean that the Prosecution must prove every fact in dispute beyond reasonable doubt, only that it must prove the elements of the charge beyond reasonable doubt.
8․I must determine whether each of the witnesses is a reliable witness. That is, whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence as proved. I can accept part of the witness’s evidence and reject part of that evidence or accept or reject it all. The law does not require me to give all evidence the same weight.
9․I must determine the facts in accordance with the evidence, considering it logically and rationally, without acting capriciously or irrationally. I must not let emotion enter into the decision-making process. I must bring an open and unbiased mind to the evidence but I may use my common sense and experience in assessing the evidence. Both the Prosecution and the Defendant are entitled to my verdict free of partiality, prejudice, favour or ill-will.
10․The Defendant does not have a criminal record. The parties agreed that that fact could be taken into account in assessing the probability of the Defendant committing the offence charged. I accept the position of the parties in this respect, although the probative value of the Defendant’s lack of antecedents as the sole evidence of his good character is not significant: R v Cumberbatch (No 5) [2002] VSC 289; Melbourne v R (1999) 198 CLR 1.
11․I give myself what is known as the Murray direction (R v Murray (1987) 11 NSWLR 12). Where, as here, an element of the commission of an offence depends on the evidence of a single witness – being the evidence of the complainant in relation to whether she gave the Defendant consent to engage in the acts the subject of the charges – the evidence of that witness must be scrutinised with great care to satisfy myself that I can safely act upon her evidence to the standard required in a criminal trial. Ultimately, I must be satisfied of the evidence of that witness beyond reasonable doubt as to the relevant elements.
12․The Defendant also requested that I give myself a Mahmood direction (Mahmood v Western Australia (2008) 232 CLR 397). He seeks that direction on the basis that:
(1)CCTV footage should have been obtained from K-Bar, as it would have shown the conduct engaged in by the Defendant and the complainant in the hallway; and
(2)only a handful of civilian witnesses were interviewed and gave evidence, whereas there were a number of additional people who attended K-Bar. The Defendant submits that the other people who were present could have given evidence as to the interactions between the Defendant and the complainant and that police should have approached each witness.
13․Insofar as the CCTV footage is concerned, the relevant chronology shows that the matter was investigated promptly by NSW and ACT police but the footage had been deleted by the time ACT Policing formally requested it from K-Bar. There is therefore an explanation for why the evidence was not presented by the Prosecution.
14․In this respect, I note that the incident was reported to [redacted] police on 18 August 2023, ACT Policing was tasked with the investigation of the incident on 22 August 2023 and the Informant made an urgent (24 hour) request for the CCTV footage on 30 August 2023. She attempted to speak to the owner of K-Bar between 22 August and 30 August 2023, but he did not have familiarity with the CCTV system. ACT Policing attended on 1 September 2023 but the footage from 17 August 2023 had been deleted by that time.
15․I do not consider that a Mahmood direction is required in relation to the absence of the CCTV footage.
16․With respect to the Prosecution’s failure to interview and lead evidence from additional witnesses, there is nothing to suggest that they saw or heard anything of relevance to these proceedings, or at least nothing of any relevance beyond the evidence which was given by the witnesses who were called by the Prosecution. Their relevance to the Prosecution case appears to have been limited as the key witnesses were identified by police and called as witnesses by the Prosecution.
17․Nevertheless, there were a number of people who stayed at K-Bar until the end of the evening who may have observed interactions between the Defendant and the complainant (including of interactions which were not observed by the witnesses who were called), but from whom statements were not obtained and who were not called as witnesses. Ultimately, the absence of evidence from these witnesses is not something that has a significant bearing on my decision, but I do take it into account in determining whether I should entertain a reasonable doubt about the Defendant’s guilt.
The offence and the issue of consent
The offence
18․The offence of an act of indecency without consent is set out in s 60 of the Crimes Act 1900 (ACT) (the Act). References to statutory provisions in this decision are to the Act unless otherwise stated.
19․Section 60 states:
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 punishable, on conviction, by imprisonment for 7 years.
20․I note that an act of indecency is a sexual act (s 50C(1)(a)(ii)) and that s 60 is a sexual offence consent provision (s 67(6)).
Consent
21․The starting point for consideration of the question of consent is s 50A. It states:
An object of this part is to recognise the following in relation to a sexual act:
(1)consent to participate in a sexual act is not to be presumed;
(2)every person has a right to choose not to participate in a sexual act;
(3)a consensual sexual act involves ongoing and mutual communication and decision-making by the people participating in the sexual act.
22․Consent is defined in s 50B to mean informed agreement to the sexual act that is:
(a) freely and voluntarily given; and
(b) communicated by saying or doing something.
23․Section 67 provides circumstances where a person does not consent. Relevantly, it states:
(1) For a sexual offence consent provision, and without limiting the grounds on which it may be established that a person does not consent to an act mentioned in the provision, a person does not consent to an act mentioned in the provision if the person—
…
(g) is incapable of agreeing to the act because of intoxication; or
N.B. s 67(6) defines intoxication by reference to s 30 of the Criminal Code. That provision says: “”intoxication” means intoxication because of the influence of alcohol, a drug or any other substance.”
…
(2) A person also does not consent to an act with another person (the “accused person”) only because the person—
(a)does not say or do something to resist the act; or
(b)consented to—
i.another act with the accused person; or
ii.the same act with the accused person at a different time or place; or
…
(3) If it is established that an accused person who knows, or is reckless about whether, the consent of another person to an act mentioned in a sexual offence consent provision has been caused by any of the circumstances set out in subsection (1) (a) to (o), the accused person is taken to know that the other person does not consent to the act.
(4) An accused person is taken to know that another person does not consent to an act mentioned in a sexual offence consent provision if any belief that the accused person has, or may have, that the other person consents to the act is not reasonable in the circumstances.
(5) For subsection (4), without limiting the grounds on which it may be established that an accused person’s belief is not reasonable in the circumstances, the accused person’s belief is taken not to be reasonable in the circumstances if the accused person did not say or do anything to ascertain whether the other person consented.
24․Section 67A is also relevant. It states:
(1) This section applies to a proceeding for an offence against a sexual offence consent provision.
(2) In deciding a person’s (the accused person ) knowledge or belief, or recklessness, about whether another person consented to an act mentioned in the provision, the trier of fact—
(a) must consider all the circumstances of the case, including anything the accused person said or did; but
(b) must not consider the accused person’s self-induced intoxication.
What does it mean, for the purposes of s 67(1)(g), to be incapable of agreeing to an act because of intoxication?
Context for the introduction of s 67(1)(g)
25․Changes to the law regarding consent in relation to sexual offences were made in 2022 by the Crimes (Consent) Amendment Act 2022. The Explanatory Statement to the Crimes (Consent) Amendment Bill 2018 stated that the purpose of the Bill was to ‘update the Crimes Act 1900 to align with contemporary community understandings and expectations of consensual sexual activity’ and said that the amendments to be made to the Act:
shift the principle, meaning and definition of sexual consent from something that is presumed and can be negated, to something that is unassumed and must be given. This is a communicative model of consent – one which is underpinned by principles of agency, autonomy and responsibility and is based upon a culture of healthy, respectful relationships.
26․The Crimes (Consent) Amendment Act 2022 was one of a number of pieces of similar legislation that were enacted in various jurisdictions, including in NSW. As had been recommended by the ACT Standing Committee for Justice and Community Safety, following its inquiry into the Crimes (Consent) Amendment Bill 2018, the ACT did not progress legislative change until after the NSW Law Reform Commission concluded its inquiry into sexual offences.
