R v Ajw - [2004] SADC 127

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v AJW
Criminal Trial by Judge Alone
Reasons for the Verdict of His Honour Chief Judge Worthington
9 September 2004
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Rape: count 1 - Unlawful sexual intercourse (alternative): count 2 - complainant grossly intoxicated - "recovered memory" of events not reliable evidence - circumstantial evidence - intermediate facts: degree of proof - credibility of accused - guilty of rape.
Criminal Law Consolidation Act 1935 ss48 and 49(3) , referred to.
Shepherd v R (No 5) (1990) 170 CLR 573, applied.
The Queen v Calides (1983) 34 SASR 355, considered.

R v AJW
[2004] SADC 127

The accused, AJW, is charged with rape and unlawful sexual intercourse. It is alleged that on the night of 12-13 April 2003 in a country town in South Australia he had penile vaginal sexual intercourse with J, who was then aged 16 years 9 months, without her consent (count 1): s48 Criminal Law Consolidation Act 1935 (“CLCA”). He is charged in the alternative with unlawful sexual intercourse (count 2): s49(3) CLCA. J was born on 20 June 1986 and she is the youngest sister of E who is now married to the accused but was then his de facto partner.
The crime is alleged to have occurred while J was staying the night at the house occupied by the accused, E and their baby son who was four months old. That house was not far from where J lived with her parents, another sister, H, and her younger brother. J often visited E and the accused and, especially, once the baby was born, to spend time with him; she was very fond of him. In the early part of 2003 she would go there most days to clean and help her sister look after the baby. However, she has only ever stayed overnight once, namely when the offence is alleged to have occurred.
Saturday 12 April was during school holidays and in the late afternoon or early evening J met the accused and E in the street while they were taking the baby for a walk. She got her mother’s permission to stay the night with them. It was decided that they would buy some alcohol and the accused, either alone or with E, bought a bottle of Jim Beam (Bourbon) and two packs of Red Bears at the local hotel. Red Bear is a flavoured vodka based pre-mixed drink in a 440 mls can with four cans in a pack. J went to her parent’s home where she collected her sleeping bag and some sleepwear which she put into a backpack, and then drove to the accused’s house.
I shall come to more detail shortly but the Crown case can be summarised as follows. J started drinking soon after she got there, and within a few hours she was grossly intoxicated. She made a number of phone calls to people she knew. She began vomiting and passed out. It is not clear how many times she lapsed in and out of consciousness but during the night it was a number of times. She was in a mess and needed to be cleaned up. Through the joint efforts of the accused, E and the accused’s brother, S, who had also come round to their place, she was taken to the bathroom, put into the bath fully clothed and washed. The accused and E then took off her wet clothes, put on some nightwear and put her into her sleeping bag in a spare bedroom. S left the house at about 11.30pm and, eventually, after watching a movie, the accused and E went to bed leaving J in her sleeping bag which by then she had moved to the doorway between the lounge and the kitchen, near the house telephone. It is the Crown case that some time later the accused removed her pyjama pants and her knickers and raped her. The accused denies that there was any sexual activity whatsoever between himself and J.
To establish its case the Crown must prove beyond reasonable doubt that the accused had sexual intercourse with J without her consent, either knowing that she was not consenting or being recklessly indifferent as to whether she was consenting. To do that the prosecution must prove three elements beyond reasonable doubt:
1.That the accused had sexual intercourse with J, in that he intentionally penetrated her labia majora with his penis.
2.That J did not consent to the accused having sexual intercourse with her.
3.That the accused either knew that J was not consenting or was recklessly indifferent as to whether she was consenting. It would be reckless indifference if the accused realised that J might not be consenting, but went ahead and had sexual intercourse with her irrespective of whether she was consenting or not.
The accused has given evidence on oath and has denied that there was any impropriety at all. Bearing in mind the circumstances in which the offence is alleged to have occurred, including the age of the complainant, the law states clearly that it is necessary to scrutinise J’s evidence very closely. Unless her evidence stands up to that scrutiny and the court is satisfied that it is reliable and accurate, there could be no question of the accused being convicted. It is not for the accused to prove anything. The onus rests on the Crown. The question is whether on the whole of the evidence I am satisfied beyond reasonable doubt that the accused has committed rape as charged in count 1. If I am not so satisfied the verdict must be not guilty. The same applies to the alternative in count 2 if it becomes relevant. At all times the onus rests on the prosecution and if at the end of the case, after a full and careful consideration of all the evidence, the court is unable to say where the truth lies in respect of a count, then the verdict on it must be not guilty because the prosecution will not have proved its case: The Queen v Calides (1983) 34 SASR 355.
Apart from giving evidence in court J gave two statements to the police and it is necessary to explore all of this.
J’S FIRST STATEMENT
J made her first statement about four weeks after that night when she spoke to a policewoman on Friday 9 May 2003. She told the police officer that she began her drinking that night with a can of Red Bear while they were getting tea ready at about 6.00pm. She had a couple of pieces of pizza and a few Burger Rings later on. While she rang a few of her friends in Adelaide she had a glass of Jim Beam and Coke that the accused had mixed for her. At about 8.00pm she sat down to watch some television while she drank another can of Red Bear. By then was starting to feel “a little bit drunk”. She spoke to some more friends on the telephone and at about 9.30pm she had another Jim Beam which seemed stronger than the first one. She remembered going to the toilet and starting to feel “drunk on my feet”. She remembered returning to the lounge room and talking on the telephone again but she must have passed out because, she told the police officer, she did not remember anything else until about 6.00am when she woke up in her sleeping bag on the lounge room floor. When she woke up she had her Winnie the Pooh pyjama top on but the pyjama bottoms and her purple lace knickers were on the floor next to her head. She said that she did not know how she had changed from the clothes she had been wearing the previous evening into her pyjamas. She felt dizzy and light headed. Her sleeping bag has a zip down one side and she noticed that it was undone almost to the bottom. She continued:
“I reached out and grabbed my knickers and bottoms and I put them on. I got up to go to the toilet and to check on [the baby]. As I was walking to the toilet I could feel some discharge come out of me from down below, it felt quite strange. I went to the toilet and I took my bottoms down and I saw there was creamy white discharge in my knickers, I was not sure why this had come out of me.”
