R v AKS - [2021] SADC 14

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v AKS
Criminal Trial by Judge Alone
[2021] SADC 14
Reasons for the Verdict of his Honour Judge Muscat
19 February 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
The defendant is charged with the offence of rape.
Verdict: Not Guilty
Evidence Act 1929 (SA) s 34CB, referred to.
Melbourne v R (1999) 198 CLR 1; R v Bednikov (1997) 95 A Crim R 200; R v Baker (2000) 78 SASR 103; R v PS (2016) 261 A Crim R 329; R v Trimboli (1979) 21 SASR 577, considered.

R v AKS
[2021] SADC 14

Introduction

The defendant is charged with the rape of A, who is the daughter of his former partner. He has pleaded not guilty and has elected to be tried by judge alone.
The charge contains the following particulars:
AKS, between the 20th day of March 2014 and the 22nd day of March 2016 at Aldinga Beach, engaged in sexual intercourse with A by inserting his penis into her vagina, without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was not so consenting.
The defendant and A’s mother, L, were involved in a relationship between 2009 and 2013 during which L fell pregnant and gave birth to a child, T, who was born on 22 February 2011.
A is L’s child from a previous relationship and she was born on 21 March 2002.
The defendant has a child, J-L, from a previous relationship. J-L was born on 23 July 2003 and is 16 months younger than A.
The defendant had regular custody of J-L. She would spend every weekend with the defendant from when she was aged around three or four years and that also later included the school holidays.
When the defendant and L formed a relationship their children A and J-L became good friends and they remained good friends after the defendant and L finally separated during 2013.
A was diagnosed as suffering from Attention Deficit Hyperactivity Disorder (ADHD) and Asperger’s Syndrome or Autism, although neither disorder impacted upon A’s level of intellectual functioning. L said that A’s Asperger’s Syndrome caused her to interpret matters literally and that A was not someone who would display emotions.
I observed A giving evidence over three days. She engaged well with good eye contact and I did not consider that she was unable to adequately respond to questioning, indeed, I considered she was a relatively intelligent young woman.
A was prescribed medication to control the symptoms of ADHD, which included Ritalin and Concerta brand medication which she took in the morning to assist her focus and maintain attention or concentration during the day and Catapres brand medication at night to assist her to sleep.
A was taking between two to three 150 mg tablets of Catapres medication every night. The effect of this medication was to bring about drowsiness, usually within around 30 minutes, leading to sleep.
A said that after taking Catapres she would be in a deep sleep and it was not easy to wake up from that sleep, although she did add that noise or movement would cause her to wake.
A spent weekends and most school holidays staying at the defendant’s house with J-L. Their friendship continued after their respective parents separated when A was aged around 13 years. Despite the separation, A continued to spend most weekends with J-L at the defendant’s house. The defendant would usually collect A from her mother’s house on a Friday afternoon and return her home on a Sunday afternoon.
A said she enjoyed spending time at the defendant’s house, as J-L was her only friend, at least until A commenced high school in 2015, after which her visits to the defendant’s house were not as frequent, as, by then, she had established other friendships in high school.
A and J-L slept together in a queen-sized bed in the spare bedroom at the defendant’s house.
A agreed that she viewed the defendant as a father-figure and that he treated her the same as he treated his own daughter, J-L. A also agreed that the defendant included her in the same activities as J-L. The defendant confirmed that he enjoyed a close relationship with A and treated her like a daughter.
When A would stay at the defendant’s house her mother would pack her medication in a pill box. The defendant ensured A took her medication, both in the morning and evening.
The evidence establishes that the defendant regularly played games on the computer, which was situated in the corner of the lounge room. His daughter,