27․Relevantly for present purposes, one of the recommendations of that report, which was published in September 2020, was that the law should protect complainants who are intoxicated to the point that they cannot consent to sexual activity. Paragraph 67(1)(g) was introduced into the Act, as part of the changes made by the Crimes (Consent) Amendment Act 2002, against that background.
28․Prior to its insertion, the issue of intoxication in the context of consent was dealt with in s 67(1)(e). That provision provided that:
For sections 54, 55(3)(b), 60 and 61(3)(b) … the consent of a person … to the committing of an act of indecency … is negated if that consent is caused … by the effect of intoxicating liquor, a drug or an anaesthetic.
29․The Court of Appeal considered this provision in Agresti v The Queen [2017] ACTCA 20 (Agresti). Having noted at [75] that consent required free and voluntary consent, at [156] the Court identified that the task for the Prosecution in that case was to establish:
… that any apparent consent to the act of sexual intercourse by the complainant was negated by her intoxication; in other words, that the effect of the complainant’s intoxication was so substantial that it caused her to be unable to consent to the act of sexual intercourse”.
30․The language of s 67(1)(g) of the Act differs from how intoxication was previously addressed in s 67(1)(e) in relation to issues of consent, most notably in the way that it deems consent not to have been given rather than providing for circumstances where any apparent or assumed consent is negated. However, the drafting of s 67(1)(g) (in combination with s 50B) reflects the test ultimately articulated in Agresti. Its insertion was certainly not intended to introduce a higher test, as noted in the revised Explanatory Statement to the Crimes (Consent) Amendment Bill 2022.
Test to be applied
31․Accordingly, the test to be applied under s 67(1)(g), having regard to s 50B, is whether the Prosecution has established that the effect of the Complainant’s intoxication was so substantial that it caused her to be incapable of giving informed agreement, freely and voluntarily, to the acts engaged in by the Defendant.
32․Incapacity in this sense does not mean mental incapacity or cognitive impairment more generally (which is addressed in s 67(1)(l)), and nor does it require that the Complainant have been unconscious (which is addressed in s 67(1)(n)). On the other hand, mere impairment of judgment or reduction of inhibition as a result of being intoxicated will not establish an incapacity.
Issues for resolution
33․The key issues for resolution in this matter are:
(1)whether it is possible that the Complainant said or did something to communicate her agreement to the acts the subject of each of the incidents;
(2)whether, regardless of what the Complainant said or did, she was incapable of agreeing to the acts because of intoxication; and
(3)if the Complainant did not agree to the acts, or was incapable of agreeing to them, whether the Defendant was reckless as to the Complainant’s consent.
The witnesses
General observations
34․Most of the witnesses were current or former [redacted] students who had been in Canberra from 16 to 18 August 2023 for a series of soccer matches. They were from the [redacted] and [redacted] campuses and were using the matches in Canberra as practice for an intervarsity soccer tournament that was to be held as part of the national university games later that year. There was a men’s team and a women’s team.
35․Two additional witnesses were the Informant and the Complainant’s roommate, Ms Ware (a pseudonym).
36․The parties agreed that all of the witnesses did their best to recall the matters they were asked about when giving evidence and that there are no issues as to the honesty of any of the witnesses.
37․I gave careful consideration to the capacity of the witnesses to recall the relevant events surrounding the incidents, given that they occurred more than 12 months ago and the witnesses were all intoxicated to some extent at the time. Of the witnesses who gave evidence at the hearing, it is apparent that Ms Rickard (a pseudonym) and Mr Walsh (a pseudonym) were the least intoxicated. They assessed their level of intoxication to have been around a 3 out of 10 level of intoxication at the time of the incidents and Ms Rickard recalled that she did not drink very much.
38․The Complainant was the most intoxicated. Ms Rickard said that the Complainant was around an 8 out of 10 level of intoxication. Accepting the obvious limitations on a numerical assessment of intoxication, I note that her presentation towards the end of the night was consistent with her being significantly intoxicated and witnesses described her as being more intoxicated than others.
39․However, despite the witnesses’ various levels of intoxication, there is considerable consistency in the evidence between the witnesses (including the evidence given by the Complainant), and the witnesses were clear about the parts of the evening they recalled and the parts that they did not. There was no indication that the witnesses exaggerated or embellished any of their evidence.
40․Accordingly, I do not consider that the evidence given by any of the witnesses was unreliable in a general sense. In fact, I consider that the evidence was generally reliable. As the Defendant’s Counsel urged me to do, I have scrutinised the evidence of the witnesses in relation to the key issues with great care to ensure that I can properly act on that evidence.
Key witnesses
41․The two key witnesses are the Complainant and Ms Rickard. The Complainant was involved in the relevant incidents and Ms Rickard observed the first of them and observed the Complainant’s presentation after each incident. She was the primary person to interact with the Complainant.
42․It is apparent that Ms Rickard paid particular attention to the Complainant at the relevant times because she was concerned for her welfare. The other witnesses were able to provide some contextual evidence, but the determination of the matter principally relies on the evidence that the Complainant and Ms Rickard gave.
43․I find that Ms Rickard was a reliable witness. Her evidence was clear, considered and consistent with evidence given by other witnesses. She was clear in refutations she gave in cross-examination of propositions with which she disagreed, but readily accepted propositions that were consistent with her recollections, including propositions that may have seemed detrimental to the Prosecution case. She made reasonable concessions in terms of the limits of her recollection. Ms Rickard did not drink a substantial amount of alcohol on the evening and it does not appear that she was impacted by intoxication to an extent that might have impacted her perception or recollection of events.
44․I also accept that the Complainant was a reliable witness. Her evidence, both in court and in her evidence-in-chief police interview, was notable for the open, honest, matter of fact way that she answered questions, without a hint of exaggeration. She gave clear evidence as to the details that she remembered and those that she did not. Like Ms Rickard, the Complainant readily accepted propositions put to her in cross-examination that may have seemed detrimental to the Prosecution case.
45․In assessing the Complainant’s evidence I have had regard to the significantly intoxicated state that she ended up being in by the end of the evening, which resulted in her having some sort of a ‘black-out’ at some point, around midnight. The Complainant said that she went from feeling quite intoxicated to having no recollection. She said she had never experienced that before.
46․I note that Ms Rickard said that she had observed a couple of occasions when the Complainant was sufficiently intoxicated that she could not remember the previous night. However, this was not a case where the Complainant did not remember the previous night. She had a good recollection of the events leading up to her arrival at K-Bar and a recollection of various events after that time which was consistent with the evidence of other witnesses.
47․Even after the ‘black out’, it is not correct that she had no recollection. What occurred was that she experienced a significant shift in the way she remembered the evening from that point. She had a memory, in the form of what she perceived to have been a bad dream when she awoke in the morning, of certain interactions with the Defendant. That memory comprised both a mental picture of some of her interactions with the Defendant and of the sensations she experienced. As I will discuss later in these reasons, she recalled the heaviness of her arms, the feeling of the Defendant pulling her pants and underwear down, the wetness of the Defendant’s kisses, the pressure on her back when she was bent over in the men’s bathroom and the pressure on her hips from the Defendant’s hands when he was kissing her.
48․The Complainant was honest about the limitations in her recollection and made reasonable concessions in that regard. She accepted in cross-examination that her mental picture of the evening was hazy and that the details of what occurred are murky. She said that she did not entirely trust her memory.
49․Having said that, she did recall aspects of her experience after the point that she ‘blacked out’ and she was clear in her evidence as to those events which she recalled and those which she did not.