She told the police officer that she went back to sleep until about 8.00am when the baby cried and she gave him a bottle. After she changed his nappy she took him into the bedroom where her sister and the accused were in bed together and she continued:
“Then [the accused] said to me, ‘I had sex with you last night.’ I said, ‘What did you just say?’ and he said, ‘I had sex with you last night’”.
She said that she went back to her own house to shower and change into some clean clothes. She described going back to the accused’s house for a short time, then doing other things including having lunch at her grandmother’s house. She continued:
“I went back to [the accused’s and E’s] house later that day and [the accused] kept bragging to me about how he had had sex with me. I just tried to ignore him while he was carrying on. I was not sure whether it had happened or not.”
J made another statement to the police on Friday 13 June 2003 but before coming to that, it is necessary to refer to some other evidence.
OTHER EVIDENCE
As a result of information received, on 8 May police seized clothing J had worn that night, including the purple knickers, and the sleeping bag and sent them for forensic analysis. Although it appears that the knickers had been washed since they were worn that night, low levels of sperm were observed on smears prepared from samples taken from the crotch and DNA profiles obtained from the sperm fractions matched the DNA profile of the accused. Two areas of semen staining were detected on the inside lining of the sleeping bag and samples were taken from each. No reading could be obtained from one of them but the DNA profile of the other one matched the DNA of the accused. There is no contest about the chain of evidence or the findings on DNA testing, and the results can be summarized by saying that any other reasonable possibility having been excluded, the sperm fractions from the crotch of the knickers and from the inside lining of the sleeping bag were deposited by the accused. There were no other forensic results of any relevance in relation to the other items taken by the police. The only other man present on the night of 12-13 April was the accused’s brother S and, for the sake of completeness, DNA testing was done on a buccal swab obtained from him. He was excluded as a possible source of the DNA obtained from the samples taken from the knickers and the sleeping bag.
The accused, E and S all gave evidence about the events of the night and, to the extent that this evidence is uncontentious, it can be combined to give an overall picture of what occurred until the time when the accused and E went to bed. I shall make some observations about the evidence of the accused and E in relation to contentious matters in due course, but it seemed straightforward enough in this area. Although, as one would expect, there are some differences in their recollections their evidence is to the following effect.
The early part of the evening was basically as described by J in her statement of 9 May. Although E had a slightly different recollection about when the alcohol was purchased nothing turns on that. Over the period of a few hours J drank Jim Beam and Coke and some Red Bears and gradually became more and more intoxicated. She spent a lot of time talking on the telephone to people she knew. S said that he came to the house at about 8.30-9.00pm because of a phone call during which J invited him to come around. It appears that none of the others drank much alcohol; although each of them had some, there is no evidence to suggest that anyone was appreciably affected by it. In particular, the accused said that he had two cans of Red Bear and one glass of Jim Beam and Coke. The evidence does not suggest that either his memory of events or his capacity to know what he was doing that night was impaired by alcohol. J became grossly intoxicated to the point where she could not walk unaided and eventually, probably around 10.00pm, she vomited on the floor, on the lounge and over her own clothes. Between them, they got her to the bathroom, put her in the bath and doused her with water to get the worst of the vomit off her clothes and to try to sober her up.
She passed out a number of times during the night. It is not possible to be precise about when that happened but it occurred at least once before she was taken to the bathroom. She was incapable of looking after herself after she was taken from the bath and was assisted to the spare bedroom where the accused and E took off her wet clothes and put on clean nightwear that she had brought with her. For reasons I will develop in due course, I am satisfied that this was a pair of purple knickers with lacy front and purple pyjamas, long sleeve top and long pants, with a Winnie the Pooh motif on them. Her sleeping bag was put on the bed, she was put into it and she appeared to go to sleep.
A short time later she came out to the lounge room where the other three were sitting and sat on S’s lap. Within a couple of minutes she lost consciousness and was taken back to bed. She woke up again and wanted to talk, so the others sat and talked with her in the spare room for some time until S tired of it and decided to go home. By this time it was probably getting close to midnight. Either at the time S left or shortly afterwards, J dragged her sleeping bag from the spare room to a position near the house phone that was fixed to the wall adjacent to the doorway from the lounge to the kitchen.
The house phone had a lot of use that night. It is not possible to be certain who made what calls but clearly, many of them were made by J. For example, Telstra records show 10 calls to the mobile phone of her friend Daniel M between 8.00pm and 4.00am; some calls were only a matter of seconds but others were longer, one at 1.30am for about 20 minutes. A declaration by Daniel M was put into evidence. He can remember getting a phone call from her early one Sunday morning when she was staying at E’s house and she seemed to be drunk. He mentions only the one call but it must be borne in mind that he did not provide his statement until 15 months later, in July 2004. Moreover, I do not know what questions were asked of him during the preparation of the declaration.
The accused and E said that after S left they watched a movie which finished in the early hours of the morning, somewhere around 1.00am-2.00am. Their evidence does not make clear what J was doing while they were watching the movie but it seems that, at least for some of the time, she would have been using the telephone. I shall return to their evidence about the rest of the night in due course.
J’S SECOND STATEMENT
J made another statement to the police on Friday 13 June 2003. Her description of events leading up to the time she passed out while talking to a friend on the phone is much as she told police on 9 May, although with a little more detail, but there is a significant difference between the statements in what she remembers after that. Whereas on 9 May she said that she had no memory of anything between the time she passed out and about 6.00am the next morning, on 13 June she gave police a lot of detail.
She said that her next recollection after passing out was being on the bathroom floor and the accused, E and S with her. She recalled lying on the floor, crying and saying that she wanted to talk to Daniel M, who was the person she had been talking to when she passed out. She remembered being cold, that her clothes were wet and that somehow she got to the spare room. She remembered someone trying to hold her up and being undressed, someone putting something over her head and someone trying to lift her leg up. She said that somehow she got from the spare room back to the lounge room and she remembered sitting on S’s lap while he was in a rocking chair. She said that she remembered trying to talk to him but she must have passed out. She remembered being carried by someone and the feeling of going down a step.