J-L, was also heavily involved in playing computer games, sometimes staying up later than her bedtime to do so.
A claimed that there were a number of occasions when she was asleep in bed when she awoke to find the defendant asleep in bed with her. She was uncertain as to the number of times this happened other than it was more than four times and not as many as 10 times.
A said the defendant was clothed on these occasions and the bedroom door was always closed with the room in darkness.
A said that when she awoke to find the defendant asleep in bed with her she would ‘get annoyed’[1] and tell him to ‘get out’.[2] She said the defendant never responded because he was drunk. A said the defendant would then leave the bedroom and go into his own bedroom. A would then go into the lounge room where J-L was playing games on the computer and sit next to her. A said that she never told J-L about waking up to find the defendant asleep in her bed and also said that J-L never mentioned hearing A shouting at the defendant to leave the bedroom, nor did J-L ever ask A why she was up. Furthermore, A said she never spoke with the defendant about him being in bed with her.
[1] MFI P1A T 35.
[2] Ibid.
In adducing this evidence, the prosecution was not alleging that the defendant did anything sexually improper toward A on any of these occasions, nor that he had a sexual interest in A. On the prosecution case, the only relevance of this evidence was to demonstrate that being in bed with A was something he had done before when J-L was nearby in the lounge room and in that way, it would not come as any great surprise when A said that she awoke to find him in her bed on the night the subject of the charge. I could not reason from this evidence, if I were to accept it, that because the defendant had, on other occasions, been in bed with A, that it was more likely he committed the offence.
Circumstances of the alleged rape
A recalled one occasion when she thought she was aged younger than 12 years and attending the Aldinga Beach Primary School during the summer months being asleep in the queen-sized bed in J-L’s bedroom at the defendant’s house.
A said she was wearing a singlet underneath a t-shirt. She said she was wearing pyjama shorts over a pair of bike shorts and knickers underneath the bike shorts.
A said on this occasion she woke up lying face down or horizontal and on top of the defendant. A said the bedroom door was closed and the room in darkness, with the only light emanating from underneath the door from the area of the lounge room where J-L was playing games on the computer.
A said her pyjama shorts and bike shorts were pulled down to just below her knees. She said that her legs were positioned on either side of the defendant’s legs with the defendant lying on his back underneath her.
A said the defendant was touching her breasts and that his penis was inside her vagina, which felt both uncomfortable and painful.
A said her knickers were not pulled down with her pyjama shorts and bike shorts but rather, pulled to the side which allowed the defendant to insert his penis into her vagina.
A said when she awoke and realised what was happening, she became ‘really annoyed and mad’.[3] She said she got off the defendant and began yelling at him to get out. She said she was also hitting him.
[3] MFI P1A T 42.
A said the defendant told her to be quiet because the neighbours would hear. She said the defendant then left the bedroom and went into his bedroom.
A said after the defendant left the bedroom she went into the lounge room where J-L was ‘on the computer’…‘talking to her friends and playing her games’.[4] A claimed J-L had a headset on and was speaking to her friends via the headset.
[4] MFI P1A T 44.
A said she pulled up a chair and sat next to J-L at the computer desk ‘for a bit’ before A went to the couch.[5]
[5] Ibid.
A said she told J-L ‘if her dad tells her [J-L] to move away from [A] ... not to move.’[6] A told J-L to stay with her.[7] A said that J-L asked her why and A said she replied by ‘just tell[ing] [J-L] to do it’.[8]
[6]     Ibid.
[7]     Ibid.
[8]     Ibid.
A said that she did not disclose to J-L what the defendant had done ‘because [she] didn’t want to ruin [their] friendship or the relationship [J-L] had with her dad’[9] and further, because A was ‘scared that [J-L] wouldn’t believe [her]’.[10]
[9] T 45.
[10] MF1 P1A T 45.
A said that she later slept on the couch for the rest of the night.
The evidence given by A of telling J-L not to move away from her if the defendant asked J-L to, does not provide independent support for A’s evidence of being raped. This evidence is limited to an assessment of A’s credibility in the sense that it is conduct that may indicate A behaved or responded in a way which was consistent with having just woken up to the defendant having sexual intercourse with her.
The following morning A said the defendant told her not to tell anyone what had happened.
Following this alleged incident, A continued to regularly spend weekends and school holidays at the defendant’s house. A said the defendant never sexually assaulted her again nor did she ever wake to find him asleep in her bed again.
A’s visits to the defendant’s house diminished once A commenced high school in 2015. Although A remained good friends with J-L, she began forming new friendships in high school.
The defendant gave evidence and denied that he had ever acted or behaved inappropriately towards A. He denied that he had ever entered the spare bedroom and fallen asleep in bed with A or that he raped her as she alleged.
Whilst J-L was not called by either the prosecution or the defendant to give evidence, no adverse inference is to be drawn against either party for not doing so. The court is left to decide the verdict only on the evidence before it and is not to engage in speculating what J-L might have said if she had given evidence.
Issue in contention
The decisive issue in contention in the trial, insofar as the elements of the offence of rape is concerned, was whether the prosecution proved the physical act of penile vaginal sexual intercourse alleged by A beyond reasonable doubt.
Having considered all the evidence, I have a reasonable doubt that the act of sexual intercourse occurred as alleged by A.
There were a number of important inconsistencies in A’s evidence, as well as aspects of A’s evidence which I found to be inherently implausible, that impacted upon A’s reliability and truthfulness.
Unlike A’s evidence, there were no such deficiencies in the defendant’s evidence. He gave his evidence in a very straightforward and genuine manner. He was not an evasive witness and made appropriate concessions. His evidence was not undermined in any way during cross-examination. I found him to be an honest and credible witness.
Analysis of A’s evidence
There were a number of issues raised on A's evidence that have affected my assessment of her as a reliable and credible witness, some of which I will now outline.
When A was interviewed by Detective Lisle on 17 September 2016, she said that the incident the subject of the charge occurred ‘basically a year ago’, meaning when A would have been aged around 14-and-a-half years.
A gave evidence at a previous trial of this charge in 2019, in which she said that the incident occurred when she was aged 13 or 14 years. During A’s