50․I have noted above the physical sensations that she recalled in relation to her interactions with the Defendant. Her evidence was also consistent with the evidence of other witnesses. For example, her recollection of being pushed up against a wall by the Defendant is consistent with Ms Rickard’s evidence and her recollection of being taken into a bathroom and the Defendant locking the door is consistent with the observations of the witnesses who found them both in the locked room in the men’s bathroom. Her recollection of the layout of the bathroom matched the layout of the bathroom that could be seen in the video that the Informant took in conducting a walk-through of the K-Bar premises and her evidence that the Defendant pulled her underwear down is consistent with his DNA being found on the back of her underwear (and the Defendant’s concession that he did so). The accounts she gave to police, to the university, to Ms Ware and to the forensic officer have all been consistent.
51․While the Defendant’s Counsel suggested to the Complainant that she may have simply adopted what Ms Rickard told her as her recollection, the Complainant was clear in explaining that she had recalled particular events through her ‘dream’, and thought about the dream, before anybody told her anything in the morning. She conceded that it is possible that she said she had her hands by her side when the Defendant was kissing her because that is what Ms Rickard told her, but she independently had a recollection of not using her hands at all and of her arms being heavy.
52․It is also to be observed that the Complainant recalled details that Ms Rickard could not have known, such as how wet the kiss from the Defendant was and having her pants and underwear pulled down and being bent over in the men’s bathroom. The Complainant also recalled details that Ms Rickard is unlikely to have discussed with the Complainant, such as the layout of the men’s bathroom. It is also to be observed that the Complainant’s recollection of what Ms Rickard told her had happened the next day is expressed differently to how the Complainant had described her recollection. I do not consider that the Complainant simply adopted what Ms Rickard said had happened as her own recollection.
53․I note that the Defendant’s Counsel also submitted that I should have concerns about the reliability of the Complainant’s evidence because, according to the Defendant’s Counsel, the Complainant wrote in her complaint to the university, and stated in her evidence-in-chief interview, that the Defendant had dragged her into the men’s bathroom. The Defendant’s Counsel submitted that she did not properly disclose in the complaint that that assertion had been adopted from what Ms Rickard had told her and that it was fanciful in any case given the distance between the karaoke room and the men’s bathroom.
54․However, the Complainant in fact wrote in her university complaint that the Defendant pulled her away from the group and took her into a bathroom, locking the door behind them. That is far from fanciful. Indeed, it is likely what occurred.
55․Further, the Complainant said in her evidence-in-chief interview with police that she did not recall how she got to the bathroom but thought that she was pulled there based on what Ms Rickard had told her about the way she walked back to the hotel and the need for Ms Rickard to assist her. I do not consider that it is at all significant that she did not explain the source of each statement in her university complaint, which was a 12-line summary of the incident written shortly after she returned to [redacted].
Summary of events leading up to the incidents
56․The evidence of the witnesses was consistent that:
(1)the players from the two campuses travelled to Canberra and stayed at the Abode Hotel in Belconnen;
(2)on the evening of 16 August 2023, a number of the players had a drink at the hotel bar before the players went to The Lighthouse Pub for dinner. They got there around 7 or 7.30pm. There were around 25 players at dinner. Each of the witnesses gave evidence that they had further drinks at the pub; and
(3)after dinner, some of the players went to a skate park before attending K-Bar. About 15 players went to K-Bar although they did not all stay until the end of the evening. They arrived at around 11pm. Each of the witnesses gave evidence that they had further drinks there.
57․The Complainant said that she probably had a drink at the hotel bar before going out, two ciders or ginger beers at the pub with dinner, and three shots before leaving the pub. She placed herself at a 3 or 4 level of intoxication at the time she left the pub. Ms Rickard put her at a 5 or 6 out of 10. She observed her to be speaking loudly, laughing, swaying a little bit, but not overly slurring her words. Again, noting the obvious limitations in relying on a numerical assessment of intoxication, the Complainant was clearly already intoxicated, either approaching or at a medium level of intoxication by the time she arrived at K-Bar.
58․One of the players hired a karaoke room at K-Bar. The karaoke room was the first room on the right down a hallway leading away from reception. The bathrooms were located further down the hallway.
59․The Complainant shared some wine at the karaoke bar with Mr Craig (a pseudomyn) and Mr Grutt (a pseudonym). The Complainant said that she shared a bottle she had bought and probably some of a second bottle that Mr Grutt bought, but she could not remember. She thought that she only had around two small glasses from the first bottle.
60․Mr Craig said that he, Mr Grutt and the Complainant each bought a bottle to share and that they used standard glasses. I do not know whether they shared the bottles equally, but it appears that the Complainant had her fair share of the first bottle and at least had some of the second bottle as well. Ms Rickard said that the Complainant was drinking quite a bit at K-Bar, including wine and possibly spirts as well as she saw the Complainant ordering a vodka. Whatever the precise number or volume of alcohol that the Complainant drank, I accept Ms Rickard’s observation that the Complainant drank quite a bit at K-Bar.
61․The Complainant said that she was an 8 out of 10 level of intoxication when Mr Grutt bought the second bottle of wine, which is when she started to have trouble with her memory. The Complainant’s assessment that she was an 8 out of 10 level of intoxication is consistent, at least in terms of her level of intoxication towards the end of the evening, with Ms Rickard’s and Mr Craig’s assessment of her at that point and I accept that that was her level of intoxication towards the end of the evening. It is consistent with the Complainant having arrived at K-Bar already approaching or at a medium level of intoxication and drinking quite a bit there. It is also consistent with evidence that was given in relation to the Complainant’s level of functioning, which I have discussed in further detail below.
62․Insofar as the conduct of the Defendant and the Complainant is concerned, the uncontested evidence of the witnesses was that:
(1)the Defendant sat next to Mr Craig on the couch most of the time in the karaoke room;
(2)the Defendant and the Complainant sang a song together and danced together for around 10 minutes. Initially that was in a small group and later it was just by themselves;
(3)the Complainant and the Defendant sat down next to each other after dancing;
(4)Mr Walsh saw the Defendant and the Complainant sitting close to each other on the couch at one point, with the Defendant’s hand on the Complainant’s thigh. The Complainant kept her hands to herself. Mr Craig saw the Defendant and the Complainant sitting close to each other towards the end of the evening. It is possible that the evidence of Mr Walsh and Mr Craig concerns the same moment;
(5)some of the [redacted] women’s players arrived around midnight. The Complainant was in the karaoke room when the introductions were conducted with these players and recalled introductions being made;
(6)towards the end of the evening, there were three instances where the Defendant and the Complainant were intimate:
(b) the first, in the hallway outside the karaoke room;
(c) the second, further down the hallway, outside the bathrooms; and
(d) the third, inside the men’s bathroom.
63․As indicated at the beginning of these reasons, it is the first and third of these instances that are the subject of the charges against the Defendant.
First incident – the hallway kiss
64․It is not in dispute that the Defendant kissed the Complainant against the hallway wall opposite the karaoke room door. It appears that this incident occurred towards the end of the evening. Ms Rickard estimated that it was around 1.15am to 1.30am.
65․Ms Shearer (a pseudonym) gave evidence that the Complainant said, on the car ride back to [redacted], that the Defendant had forced her against a wall at K-Bar, and forced himself on her to kiss her, although it did not hit her until later that she was uncomfortable with the situation. The Complainant recalled the kiss being really wet – a lot of saliva.