She told police that she woke up on the bed in the spare room and that the accused, E and S were all there. She asked for another blanket because she was cold but E could not find one. She remembered getting up, going to the toilet and then going back to the spare room and getting into her sleeping bag. She remembered S sitting on the edge of the bed near her head talking to her. She remembered him leaving the house and getting out of bed to say goodbye to him. She remembered taking her sleeping bag and putting it on the floor in the doorway between the lounge and the kitchen because it was warmer there. She remembered being in her sleeping bag there and talking on the telephone to T, another brother of the accused. At that time the accused was sitting on the end of her sleeping bag and, she said, she thinks she passed out again.
She told police that she woke up, was aware that she was on her back, and could feel a finger moving around in her vagina. It hurt. She could not remember if she opened her eyes. She recalled turning over onto her stomach and going back to sleep but this was uncomfortable so she rolled onto her back again. She could feel someone lying on top of her and something hard in her vagina moving in and out; she could feel that her legs were apart and that she had no pants on. She said that it hurt “but I didn’t seem to be able to do anything about it as I was too tired. I do remember a smoky smell. I must have gone back to sleep.”
She then went on to describe waking up at about 6.00am, discovering that her pyjama pants and knickers were lying on the floor by her head and that the zip on her sleeping bag was undone. Her description of what followed is similar to what she told police on 9 May including feeling a liquid come out of her vagina and noticing the discharge in her knickers, but adding: “When I did a wee it stung inside my vagina. I just assumed that I was getting my period.”

She attended to the baby and took him into the main bedroom. After going back to her house with E to change, she and E returned at about 9.30-10.00am. The accused was at the computer, and the following occurred:
“He said ‘I had sex with you last night.’ I said ‘Yeah, sure’, and kept walking into the house. I didn’t believe him. [E] was right behind me walking in the door so I am sure that she would have heard.”
She had no memory of vomiting during the night. It was only when she noticed some vomit under the end of her sleeping bag that she asked and was told about that. She continued:
“Later that morning [the accused] again said, ‘I had sex with you last night’. This was also said in front of [S] and [E]. By now I was starting to think about it. He also made reference to the same thing another two or three times that day. Once he said to me, ‘I woke up in the middle of the night and your pants were off’. He openly made these comments in front of [E] and [S], he appeared to be bragging. I really didn’t take much notice of his face when he spoke so I can’t say what facial expressions he had. As the day went on and I thought about it more I was getting really concerned, but I never answered him and kept ignoring him.”
J’S EVIDENCE
In court J repeated substantially what she had told police on 13 June 2003 but with some additions. I leave aside relatively minor variations but her description of being aware of sexual interference was more detailed. She said that she could remember the zip of her sleeping bag being down, that her pyjama pants and knickers were off and that while she was lying on her back, she could feel something moving inside her vagina. Her evidence in chief continued (Tx57-58):
"QYou remember feeling something inside your vagina?
AYes. And then I turned over, because it felt a bit uncomfortable and then it came out of my vagina, and then it had gone for a little while, and then I laid back on my back again, because I find it easier to sleep on my back, and then something hard went inside me.
QWhen you say inside you.
AInside my vagina.
QYes.
AAnd I woke up slightly, and I saw [the accused] laying on top of me, and I was too tired and too worn out and I wasn’t strong enough to push him off, so I didn’t really worry about it ……….”

She then described waking up, finding her knickers and pyjama pants above her head and, as she went to the toilet, “this big gush of stuff came out of my vagina”. She described seeing “green liquidy stuff” in the crotch of her knickers (Tx58-59). She repeated what she had told police on 9 May about the accused telling her in the bedroom that he had “had sex” with her that night and she also repeated what she had told police on 13 June, namely that he said this just after she returned from her parents’ place about mid morning. She also said that he repeated that comment a number of times in the presence of E and S, she thought about three or four times, in the hour or so between arriving back at the accused’s house and going to her grandmother’s house for lunch. She said that he seemed happy about it and when asked whether she made any response she said “I’m like ‘Yeah right’” (Tx64). It was clear from the way she said this that she was indicating disbelief, even derision.
A little later in her evidence in chief she said that after the accused had made the comment the second time “it was starting to click that he did it, had sex with me last night.” (Tx66-67). She said it was then that she had the recollection of what she had felt in her vagina the night before. She again described the recollection in similar terms to the passage I have quoted from her evidence but added that she could smell “cigarette smoke and bad BO” (Tx67). These are features she has often noticed about the accused.
J was an impressive witness. She was frank and straightforward and did her best to give a truthful and accurate account of events as she remembered them. I am satisfied that when she gave her evidence she honestly believed that she was recounting her memory of what happened at the time. However, there are inconsistencies. For example, she confirmed in evidence that what she told police on 9 May 2003, when she said that she could remember nothing between when she passed out while talking on the phone and about 6.00am, was true as she remembered things at the time, yet in her evidence in chief she claimed to have had a fairly detailed recollection of vaginal penetration as early as Sunday 13 April.
By late April there was a rumour around the town that something had happened to J that night. It had reached the ears of the police officer stationed at the town by 28 April and, as will be clear from evidence that I shall refer to shortly, there were others who had heard about the events of that night. There had been discussions about that night involving both J and her mother. It cannot be said that it is impossible that J has had a gradual recovery of memory, albeit patchy, but even if she has, as can be seen from the example I referred to a moment ago, there is still inconsistency.
I must keep in mind J’s age and the fact that she was very drunk on the night in question. It is clear also that in the following weeks there was talk, not only in the town, but also within J’s family about the events of that night. The town’s police officer was making enquiries directed at ascertaining whether there had been sexual intercourse. There seems to be no reason why J would not have been frank about what she could recall when she spoke to the police on 9 May. There is the possibility of embarrassment holding her back, but this would not sit with her preparedness to speak so openly on subsequent occasions. It is unlikely that she would have refrained from saying anything because she was afraid of her parents finding out. Given that what she did say later carries the clear implication that she was taken advantage of, one would expect that she would have had more cause to be worried about getting into trouble for being drunk. Yet she was quite frank about that. I am satisfied about the candour and reliability of her statement on 9 May so that is a safe starting point.
While I cannot exclude the possibility that there has been some independent recollection after 9 May there is a strong probability that much, if not all, of her apparently improved recollection is reconstruction based on what she has heard about what happened that night after she passed out and the focus on whether there was an act of sexual intercourse. Her evidence has gone from being completely unaware of any molestation as at 9 May 2003; to a partial awareness on 13 June 2003 of being penetrated by someone with “a smoky smell” but probably not opening her eyes; to now remembering that she saw and identified the accused on top of her while he had sexual intercourse. It is one thing to say that she has spoken of her belief on each occasion after 9 May, but it is another to be satisfied of its accuracy. It is not possible to say what (if anything) is truly memory and what is the result of things she has been told, impressions she has gained or inferences she has drawn. Her evidence about what occurred between about 9.30 or 10.00pm on Saturday 12 April and about 6.00am on Sunday 13 April is not sufficiently reliable to act upon, and the case must be considered without regard to it.
CIRCUMSTANTIAL EVIDENCE
J was examined by a medical practitioner, but this was not until 2 May 2003 and there were no findings that assist one way or the other.
The Crown case is based principally on circumstantial evidence. I must be conscious that if an inference adverse to the accused is to be drawn from a fact or circumstance it must be proved, but if the accused seeks to draw an inference from a fact or circumstance which may be consistent with innocence, that fact or circumstance need not be proved. It is enough if the existence of that fact or circumstance is a reasonable possibility. In the end, it is not a matter of considering facts in isolation but of considering the united force of all the facts and circumstances proved and considering what inferences can be drawn from them. An inference of guilt cannot be drawn unless guilt is not only a rational inference to be drawn from those facts and circumstances, but in fact the only rational inference that can be drawn. If there is a reasonable hypothesis consistent with innocence there cannot be a finding of guilt.
Sometimes there are items of circumstantial evidence that should be regarded as crucial facts, indispensable links in the chain of reasoning, and they need to be proved individually beyond reasonable doubt: Shepherd v R (No 5) (1990) 170 CLR 573 per Dawson J at 579. In my opinion there are three such items in this case: (1) that the sperm samples taken from the purple knickers and the sleeping bag came from the accused, (2) that the knickers from which the sperm samples were taken were those that J put on when she woke up and (3) that those knickers have never been worn by E. There is no dispute about the first item and I find it proved beyond reasonable doubt that the sperm deposited on the knickers and the sleeping bag came from the accused.
THE PURPLE KNICKERS
J identified the purple knickers that were forensically examined and produced in court as the knickers she found on the floor near her sleeping bag when she woke up and which she then put on. She said she had brought them from home with her pyjamas in her backpack on the Saturday afternoon. At that time, although she planned to wear the same clothing (jeans etc.) next day as she was wearing that afternoon, she intended to take a shower in the morning and so she brought fresh knickers with her. She was very conscious of these knickers because, she said, her mother had given them to her only a day or two before and this was to be the first time she would wear them.
J’s mother said that she bought most of J’s clothing and that she was familiar with what J liked. She said that J’s preference in underwear was different from that of her other daughters: “she’d wear – what do you call them? – a G-string thing, whereas none of the other children wore them” (Tx108). The other two daughters, E and H, preferred fairly plain cotton knickers. She identified the purple knickers in evidence and said that she had bought them for J in Port Pirie a short time, probably a couple of weeks, before J stayed the night with the accused and E. She remembered getting them for a very good price and buying a matching bra for J at the same time.
Evidence was given by the accused, E and the accused’s sister, CS, about the provenance of the knickers. There was a strenuous challenge to that evidence and the Crown was permitted to call evidence in rebuttal. The contest can be summarized in the following way.
J said that after she showered at her home on the Sunday morning she left the purple knickers there with her other clothing and that they would have been washed within a couple of days. J’s mother’s evidence indicates that this was quite likely. As far as J could remember she did not wear them again before the police collected them from her home on 8 May.
In evidence in chief the accused said that these knickers belonged to E. He had bought them for her as a present to mark the second year anniversary of their being together, which would have been in January 2003. He said that he paid $29.95 for them and he named the store in the town where he bought them. He said he also bought some socks and a black short nightgown with matching black pants that had “little red love hearts” on them. In cross examination there was some uncertainty about whether all these items had been bought on the one occasion but eventually he said that they had. He was pressed further and when asked if he chose them himself he said (Tx225): “My sister is the one that actually chose them for me to buy them for [E]”(sic). He said that CS helped him pick them out “because I don’t know what females like and what they don’t like” (Tx225). However, he confirmed that E’s underpants were usually plain but he had decided to buy her something fancy: “I liked the fancy pattern” (Tx226). These were the only pair of E’s underpants that were not plain.
During evidence in chief when he was asked (Tx188): “Do you recall speaking with [J] in the morning” he volunteered the following answer:
“9 o’clock when she woke up, but we did hear someone approaching our room early in the morning because we had a couple of plastic bags filled up with cans and bottles and someone brushed against it and [E] woke up at 8 o’clock to put her knickers back on – [E] going to put her knickers on, and found out it wasn’t on the side of the bed, on the floor where it’s supposed to have been.” (sic)
He also emphasised that these knickers used to have a stain in the crotch which he well remembered. Yet in cross examination he said that the first time he had ever noticed that stain was on the occasion that J stayed overnight, and it is common ground that he did not see the knickers again after that night. When asked what drew his attention to the stain he said (Tx228):
“Every time, because [E] and I, we try and have more kids and the semen, most of it doesn’t stay up, it comes all out and that’s how it got on the – must have got on the knickers because I only usually put her knickers down to her knees.”