66․The Complainant gave evidence that she felt pressure on her hips. This is supported by Ms Rickard’s observation that the Defendant had his hands on the Complainant’s hips. Ms Rickard said that she did not see the Defendant hold her against the wall but said that the Complainant appeared to be pressed against the wall while he was holding her.
67․Given my general observations in relation to the reliability of the evidence of the Complainant and, in particular, Ms Rickard, and the consistency between their evidence, I accept the above evidence. I find that the Defendant forced the Complainant against the hallway wall and put pressure on her hips with his hands.
68․The Complainant said that she did not kiss the Defendant back or, if she did so, only minimally. She said her arms were by her side.
69․Again, the Complainant’s recollection is largely consistent with Ms Rickard’s observations, which were that the Complainant was not reciprocating like a ‘make-out’. Ms Rickard said that the Complainant was not touching the Defendant back, her hands were by her side and, while she was kissing the Defendant, Ms Rickard could not tell the extent. She could see their heads move from side to side and their lips connecting. In cross-examination, Ms Rickard said that she did not see the Defendant first kiss the Complainant but saw them while the door to the karaoke room was open. She said that the door was open for a minute but she assumed that the kiss went for longer than that.
70․The Complainant said that she did not want to kiss the Defendant in the hallway because at no point in the evening did she think of the Defendant ‘like that’. She said that it is very unlikely that her opinion of him became favourable at any point because it was around that period in her life that she realised that she was only attracted to women.
71․The Complainant said that she was not enjoying herself and did not want what was happening. She said that she did not give the Defendant consent to kiss her and felt confused.
72․She said she would normally push someone off her if she wanted a situation like that to stop, but she felt like she was not able to do that on this occasion. She said she felt frozen. Ms Ware said that the Complainant told her that her arms were heavy so she could not push the Defendant away.
73․I accept this evidence. I find that the Defendant was kissing the Complainant in the hallway outside the karaoke room. I do not know how long the kiss lasted for, but it was clearly more than a minute. As I have already found, the Complainant had her back against the wall and the Defendant had his hands on her hips.
74․The Complainant was not an active participant in the kiss. Her arms were by her side and she only kissed the Defendant minimally.
75․That is because she was not attracted to the Defendant and did not want him to kiss her. She did not enjoy being kissed by him. At some point, she wanted to push him away but her arms felt too heavy for her to do so.
76․Why she would even kiss him minimally in these circumstances is a little hard to understand, although it is perhaps explained by the Complainant’s observation that she was confused and did not immediately appreciate that she was uncomfortable with the situation. I have no doubt that that observation reflects the fact that the Complainant was significantly intoxicated at the time.
77․My impression is that, as a result of her intoxication and confusion, she went along with what was happening to some extent. It does not appear that the Complainant froze, in the sense that that word might ordinarily be used in the context of an unwanted sexual act, albeit that I accept that the Complainant felt that her arms were heavy and that she was unable to push the Defendant away when she wanted to.
What happened between the hallway kiss and the incident inside the men’s bathroom?
78․Ms Rickard gave evidence that, during the incident in the hallway outside the karaoke room, she called out to the Complainant from the karaoke room and the Complainant responded, popping her head to one side and the Defendant pulled away. Ms Rickard asked her to come over and the Complainant did so almost straight away, although she was swaying somewhat, sat down in an uncontrolled way and continued to sway slightly when seated. Ms Rickard said that the swaying was subtle, but she was able to detect it because she knew the Complainant well.
79․Ms Rickard asked if the Complainant was okay. She wanted to check-in because she could tell that the Complainant was intoxicated and wanted to make sure she was safe. The Complainant said she was fine, but Ms Rickard said that her speech was slurred and she was not completely tracking with her eyes, which were only half open. Ms Rickard asked if the Complainant understood what was going on and the Complainant did not answer. Ms Rickard said that the Complainant looked confused. That is consistent with the Complainant’s evidence that she was confused.
80․Ms Rickard was distracted by someone else and the Complainant had left the room by the time Ms Rickard returned her attention to her.
81․Ms Rickard looked for the Complainant and found her with the Defendant further down the hallway near the bathrooms. This was about 10 minutes after she had spoken to the Complainant on the couch.
82․Ms Rickard observed the same situation as outside the karaoke room, with the Complainant against the wall, the Defendant kissing her, the Defendant’s hands on her hips, the Complainant not a particularly active participant, with her arms by her side, but nevertheless kissing the Defendant back.
83․Ms Rickard saw them kissing for about 30 seconds before she was distracted by someone leaving the bar and she went to make sure she was okay before she came back.
84․I accept that the interactions that Ms Rickard observed, and the Complainant’s physical presentation, were as Ms Rickard described in her evidence.
Second incident – inside the men’s bathroom
85․The Complainant said that she and the Defendant went into a bathroom and, within the bathroom, a lockable room to the right. Consistently with the layout of the bathroom shown in a video of K-Bar taken by the Informant, the Complainant recalled a urinal to the left of the room, a sink in the middle and the lockable room to the right.
86․The Complainant said that the Defendant took her into the bathroom but also said that she did not remember exactly how they got into the bathroom. Later in her evidence she indicated that she assumed that the Defendant led her into the room given that Ms Rickard had to assist her to get back to the hotel.
87․The Complainant said that the Defendant closed and locked the door. The Complainant said that the Defendnat continued the conduct from the hallway, pushing her against the wall and kissing her.
88․In her evidence, the Complainant said that she thought that the Defendant pulled her pants and underwear down and pushed her down so that she was bending over at a 90 degree angle. The Defendant’s hand was on her lower back. At another point in her evidence, the Complainant said she did not remember the Defendant pulling her pants and underwear down, so much as she remembered the feeling of them being pulled down. Ms Ware gave evidence that the Complainant told her that the Defendant pulled her pants and underwear down.
89․I find that the Defendant pulled down the Complainant’s pants and underwear. The Defendant concedes that he did so. The Complainant’s recollection in this respect is also consistent with the fact that it was only the Defendant and the Complainant in the room and forensic evidence showed that DNA found on the back of the complainant’s underwear that was not the Complainant’s was 100 billion times more likely to be from the Defendant than from an unknown individual unrelated to the Defendant.
90․For the reasons which follow, I find that the Complainant did not assist the Defendant to pull her pants or underwear down.
91․The Complainant remembered trying to keep balanced, but she did not remember where her hands were. The Complainant said that she did not really understand what was going on and did not know what to do. She felt that it all happened so quickly.
92․The Complainant gave evidence that she believed that she did not want to be in the bathroom with the Defendant, but she could not exclude the possibility that she wanted the Defendant to touch her and does not remember now.
93․The Complainant said that she did not give the Defendant consent to pull down her pants and underwear. Ms Ware said that the Complainant told her the same thing.
94․I find that the Defendant led the Complainant into the male bathroom. In circumstances where the Complainant was not attracted to the Defendant and did not enjoy being kissed by him, it is very unlikely that she would have initiated a further intimate interaction with him, and it is even more unlikely that she would have chosen that location. The likelihood that the Defendant led the Complainant into the bathroom is also supported by the fact that the Complainant was having difficulty walking at around this time, as I will discuss shortly, and by the Complainant’s evidence that she did not want to be in the men’s bathroom.
95․For the same reasons, I accept the Complainant’s evidence that, in the bathroom, the Defendant led the Complainant into the lockable room and locked the door. I accept the Complainant’s evidence that the Defendant pushed her against the wall and kissed her before he pulled down her pants and underwear and pushed her down so that she was bending over at a 90 degree angle. I accept the Complainant’s evidence that the Defendant put pressure on her back when he pushed her down. The Defendant concedes that he pulled the Complainant’s pants and underwear down and bent her over.