Again he was asked if he actually saw the stain on the crotch of the pants on 12 April. He said:
“Yes, when [E] told me she felt something wet and sticky when she took her knickers off and put it on the side of the bed on the floor where she was sleeping.”
He said that after they went to bed that night they “had sex” but “before we had sex she got me to pull her knickers down to her knees”.
Eventually, the accused agreed that what he was saying was that at some time in the early morning J had come into the bedroom, taken E’s knickers (which were wet and sticky when E discarded them) off the floor by the side of the bed and put them on. This is so inherently unlikely that it is preposterous.
I do not believe that he purchased the knickers. His sister, CS, was called to give evidence. She was a most unimpressive witness. She denied that she was with him when he bought them. In fact, she said, she would only ever go shopping with him to get food or something similar. She claimed that she was walking to the shops in the town from her mother’s place when she met the accused in the street and he showed her some purple lace knickers that he said he had bought from a shop in the town for E to mark their second anniversary. The shop is the same one he named in evidence, but she used the name by which it had been known previously.
She looked closely at the knickers in the courtroom and said that they were exactly like the ones he showed her. In the course of questioning she disclosed that she was well aware that her brother’s DNA had been found on the sleeping bag and on the knickers. She said that when he was telling her late last year or early this year about the DNA testing, she was the one who reminded him that he had in fact bought a pair of purple knickers for E. The flavour of her evidence can be gained from the following (Tx266):
“Q You said that to him.
AYes.
QSo it wasn’t him saying to you about purple lacy knickers.
ANo, he told me about the purple lacy knickers and I said ‘Hang on, I thought you had bought [E] one’, and he goes ‘Yeah’.
QHe said ‘Yeah, remember that pair I showed you in the street as we were walking back from the shops?’
AYes.
HIS HONOUR
QDid he* say that, or did you remind him that it was the pair that he showed you.
AI actually reminded him about it. He said something about –
QJust answer the question carefully.
AHe actually said about the purple lace knickers and I said ‘Hang on, I thought you bought [E] a pair of lacy purple knickers’, and he said ‘Yes, I did, but they got taken away for testing and that’.”
(* transcript correction)
This followed an earlier answer where she had said (Tx264): “He told me that [J] flogged them from [E], like, because they were on the floor, and she came in the bedroom and flogged them and wore them.”
Both from what she said and how she gave her evidence, it was obvious that CS tried to assist her brother by providing an explanation for how his semen could be on the knickers. But there was a difference in their versions about a significant matter, namely whether she was with him when the knickers were purchased. There may be a reason for that. I became so concerned about whether the accused may have been inventing evidence during cross examination that, although he had been on bail, I put him into custody until the other defence witnesses had completed their evidence later in the day, so that he could not mix with them. He did not get the opportunity to speak to CS after he first said, during cross examination, that she had been with him in the store and had helped him buy the knickers. But whatever the reason, there is a glaring inconsistency.
Quite apart from the unsatisfactory evidence given by the accused and CS about his purchasing the knickers for E at the store in town, any possible room for doubt was removed by evidence in rebuttal from the woman who has been an owner of the store since March 2001 and an employee who has worked there for more than 20 years. The brand of the purple knickers produced in court is “Phoenix + International”. The combined effect of their evidence, which I accept, is that for at least the last 20 years that store has never sold that brand and that those knickers were not bought from that store.
E identified the knickers in court as hers saying that she recognised the lace. She said that they were the only pair of lacy knickers she had and that she used to wear them all the time. But the last time she saw them was “That night they were next to my bed.” (Tx279) She said that J had a pair that were similar but there was a slight difference in the lace.
Her evidence about what occurred with the knickers on the night is different from the accused’s. She said that after watching the movie she and the accused went into the bedroom and they both took their clothes off: “Then we just hopped into bed and did our business” (Tx282). By that she meant having sexual intercourse. When she went to the toilet at about 4.00am she could not find the knickers by the side of the bed where she had left them with her other clothes; they had disappeared. She said that the accused also got up at 4.00am to attend to the baby. She described an incident involving J that she and the accused saw on their way back to the bedroom, and I shall refer to that later, but, as relevant here, she said that she saw her knickers on the floor near the doorway next to J. The cross examination continued (Tx286):
"QSo you said to yourself, I take it ‘There’s my knickers. I’ll take them back with me’.
AYes.
QAnd you did that.
ABy the sleeping bag, I left them.
QWhy.
ABecause I was too tired to do anything.
QWhat on earth does that mean. Why not just pick up your knickers and take them back to the bedroom.
ABecause I just didn’t have the energy.”
The accused was also cross examined about that after he said that the knickers he saw by the side of the sleeping bag looked like E’s (Tx239):
"QDid you think that was strange, that a pair of knickers that looked like the ones you had bought for [E] were near [J] and her sleeping bag at that time of the night.
AYes, I did think it was a bit strange. That’s when I told [E] it looks a bit strange finding the knickers here when it’s supposed to be – when we found it was missing from the floor in the bedroom.” (sic)
E may or may not have seen some knickers on the lounge room floor in the early hours of the morning but this story about them being hers is unbelievable. I formed the opinion that neither the accused nor E is very intelligent. Indeed, with regard to the accused, there is evidence to show that his level of functioning is such that he could be described as having a moderate to severe intellectual disability. Nonetheless, however, he clearly understood the significance of the DNA findings and the potential for inferences to be drawn from the presence of his sperm on the knickers, and E was equally aware of that.
E was not a reliable witness. From observing her on the video of the police interview with the accused and in court, I formed the opinion that she was extremely deferential to the accused and utterly supportive of him. As can be seen from her evidence she prevaricated and, in my opinion, was prepared to say whatever she thought would assist him. Even then, however, there was an inconsistency between her evidence and that of the accused about whether she wore those knickers after they supposedly had intercourse on the night in question. His version was that they had sexual intercourse while she had the knickers around her knees and that she pulled them up afterwards. Her version was that once they came off, which was before intercourse, they were not put on again.
There were other occasions on which the accused and E gave untruthful evidence and I shall come to some of them shortly. However, it is appropriate to say at this stage that I formed a very low opinion of the credibility of each of them, and I am unable to rely on their evidence unless it is supported by some other independent reliable evidence or it relates to matters that are not contentious or are of little consequence. I make it clear, however, that as far as the accused is concerned I took account of this untruthfulness only in relation to his credibility and the reliability of his evidence. I have not made any other use of it and, indeed, it was not suggested by the Crown that I should do otherwise.
When the accused was interviewed by police he said that after J had been in the bath, she was put into dry clothes: purple pyjamas with knickers underneath. He said that he did not know what colour the knickers were because he did not bother looking. E was present during that interview. When he was talking about this she interjected to say that the pyjamas had Pooh Bear pictures on them, but she did not say anything when he said that they had put knickers on J. During cross examination he confirmed what he had told the police. In short it was his evidence that J had knickers on under the purple pyjamas.

E was asked in cross examination about dressing J. She confirmed that J had brought with her the pyjamas and a pair of knickers, which she said were Pooh Bear knickers and not lacy ones. These were all in her bag which was next to the bed in the spare room. However, she said, when she dressed J she only put on the pyjamas; she left the knickers in the bag. She gave these answers just before she described how she had left her own almost identical purple lace knickers next to the bed and how they subsequently disappeared during the night, but, fortuitously, were found (and left) by her at 4.00am next to J on the lounge room floor.
I accept the combined evidence of J and her mother that the first time these knickers were worn was when they were put on J after her wet clothes were removed and that there would not have been any occasion when E would have borrowed them before or after that night. There was no evidence to suggest that any of the accused’s or E’s clothing was washed with any of J’s clothing at that time. The only evidence on the topic was from J’s mother and she was quite sure that would not have happened.
I am satisfied that the Crown has proved beyond reasonable doubt that the purple knickers from which the traces of the accused’s sperm were obtained belonged to J, that she had brought them with her that evening from her home in her back-pack and that, after her wet clothes were removed, those knickers were put on her under her pyjama pants. I am also satisfied beyond reasonable doubt that those knickers have never been worn by E.
THE SLEEPING BAG
Both the accused and E offered explanations as to how sperm from the accused could have got onto the inside lining of the sleeping bag other than on the night in question. These explanations were also at odds. I can deal with the evidence fairly briefly.
J has had the sleeping bag since she was about 5 or 6 years old and she used it when the family went camping regularly after Christmas at Port Rickaby. E and the accused began to associate in 2001 and J’s mother said that they had never stayed overnight with them at Port Rickaby. She said that J’s sleeping bag was kept in her bedroom at home and that E had never borrowed it.
The accused said in evidence that, as was common, the family was at Port Rickaby in early January 2003, as were members of the wider family – e.g., aunts, uncles and cousins of J. E’s son had been born by caesarean section on 19 December 2002 and when the baby was about 3 or 4 weeks old the accused said that he and E took the baby to visit the family at the Port Rickaby Caravan Park. He said that the baby was taken by J and others for a walk and that he and E went for a walk in the sand hills. When they came back to the caravan there was no one there, and they “got a bit frisky and that’s when we had a bit of sex” in the annexe attached to J’s parents’ caravan (Tx217). He said “We started hugging and kissing, and that’s when we started having sex” (Tx219) and that this was on J’s sleeping bag which happened to be in the annexe. He remembered this well because this was the first time that he and E had sexual intercourse after the birth of the baby. He also said that this was the only occasion on which his semen could possibly have come into contact with J’s sleeping bag.
In her evidence in chief E said that there was one night when she and the accused stayed the night at Port Rickaby, probably in January 2002. She said that they slept in J’s sleeping bag in the annexe because J was not there that night, and that they had sex. In cross examination she said that there was only ever one occasion when they stayed overnight at Port Rickaby and had sex, as far as she could remember, and that was before the baby was born. She recalled going to Port Rickaby to see her parents and other relatives in January 2003 shortly after the baby was born; she thought he was about a month or a month and a half old. She was adamant that they did not have sex at all during that visit; indeed she agreed that she had only had the caesarean a short time beforehand and at that stage she was not having sexual intercourse with the accused at all.
I accept the evidence of J’s mother that there was never any occasion when the accused and E stayed overnight with the family at Port Rickaby. I therefore reject the evidence of E that this did happen. I do not accept the evidence of the accused that he and E had opportunistic sexual intercourse at Port Rickaby in the annexe a few weeks after the birth of the baby in January 2003. I accept that E never borrowed the sleeping bag and there is no suggestion that the accused ever had it. There is therefore no possibility open on the evidence that the accused’s semen got onto the inside lining of the sleeping bag prior to J bringing it to the accused’s house on 12 April 2003.
“I HAD SEX”
I accept J’s evidence that the accused told her a number of times on Sunday 13 April that he had “had sex” with her the night before. It was put for the accused that there were inconsistencies in her evidence because she told the police on 8 May that this was said in the bedroom at about 8.00am, but in her statement of 13 June she referred to it as occurring later in the morning, just after she returned from having a shower at her parents’ home. I do not accept the criticism. On both occasions, as well as in evidence, she made it clear that he said this a number of times during the day. It does not necessarily follow that, because she referred to different occasions during each of those statements, that she meant that the one mentioned was the first time it occurred. But even if she was confused about when it was first said, the thrust of her evidence is clear. She had good reason to remember the comment. It was an extraordinary thing for him to say and she reacted with disbelief. What struck her also was that he appeared to be boasting; she thought he clearly enjoyed informing her of it and repeated it a number of times. J said in evidence that he said this in the presence of both E and S. E denied ever hearing the accused say such a thing, and S said he did not hear anything like that. It is quite possible that, contrary to J’s belief, S did not in fact hear it said. As far as E is concerned, it is possible that she did not hear it either, although for reasons I have given, even if she did hear it, I am not confident that she would admit to it.
There is further support for J. Saying that he “had sex” was an expression freely used by the accused in the course of giving his evidence (I shall return to that shortly) and her memory of the words he used is consistent with the way he expressed himself in court. I also accept that he told two other people that he had “had sex” with J on that night.