96․At some point, Ms Rickard came to find the Complainant again. She thought that the Defendant and the Complainant were in the bathroom, however she did not go in. She thought that they were doing their own thing and went back to the karaoke room.
97․At about 1.50am, the K-Bar manager gave the group a 10 minute closing warning. Ms Rickard went to the bathroom and knocked on the door, telling the Complainant and the Defendant that they had 10 minutes left, then went back to the karaoke room to pack up. She did not go into the bathroom as she did not want to intrude on the Defendant and the Complainant’s privacy.
98․Ms Rickard went back to the bathroom after about 5 minutes. The bathroom door was open. Mr Jack (a pseudonym) was using the toilet and Ms Shearer was using the sink. It was at that point that Ms Rickard said that she realised that the Complainant and the Defendant were in the room within the bathroom. She knocked on the door as they had to leave, but she received no response.
99․Ms Rickard and Mr Craig both banged on the door. Mr Craig told the Defendant that they had to go. Ms Rickard recalled that Mr Craig said ‘let her go mate’. While the other witnesses did not recall him saying that, I accept Ms Rickard’s evidence that he did say those words, given that she had a specific recollection of the interaction.
100․The Complainant said that she pulled her pants up before the Defendant opened the door. Ms Rickard said that the Complainant and the Defendant came out of the room together about one to two minutes after Ms Rickard and Mr Craig banged on the door. Mr Craig described them coming out of the room in awkward silence.
101․The Complainant did not remember anything from the evening after that point.
What happened after the bathroom incident?
102․After the Complainant came out of the bathroom’s internal room, Ms Rickard led her out of the bathroom and out of the bar. She did not like the situation and wanted the Complainant to be safe.
103․Ms Shearer observed the Complainant to be quite intoxicated and drowsy, with her arm over Ms Rickard’s shoulder. She said that the Complainant could not hold herself up well, her eyes were not fully open and she was walking a bit hunched.
104․Once outside, Ms Rickard asked the Complainant if she was okay. She said she did not know. Ms Rickard asked the Complainant what happened and the Complainant said that she was not sure.
105․Ms Rickard and Ms Shearer helped the Complainant back to the hotel. They both gave evidence that they had one of the Complainant’s arms over each of their shoulders. Ms Rickard at least had her other arm around the Complainant’s waist. She said that Ms Shearer was doing the same thing.
106․Having seen CCTV footage of the hotel foyer, in which she was not assisting the Complainant, Ms Shearer accepted that it was possible that her recollection was not correct and that she did not help the Complainant, however I accept the evidence of Ms Rickard and Ms Shearer that they both assisted the Complainant albeit that Ms Shearer did not do so the whole way.
107․Ms Shearer accepted that it was possible that the Complainant could have walked on her own, but it was not very likely. She said that Ms Rickard was assisting her most, if not all, of the walk back.
108․The CCTV footage of the hotel foyer supports the evidence that the Complainant required assistance walking back to the hotel although, at least at the moment that she arrived back in the foyer, it was only Ms Rickard who was assisting her. That footage suggests that she guided rather than carried the Complainant. That is consistent with Ms Rickard’s evidence that she was only carrying the Complainant’s weight a little bit and that the Complainant was able to support her body weight. That is, that Ms Rickard was providing stability.
109․The Complainant, Ms Rickard and Ms Shearer were talking on the way back. Ms Shearer and Ms Rickard had the impression that the Complainant was responsive to questions.
110․Ms Rickard and Ms Shearer assisted the Complainant upstairs to her room. Ms Rickard assisted the Complainant into bed, took her shoes off, put water beside her bed and put her phone on its charger. The Complainant was responsive to questions asked of her, including whether she wanted water and where her phone charger was.
111․The Complainant woke up still dressed in her clothes, including still having her hair clip in, with the only thing she wasn’t wearing from the night before being her shoes.
112․I find that the Complainant was highly intoxicated at the time she exited the bathroom. She was drowsy, her eyes were not fully open and she needed assistance to walk. While she could bear weight, she required assistance to provide her with stability and guide her in the right direction. Despite the level of her intoxication, she was able to respond to questions and was able to recall where her phone charger was in her room, although she appeared confused by her interaction with the Defendant in the bathroom.
Issue 1 – Is it possible that the Complainant said or did something to communicate her agreement to the acts the subject of each of the incidents?
The hallway incident
113․The Complainant was neither attracted to the Defendant nor wanted him to kiss her. It is very unlikely that the Complainant verbally consented to being kissed by him.
114․Nor is it at all likely that she verbally consented after the Defendant started kissing her. The Complainant was not enjoying herself. She did not want what was happening. Her statements in that regard are supported by the way she described how wet the Defendant’s kiss was and the limited extent to which she participated in the kiss.
115․She was not touching the Defendant back, with her hands by her side with her palms next to her legs. At some point she wanted to push the Defendant away but her arms felt heavy and she was unable to do so. Ms Rickard observed that she looked a bit weird – stiff – when the Defendant was kissing her.
116․While the Complainant gave evidence that she could not exclude the possibility that she wanted the Defendant to touch her and simply did not remember having that feeling, she also said that she did not believe that it was possible that she wanted that to occur. In my view, her concession that she could not exclude the possibility simply reflected the fact that her memory of the incident was not complete, and was not a concession that it was a realistic possibility.
117․It is clear that it was the Defendant who initiated the kiss. When they were sitting next to each other on the couch in the karaoke room, the Defendant put his hand on the Complainant’s thigh. She kept her hands to herself. In the hallway, the Defendant forced himself on the Complainant to kiss her. She had her arms by her side. She was not attracted to the Defendant and did not want to kiss him. While they sang a song together, and danced together at one point, initially in a group and then by themselves, the evidence in that respect did not identify what occurred between the two of them (if anything) prior to or during those interactions.
118․However, the Complainant did kiss the Complainant back. As I have found above, I accept that she only did so minimally, but she did kiss him back.
119․That is explicable in the circumstances, as I have suggested above, by the possibility that the Complainant, intoxicated and confused, went along with what was happening, at least to some extent. Her actions also need to be understood in the context of the circumstances which existed. She was significantly intoxicated, her back was against the wall and the Defendant’s hands were holding her hips. He was in a position of control.
120․Nevertheless, through her action of kissing him back, she indicated that she agreed to the Defendant kissing her. It is not possible to draw a line, at least not on the evidence in this case, between kissing that is too minimal to constitute agreement and kissing that is sufficiently substantive to do so.
121․I am not satisfied beyond reasonable doubt that the Complainant’s action in kissing the Defendant in the hallway did not amount to agreement by conduct.
The bathroom incident
122․The Complainant said that she did not give the Defendant consent to pull down her pants and underwear. Ms Ware said that she told her the same thing. I accept the Complainant’s evidence.
123․She said that she did not want to be in the men’s bathroom. She was clear that it was not the case that she might have forgotten wanting to be in the men’s bathroom with the Defendant, having regard to everything else she recalled of that evening. She said that every other recollection of her interaction with the Defendant was not positive and she did not feel that that is what she wanted, even though she could not exclude the possibility that she had some positive interactions with the Defendant.
124․As noted in relation to the hallway incident, while the Complainant gave evidence that she could not exclude the possibility that she wanted the Defendant to touch her and simply did not remember having that feeling, she also said that she did not believe that it was possible that she wanted that to occur. As I found above, her concession that she could not exclude the possibility simply reflected the fact that her memory of the incident was not complete, and was not a concession that it was a realistic possibility. She was not attracted to the Defendant and had not enjoyed him kissing her in the hallway. Around that time in her life she realised that she was only attracted to women.
125․Like the hallway incident, the Defendant was the initiating party. He led her into the men’s bathroom and into the lockable room within the bathroom. He locked the door and pushed her against the wall and kissed her. He pulled her pants and underwear down and pushed her down so that she was bending over. The Complainant was significantly intoxicated and did not fully understand what was going on. She did not know what to do and felt that everything was happening quickly. Again, the Defendant was in control.
126․In all the circumstances, it is not a realistic possibility that the Complainant gave the Defendant verbal consent for him to pull down her pants and underwear and bend her over, nor that she did anything to communicate her consent.
127․She was not attracted to the Defendant and did not want him to kiss her. She did not enjoy being kissed by him. She did not want to be in the men’s bathroom, but had been led there by the Defendant. She was significantly intoxicated and needed assistance to walk. She did not fully understand what was going on. The Defendant had pulled her pants and underwear down and bent her over.
128․It is one thing for the Complainant to have reciprocated the Defendant’s kisses to some extent in the hallway (outside the karaoke room and the men’s bathroom), particularly given the state she was in, but the Defendant’s actions in the bathroom were another thing entirely. It was a sexual act of a materially different character.
129․As a matter of law, the consent that the Complainant might have given the Defendant for him to kiss her outside the men’s bathroom did not extend to the further conduct in which he engaged (s 67(2)(b)(i)). As a matter of fact, in all the circumstances, it also does not support an inference that the Complainant may have consented to the further conduct.
130․The alleged conduct in the men’s bathroom did not involve any mutuality. It involved the Defendant pulling down the Complainant’s pants and underwear and the Defendant bending her over. The Complainant did not assist him. It is to be kept in mind that the Complainant will not have consented to the acts that the Defendant performed only because she did not say or do something to resist the acts (s 67(2)(a)).
131․The fact that the Defendant performed those acts without the agreement or assistance of the Complainant is consistent with the fact that, when the Complainant woke up in the morning, she noticed blood in her underwear, which was the result of her menstrual cup having been displaced. The Complainant explained that she had inserted it earlier in the evening, around 7 pm, knowing that she would not need to change it until the morning. She said that it forms a strong seal (suction) when inserted and that it takes quite a bit of pressure to take it out, but that it was at an angle when she woke up.
132․It is clear that it was the Defendant, and not the Complainant, who displaced the menstrual cup. The Complainant understood how the cup worked and she would not have accidentally displaced it. If the Complainant had wanted to remove the cup, she would have done so.
133․Further, given the function of the menstrual cup, the Complainant would not have broken the seal and simply left it displaced at an angle. Nor is there any prospect that she would have been content for the Defendant to do so.
134․I am fortified in my view that the Defendant pulled the Complainant’s pants and underwear down, and bent her over, without her agreement or assistance, by the fact that it is clear that he engaged in some other act without her agreement or assistance, shortly thereafter, which resulted in the Complainant’s menstrual cup being displaced.
135․The Defendant submitted that I should make something of Mr Craig’s evidence that he recalled the Defendant and the Complainant coming out of the locked room in the bathroom in awkward silence. The Defendant submits that it indicated a sense of embarrassment, which is inconsistent with the Complainant having been subjected to unwanted sexual acts.
136․I do not accept that submission.
137․Firstly, I am not confident that Mr Craig, who rated his level of intoxication as being 8 out of 10, was capable of accurately discerning whether the Defendant and the Complainant were awkward in their exit, or whether the other people who were present in the men’s bathroom, including Mr Craig, themselves felt awkward about the situation and projected that feeling onto the Defendant and the Complainant. Given Ms Rickard’s observations as to the Complainant’s physical presentation – in particular that she was intoxicated and drowsy – I am doubtful that she exited in awkward silence.
138․Secondly, even if the Complainant had exited in awkward silence, that would not establish that the Complainant had consented to the acts which took place in the locked room. It would not even be indicative that she had consented. It would not be surprising for a person who had been subjected to unwanted sexual acts to be embarrassed to realise that third persons were aware that sexual acts were likely to have taken place.
139․I am satisfied, beyond reasonable doubt, that it is not possible that the Complainant said or did something to communicate any agreement to the Defendant pulling her pants and underwear down and bending her over.
Issue 2 – Was the Complainant incapable of agreeing to the acts the subject of the incidents because of intoxication
140․Given the conclusion I have reached in relation to the absence of any consent on the Complainant’s part for the Defendant to perform the impugned acts in the men’s bathroom, Issue 2 strictly only needs to be considered in relation to the incident in the hallway. However, for completeness, I have considered the issue in relation to both incidents.
141․The Complainant’s level of intoxication is likely to have been very similar at the time of the hallway and bathroom incidents, given that the two incidents occurred in close temporal proximity to one another. I have nevertheless considered the impact of her intoxication on her capacity to consent in relation to each incident separately.
142․Given the significant shift that occurred after the ‘black out’, in terms of the impact of the Complainant’s intoxication on her level of functioning, it is possible that there was a decline in her level of functioning between the hallway and bathroom incidents. Indeed, while certain aspects of her presentation were similar between the two incidents, there are differences, particularly in relation to her capacity to walk.
What was the level and impact of the Complainant’s intoxication?
143․Ms Shearer took a video of the Complainant singing in the karaoke room between 12 and 1am. I observed from the video footage that the Complainant was holding a microphone and singing, with no obvious difficulty with her coordination.
144․However, by the end of the evening when the incidents occurred, the Complainant was significantly intoxicated. She was around an 8 out of 10 level of intoxication. She was more out of it, and more intoxicated, than everyone else.
145․She ‘blacked out’ in some way after the video was taken. While the Defendant submitted that that is not necessarily a symptom of someone being too intoxicated to consent, and that it is possible to have memory loss with only a moderate level of intoxication, the ‘black out’ marked a significant shift in the impact of the Complainant’s intoxication on her, both in terms of her mental and physical functioning.
146․While the Defendant submitted that the relationship between the Complainant’s physical incapacity and her mental incapacity is unknown, the fact that her intoxication had an impact on both aspects of her functioning is relevant to the determination of whether the level of her intoxication was such that she was incapable of agreeing to the acts engaged in by the Defendant. The greater the impact on the Complainant’s overall functioning, the stronger the inference is that she was not mentally capable of giving her agreement.
Impact at the time of the hallway incident
147․As I have noted previously, the complainant did not enjoy being kissed by the Defendant in the hallway and wanted to push him away but her arms felt too heavy for her to do so. She felt confused during the incident.
148․After she was called into the karaoke room by Ms Rickard, the Complainant was swaying as she walked towards Ms Rickard and swaying as she sat on the couch with Ms Rickard. The swaying was subtle, however, as noted above, Ms Rickard observed that her speech was slurred and she was not completely tracking with her eyes, which were only half open. While she told Ms Rickard that she was fine, the Complainant appeared confused to Ms Rickard, as the Complainant gave evidence that she was.
149․These considerations, particularly the Complainant’s state of confusion, support the conclusion that the Complainant was incapable of consenting to the acts engage in by the Defendant.
150․Against that conclusion, the Defendant points to the fact that Ms Rickard called the Complainant into the karaoke room and the Complainant popped her head to one side and walked over to Ms Rickard almost immediately. While the fact that she was able to respond to her name being called is not inconsistent with her being confused during the incident, it does suggest that she had some awareness of what was going on around her. The fact that she kissed the Defendant back also indicates that she had some awareness of what was happening.