Ms LT has been a friend of E for about 10 years. On her day off work, Wednesday, she went regularly to E’s house. She remembered being there on a Wednesday in about April 2003 and a conversation when both E and the accused were present. She said (Tx125) that the accused told her that J had come over one night, that they were drinking alcohol, that J had had too much to drink and that she “had passed out and had thrown up.” They gave her a shower but could not get her clothes off so they put her in the bath and turned the taps on to clean her up. He told her that they then put J’s pyjamas on and put her to bed, and “then he said that he had had sex with her” (Tx125). To the best of her memory she thought he used the words “had sex”. She said “he seemed pretty proud of it …….. Like, he seemed happy that he had done it” (Tx126). She said that she told him she did not want to know any more.
When the accused was asked about this in cross examination, he remembered the occasion and agreed that LT’s account of the conversation was accurate, but with the sole exception that he had not said that he had had sex with J.
LT said there was another conversation on the next Wednesday about the events of that night. It was similar to the previous one, except that this time the accused told her that at some time during the night he “pulled back the sleeping bag and she was fingering herself”. But there was no mention about him having sex with her (Tx127-128). I shall refer to this version of his evidence later but for the present purposes it is enough to say that the accused agreed that this was an accurate account of that second discussion.
LT was a straightforward witness and I have no reason to doubt the truth of what she said or the accuracy of her memory. She had good reason to remember the accused telling her that he had “had sex” with J because she was embarrassed to hear about it and did not want him to go on any further. Even the accused agreed that she was right about both conversations except for the incriminating admission of having “had sex” with J.
The other person he told was J’s sister, H, who at that time was living in Adelaide but had gone back to the town for the weekend following the one in question. There was a family barbecue and at one stage H was sitting in the kitchen of the family home with the accused and E. She said the conversation started off with E telling her that J had drunk alcohol and had been sick, that she had had to put J in the bath to wash her and then to bed. H said that at that point the accused took over the conversation and said “that he had sex with [J] that night that [J] had stayed at their place” (Tx120). She was asked about the manner in which he said that and the evidence continued:
"AHe sort of was laughing about it and was very proud of the fact that he had had sex with [J].
QWhat did you say.
AAt first, I wasn’t sure whether I believed him because it was a bit of a shock to hear something like that.
QDid you say anything.
AI said ‘Are you joking?’ and he said ‘No’ and then I asked [E] about it and she said that it had – she wasn’t sure but [the accused] had told her that it had happened.”
She said that this conversation with E took place while the accused was still at the table with them.
The accused agreed that there was a conversation between himself, E and H in the kitchen at E’s parents’ home and that he told her about J “drinking, making a fool of herself, and chucking up everywhere” (Tx250) but he denied that he told her that he “had sex” with J.
In my opinion H was an open and honest witness. As was the case with the conversation with LT, the accused was prepared to accept all her evidence except the damning assertion by him that he had “had sex” with J. I accept that the accused told both LT and H that he had “had sex” with J, as they said in their evidence.
The Crown led some evidence about a conversation between the accused and another friend of E and J some time in 2003, while E and J were practising netball. I need not go into the details. It was led for the purpose of showing an acknowledgement by the accused that he thought J might be pregnant and that, in the circumstances, this evidence was admissible against him. I have no doubt that the witness did her best to recall that conversation, but the evidence about the conversation was ambiguous and there is a reasonable possibility of misunderstanding about what it was that the accused was intending to convey to her. Moreover, depending on when the conversation took place (and that is unclear) the rumours to which I have referred could have been abroad. That leaves room for the witness’s understanding of what was being spoken about to be contaminated. For these reasons I cannot be satisfied about the reliability of this evidence and I disregard it.
I am therefore satisfied that, as well as telling J, the accused told LT and H that he had “had sex” with J that night. He may have told E also, but I leave that aside. It was put that it was inherently unlikely to be true that the accused would say such things in front of E, and that therefore I could not accept the evidence of those who alleged that this had happened. I do not accept that submission. I do not know the dynamics of the relationship between the accused and E except to say, as I have said earlier, that, as best I could judge during the course of evidence and by watching the video of the interview between the accused and the police where E was present, there appeared to be an element of subordination by her to him.
What then does the accused mean when he says he “had sex” with J? In my opinion there can be no doubt that when he uses that phrase it is to describe penile vaginal sexual intercourse. I refer to some examples.
In evidence in chief, when speaking about Port Rickaby, he said (Tx199): “We had sex one day there at Port Rickaby.” He then described that this happened while they were laying down on the sleeping bag, and it was in the context of explaining the semen stain on the bag. He was clearly talking about sexual intercourse.
In cross examination, again speaking about Port Rickaby, there was the following exchange (Tx220):
"QAnd in January 2003, just after [the baby] had been born and [E] had had a caesarean, she was quite happy to be having sex with you on that occasion.
AWe didn’t have sex straight away after she had the caesarean, but it was about three or four weeks after she had [the baby], so it was in, yes, in January when we had our first sexual contact.
QHad you had sexual intercourse with [E] on any occasion before visiting with her family at Port Rickaby after [the baby] had been born, or was this the first occasion.
AYes, we did have sex that day, but we had another sex when we got home.”
This was still in the context of the semen deposit on the sleeping bag and the there is no doubt that accused was referring to penile vaginal sexual intercourse, including ejaculation.
I have already referred to the passages of his evidence where he described how he “had sex” with E on the night in question after they had watched the movie, how they were trying to “have more kids”and his reference to “the semen, most of it doesn’t stay up” to explain how the knickers became stained (Tx228). Again it is clear that he was talking about penile vaginal sexual intercourse including ejaculation. He consistently uses the expression to describe that activity and, in my opinion, there is no room for doubt that this is what he intended to convey to J, LT and H when he said he had “had sex” with J, and there is every reason to accept that he was being frank when he made these statements against interest.