151․Having regard to all the circumstances, I am not satisfied beyond reasonable doubt that the impact of the Complainant’s intoxication on her level of functioning was such that she was incapable of agreeing to the Defendant kissing her.
Impact at the time of the bathroom incident
152․As noted above, prior to the hallway incident, the Complainant had experienced the ‘black out’. She had begun to be physically impacted as well, with her arms feeling heavy while the Defendant was kissing her and she was beginning to lose coordination. She was swaying as she walked towards Ms Rickard after the hallway incident and swaying on the couch as she spoke to her, albeit subtlely. She was slurring her words and her eyes were only half open.
153․During the bathroom incident, the Complainant did not fully understand what was going on and did not know what to do.
154․On exiting the bathroom, she was drowsy and her eyes were pretty much closed. The Defendant submits that the limited extent to which the Complainant was able to open her eyes can be explained by tiredness, however I accept the evidence of Ms Rickard and Ms Shearer that it was the result of the Complainant’s intoxication.
155․The Complainant could not hold herself up well and needed assistance to walk. While she could bear weight, she required assistance to provide her with stability and guide her in the right direction. Her level of physical functioning had clearly deteriorated since the hallway incident.
156․When Ms Rickard asked the Complainant outside K-Bar if she was okay, she said she did not know. When Ms Rickard asked her what happened, the Complainant said that she was not sure. While, as the Defendant submits, the Complainant might have understood the first question to refer to her general welfare, Ms Rickard’s question as to whether the Complainant knew what had happened cannot be explained on that basis. It was clearly directed to the incident in the men’s bathroom, from which Ms Rickard had just taken the Complainant. Further, the Complainant’s presentation on exiting the bathroom is consistent with her not being fully aware of what was happening. In contrast to the hallway incident, the Complainant had little to no awareness of what was going on around her.
157․As I have noted earlier in these reasons, the Complainant’s menstrual cup was partially displaced during the bathroom incident. It seems highly unlikely that the Complainant would consciously permit that to occur.
158․I find that both the Complainant’s physical and mental functioning had deteriorated between the hallway and the bathroom incidents.
159․I note that the Complainant was able to respond to questions on the walk back to the hotel and she was able to recall where her phone charger was in her room. However, as I have noted, in responding to Ms Rickard’s initial questions on the way back she said that she did not know if she was okay and was not sure what had happened between herself and the Defendant.
160․Further, while her recollection of the location of her phone charger does demonstrate some level of awareness and mental capacity at that point, it appears to have been at least 20 minutes after leaving K-Bar (having regard to the time taken to walk back to the hotel and the time the Complainant spent with Ms Rickard and Ms Shearer in the foyer). During the majority of that time, the Complainant was walking outside in the no-doubt brisk air of an early August morning, which may have facilitated a reduction of the degree to which she was impacted by intoxication. Nevertheless, she still crashed on her bed without getting changed or taking her hair clip out, with Ms Rickard needing to take off her shoes for her.
161․Having regard to the Complainant’s mental and physical presentation and, in particular, to the fact that she did not fully understand what was going on in the men’s bathroom and afterwards was not sure what had happened, I am satisfied beyond reasonable doubt that the Complainant was not capable of freely and voluntarily agreeing to the acts the Defendant performed in the men’s bathroom because of her level of intoxication. I am satisfied that the effect of her intoxication was so substantial that it meant that she was unable to consent.
162․I note that the Defendant submitted, in relation to Issue 3, that it is significant that Ms Rickard did not perceive the Complainant to be at such a level of intoxication that the Complainant could not consent. The Defendant pointed to the fact that Ms Rickard left them to kiss in the hallway outside the men’s bathroom and did not intervene when they were in the bathroom.
163․While the question as to whether the Complainant was too intoxicated to consent is, of course, a question for the Court, I accept that Ms Rickard was in a good position to make an assessment from her knowledge of the Complainant and her observations of the Complainant on the relevant evening. I also accept that her decision to leave the Defendant and the Complainant to their own devices in the bathroom provides some indication that she may have considered that the Complainant was capable of consenting.
164․However, her actions must be placed in the appropriate context. She had called the Complainant away from the Defendant when he was kissing her in the hallway precisely because she did have concerns about the Complainant’s comprehension as to what was happening. She checked on her when they were in the hallway outside the men’s bathroom because she maintained her concerns following her interaction with the Complainant on the couch.
165․Why she decided to respect the Defendant’s and the Complainant’s privacy, over her concern for the Complainant’s welfare, when she left them in the bathroom together (initially without saying anything and later when she gave them a 10 minute warning because K-Bar was closing) is unclear. Perhaps she thought that they were still kissing. She did not know what they were doing and she seemed to have been surprised and concerned to learn, later, that they were behind the locked door together.
166․Ultimately, Ms Rickard did not possess all of the evidence that is available to me and she did not have the opportunity for calm reflection that I have had. I have taken her actions into account, but remain of the view that, on all the evidence, there is no doubt that the Complainant was unable to consent because of intoxication.
167․This conclusion provides a further reason why I am satisfied that the Complainant did not consent to the acts engaged in by the Defendant. That is, even if, contrary to the conclusion I have reached on Issue 1, it was possible that the Complainant said or did something indicating her agreement to the acts that the Defendant performed, she was incapable of providing consent because of intoxication.
Issue 3 – Was the Defendant reckless as to the Complainant’s consent?
What is the test for recklessness?
168․It is the common law test for recklessness that applies to the offence of act of indecency: R v MZ (No 3) [2021] ACTSC 322.
169․In R v MZ (No 3) Loukas-Karlsson J stated at [25]:
As outlined in MZ v The Queen at [24] and R v Sutton at [19], recklessness is established in one of three ways:
(b) If the accused actually knew that the complainant did not consent; or
(c) If the accused realised there was a possibility that the complainant did not consent and went ahead anyway; or
(d) If the accused did not even consider the issue of consent and did not care whether the complainant consented.
170․I am not to take into account the possibility that the Defendant was intoxicated in deciding the Defendant’s knowledge (or recklessness) as to whether the Complainant consented to the relevant acts (s 67A(2)).
Parties’ submissions
Prosecution
171․The Prosecution says that the Complainant’s level of intoxication, and inability to look after herself towards the end of the evening, must have been obvious to the Defendant (and yet he proceeded to engage in the acts that he did).
172․The Prosecution further submits that any belief that the Defendant held that the Complainant was capable of consenting was unreasonable given her level of intoxication (relying on s 67(4)).
Defendant
173․The Defendant submits that it is important to understand what the Defendant knew at the time of the incidents. In this respect, he submits that he:
(1)did not observe the Complainant drinking excessively – she was just another member of the group;
(2)would not have observed signs of extreme intoxication – the Complainant was not incoherent, falling over or vomiting;
(3)would have observed the Complainant kissing him back;
(4)would have observed the Complainant being taken away by Ms Rickard into the karaoke room, but then continuing with him in the hallway; and
(5)would have observed Ms Rickard coming to check on the Complainant but then leaving them alone.
174․The Defendant submits that it is significant that Ms Rickard did not perceive the Complainant to be at such a level of intoxication that the Complainant could not consent. She left them to kiss, left them in the hallway and left them behind a closed a door. The Defendant submits that Ms Rickard might have been distracted from looking out for the Complainant, but there is no evidence that those distractions concerned anything important.