SEXUAL INTERCOURSE
The only time that sperm from the accused could have contaminated either J’s knickers or her sleeping bag was on the night of 12-13 April 2003. Its presence on both and the relevant semen stain on the bag confirms that there was sexual contact between the accused and J that night which included him ejaculating. That contact probably, although not necessarily, took place while she was in the sleeping bag. The sperm found on the knickers may have been deposited by him either inside or outside her vagina, but his statements to J and to the other two witnesses of what he did, i.e., “had sex” with J, are descriptions of there having been penile penetration of her vagina. The combined effect of the evidence is such that there is no inference reasonably open other than that this occurred. Therefore, the prosecution has proved beyond reasonable doubt that the accused had penile vaginal sexual intercourse with J that night.
In reaching that conclusion I have not relied on the evidence given by J about the feeling of liquid coming from inside her vagina after she put the knickers on and stood up. Given that by his description of “having sex” the accused means to include ejaculation, it may well be that this feeling of a wet sticky liquid coming from inside her vagina after she stood up means that this was semen leaking from her vagina and that it was the source of the sperm fractions that were found in the knickers. That is possible, but it is not the only possibility. It does not necessarily follow that the sperm samples were contained in that discharge. It is also possible that, coincidental as it may be, the discharge may not have been a leaking of the accused’s semen. However, in the circumstances it is unnecessary to pursue that further.
CONSENT/AWARENESS
In my opinion the evidence leaves no room for the possibility that J consented to sexual intercourse and, indeed, there is no suggestion that she did so. The next question therefore is whether it has been shown that at the time he had intercourse with her, he either knew that she was not consenting or, realising that she might not be consenting, went ahead and had sexual intercourse irrespective of whether she was consenting or not. In my judgment there is ample evidence to show that he knew when he sexually penetrated her that she was not consenting.
J was very young, not yet 17, and the accused well knew that. During the course of the night she had become grossly intoxicated to the point of losing consciousness a number of times, vomiting and, even on his description, making a fool of herself. The accused’s brother T gave evidence about phone calls during which J was said to have been making lewd suggestions. It is not clear to me who it was that initiated each of those calls. It is possible that some were made by the accused and that J also spoke to T during them. There were some unsatisfactory aspects to T’s evidence and I am far from satisfied that I can accept it at face value. However, it is unnecessary to go into the details. Even if J did speak inappropriately, that would be quite consistent with her being drunk and immature.
It is unlikely that the accused had sexual intercourse with J before E had gone to sleep. Whether the accused and E had sexual intercourse themselves that night is problematic. He told the police that after the movie they both went to bed and went to sleep, but when the police officer reminded them that E had said on an earlier occasion that she had gone to bed but that the accused had stayed up for a while, the accused went on to say that J called out and woke him up. He said that she asked him to come into the lounge, and he did, but that he asked E to go with him “in case [J] starts accusing me or her mother starts accusing me.” Despite giving all this puzzling detail to the police, the first time the accused made any mention of E and himself having had sexual intercourse that night was when he volunteered it during cross examination. However, I need not make a finding about that.
All available evidence indicates that until E went to bed, J was obviously grossly affected by alcohol – vomiting, passing out, talking drunkenly on the phone, passing out again, etc. and there is no evidence to indicate that there was any observable change in her condition after that. In fact, her inability next day to remember what had occurred between passing out on the phone and waking up at about 6.00am tends to confirm that there was no appreciable improvement and that she had to sleep it off.
That the accused knew at the time he had sexual intercourse with her that she was not aware of what was happening is confirmed by his repeatedly telling her the next day that he had “had sex” with her that night. There can be no doubt from her evidence, which I accept, about the way he said this that he was intending to tell her something that he believed she did not know. I accept also that her reaction upon being told this was, initially, one of utter disbelief, even derision. The mere fact that he continued to tell her what he had done is further confirmation that in his mind he was telling her about something of which he knew that she was unaware.
There is another indication that he knew she was not aware of happenings during the night. As I have mentioned earlier J told the police on 9 May 2003 (and I accept the truth of it) that on Sunday 13 April the accused said to her on one occasion: “I woke up in the middle of the night and your pants were off” and that he appeared to be bragging. The clear inference to be drawn from this is that he was telling her something he thought she did not know.

An unusual piece of evidence gives another valuable insight into the mind of the accused. During his interview with the police on 19 June 2003 he mentioned the occasion, to which I have already referred, when he said that he and E got out of bed in the early hours, he thought at about 4.30am. E went to the toilet and he attended to the baby. After that they got some Coke, he said, and “here’s [J] with her um jamas and her knickers on the side of the sleeping bag and she’s um fingering herself, playing with herself”. E confirmed that she also saw this, and the accused added “Yeah, we actually told her to cut it out, don’t –, not in our presence.” He returned to this topic again later in the interview when he said: “And, and, and we both, [E] and I both told her um ‘what are you doing’ and, there is [J] fingering herself and, and she said ‘I don’t know how I took my um jarmies off’ because she said she couldn’t remember nothing. And I said, and [E] and I said ‘Don’t do that in our presence, especially in our house’ and -”.
I have grave doubts about the truth of this story about E and the accused getting up at 4.00 or 4.30am and seeing the knickers and pyjama pants next to the sleeping bag while J is said to be masturbating. But putting that aside, the allegation that J made the unprompted and bizarre remark about not knowing how her pyjama pants came to be off was obviously fabricated. Significantly, however, in volunteering the comment he betrayed a consciousness on his part that J did not know how her pyjama pants or her knickers came to be off. In other words, he knew that she was not aware of what was happening to her at the time they were removed, and with the obvious corollary that their removal was part of the sexual molestation.
In my judgment it has been clearly demonstrated that the accused knew at the time he had sexual intercourse with her that J was not aware of what was happening. It follows that he must have known that she was not consenting to it.
I am satisfied that the Crown has proved beyond reasonable doubt that, at the time the accused had sexual intercourse with J, she was not consenting and that he knew that this was so. He is therefore guilty of rape. As count 2 is in the alternative it is unnecessary to return a verdict on that count.
CONCLUSION
For these reasons:
On count 1, rape, I find the accused guilty.