175․The Defendant notes that, apart from Ms Rickard, no one was concerned about the Complainant’s level of intoxication or expressed any concern for her safety (at least at K-Bar).
176․The Defendant submits that the Prosecution has not established that the Defendant knew that the Complainant was not consenting, nor that he must have realised that she did not consent and went ahead anyway and nor that he did not consider the question of consent and did not care whether the Complainant consented or not.
Consideration
177․As I have found earlier in these reasons, I am not satisfied that the Complainant’s action in kissing the Defendant in the hallway did not amount to agreement by conduct, nor that the impact of the Complainant’s intoxication on her level of functioning was such that she was incapable of agreeing to the Defendant kissing her in the hallway. Accordingly, my consideration of whether the Defendant was reckless as to the Complainant’s consent only concerns the bathroom incident.
Recklessness as to lack of consent to the acts performed in the bathroom
178․I have found that the Complainant did not do or say anything to indicate that she consented to the Defendant pulling her pants and underwear down and bending her over. The Defendant thus knew that he performed those acts without the Complainant’s consent.
179․The Defendant could not assume, from the fact that the Complainant went into the bathroom with him, that she consented to the acts he performed on her in there. She did not want to be in the men’s bathroom and it was the Defendant who led her into the bathroom with him.
180․Even if the Complainant had agreed to go into the bathroom with the Defendant, it does not follow that she consented to whatever sexual acts the Defendant wanted to perform in there.
181․Nor could the Defendant assume that, because the Complainant kissed him back to some extent in the hallway, she consented to a different sexual act in the men’s bathroom (s 67(2)).
Recklessness as to the effect of the Complainant’s intoxication
182․The Defendant submits that he did not observe the Complainant drinking excessively, however the evidence does not support such a finding. There is no evidence as to whether the Defendant observed the number of drinks that the Complainant consumed. If he was watching her closely, he would have seen her drink six drinks prior to arriving at K-Bar, by which time she was at or approaching a medium level of intoxication, followed by several glasses of wine, possibly in addition to spirits. That is an excessive amount of alcohol.
183․Whether or not the Defendant was paying attention to the volume of alcohol that the Complainant was consuming, he would have observed that she was significantly intoxicated at the time he kissed her and led her to the men’s bathroom, being around an 8 out of 10 level of intoxication. He would have observed that the Complainant appeared more intoxicated than anyone else and that there had been a significant shift in her presentation since the time he was singing with her in the karaoke room.
184․At the time that the Defendant kissed the Complainant in the hallway, he may not have appreciated the impact of the Complainant’s level of intoxication, particularly given the Complainant’s capacity to respond to Ms Rickard calling her from the karaoke room.
185․Having said that, his experience kissing the Complainant, both in the hallway outside the karaoke room and outside the men’s bathroom, was that she was not an active participant. Ms Rickard observed that she was stiff. The Complainant was only kissing the Defendant back minimally.
186․It would be unusual for a person to participate in a kiss in that way unless they were an unwilling participant or impacted by intoxication (or both). In my view, it must have been apparent to the Defendant that the Complainant’s engagement with him was impacted to some extent by her intoxication, particularly as that lack of engagement continued during the bathroom incident.
187․Further, as I have found above, the Complainant’s level of physical functioning deteriorated between the hallway and bathroom incidents, most notably in relation to her walking capacity. It had changed from a subtle sway to the Complainant not being able to hold herself up well. She needed assistance to guide her.
188․The Defendant would have observed the Complainant walking away from him in the hallway to the karaoke room. Having led her to the bathroom, the Defendant must have realised that she was not steady on her feet at the time of the bathroom incident. He would also have observed that she was drowsy and her eyes were pretty much closed.
189․The Defendant was also aware that Ms Rickard had shown concern in relation to the Complainant’s engagement with the Defendant. She had called the Complainant away from the Defendant when he was kissing her in the hallway and she had checked on the Complainant when the Defendant was kissing her outside the men’s bathroom. The Defendant must have realised that Ms Rickard was concerned for the Complainant’s welfare and, given the Complainant’s presentation, the Defendant must have realised that it was possible that Ms Rickard was concerned that the Complainant could not look after herself because of the level of her intoxication.
190․That is so, even though Ms Rickard did not intervene when she saw them kissing outside the men’s bathroom, or when she initially advised them that K-Bar was closing. Ms Rickard’s observation of them kissing outside the men’s bathroom was brief and it must have been obvious to the Defendant that Ms Rickard was checking on them.
191․At that stage too, the sexual acts engaged in by the Defendant had not progressed beyond kissing the Complainant. To the extent that the Defendant’s assessment of the Complainant’s capacity to consent was influenced by Ms Rickard’s actions, he would have appreciated that Ms Rickard’s concern for her friend’s capacity to consent to the Defendant kissing her would be of a different level to any concern she might have with respect to the Complainant’s capacity to consent to other sexual acts.
192․Ms Rickard’s decision to leave the Defendant and the Complainant in the bathroom together, and to simply provide a 10 minute warning when the K-Bar was closing, does lend greater support for the view that she considered that the Complainant was capable of consenting to the Defendant’s actions. However, as I have noted in relation to Issue 2, she did not know what the Defendant and the Complainant were doing and she seemed to have been surprised and concerned to learn, later, that they were behind the locked door together.
193․Regardless, I do not consider that Ms Rickard’s decision to give the Defendant and the Complainant a time warning, rather than demand their exit, played any part in the Defendant’s assessment of the Complainant’s capacity to consent. The combination of matters I have referred to above must have caused the Defendant to realise that:
(1)the Complainant was not just drunk, but significantly intoxicated; and
(2)it was possible that the effect of the Complainant’s intoxication was so substantial that it meant that she was incapable of giving informed, free and voluntary agreement to the acts he engaged in.
194․Yet, the Defendant went ahead anyway. As I found in relation to Issue 1, he did so despite the fact that the Complainant did not participate in those acts.
195․The Defendant submits that I should make something of the fact that the Complainant continued to kiss him in the hallway after she spoke with Ms Rickard. The fact that she kissed him back provides some indication that she was capable of consenting to the kiss, however the manner in which she did so cast doubt on that capability. I also note that it was most likely to have been the Defendant who led the Complainant away from the karaoke room and down the hall and that it was he who initiated the kiss with the Complainant outside the men’s bathroom, rather than the Complainant having initiated any of that conduct.
196․I am satisfied, beyond reasonable doubt, that the Defendant realised that there was a possibility that the Complainant was unable to consent to the acts he performed on her in the bathroom, because of intoxication, but he performed those acts anyway.
Decision
197․As to the first charge – proceedings CC2023/9995 (the hallway incident), I am not satisfied that the Prosecution has established that the Complainant did not consent to the Defendant kissing her, nor that she was incapable of consenting to that act because of intoxication. Accordingly, I find the Defendant not guilty of the offence charged.
198․As to the second charge – proceedings CC2023/9996 (the bathroom incident), I am satisfied that the Prosecution has established that the Complainant did not consent to the Defendant pulling her pants and underwear down and bending her over and, further, that the Complainant was incapable of giving consent to those acts in any event because of intoxication. I am also satisfied that the Defendant knew that the Complainant did not consent to those acts and, further, that he realised that there was a possibility that the Complainant was incapable of consenting because of intoxication but went ahead anyway. Accordingly, I find the Defendant guilty of the offence charged.
| I certify that the preceding one-hundred and ninety-eight [198] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Temby. Associate: Niamh Dwyer Date: 21 January 2025 |
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