re-examination at that earlier trial, she said that the incident did not occur when she was aged 14 years and agreed she would have been aged 13 or 12 years at the time.
At this trial, A said she was 'probably younger than 12 years' when the incident occurred. She also confirmed the incident occurred during summer and while she was attending the Aldinga Beach Primary School.
A’s primary school records were agreed in evidence,[11] revealing that A attended Aldinga Beach Primary School between 28 May 2009 and 3 February 2012 when in years 2 to 5; the Myponga Primary School between 6 February 2012 and 15 March 2013 when in years 5 to 6; the Aldinga Beach Primary School again between 18 March 2013 and 5 August 2014 when in years 6 to 7 and the Christie Downs Primary School between 6 August 2014 and 12 December 2014 in year 7.
[11] Exhibit P3.
A agreed in evidence that she was in year 5 when the incident occurred during the summer.[12] A confirmed that the incident occurred before she commenced at the Christie Downs Primary School. She was unable to say whether the 'summer months' were in February/March or December of the school year.
[12] T 48.
According to the school records, A was attending the Aldinga Primary School in year 5 during summer in 2012 when she would have been aged 9 years. A was also in year 5 at Myponga Primary School during the summer months in 2012 when she was aged between 9 and 10 years.[13]
[13] A’s dob is 21.03.2002.
If A’s evidence at this trial is to be accepted, namely that she was in year 5 at Aldinga Beach Primary School, then she was aged 9 years when she alleged the defendant sexually abused her. If she is mistaken about the school she was attending, but correct about the year level she was in, then A was aged between 9 and 10 years, depending on whether she was sexually abused by the defendant in February or December, being the summer months of that school year.
When A was asked to explain why during her interview with Detective Lisle on 17 September 2016 she said that the incident had occurred ‘basically a year ago’, she responded ‘I don’t know’.[14]
[14] T 49.
An assessment of A's evidence reveals that there is a significant variance between the ages that she asserted she was sexually abused by the defendant, particularly given that A is only alleging a single occasion of such abuse. It appears A could have been as young as 9 years or as old as 14-and-a-half years when she alleges the defendant sexually abused her on that single occasion.
A’s age is an important consideration in the trial as J-L is 16 months younger than A. If A was sexually abused by the defendant as she alleged when she was aged 9 years and attending the Aldinga Beach Primary School in January/February 2012 at the beginning of year 5, then J-L would have been aged 8-and-a-half years, making it extremely unlikely that at such a young age J-L would have been playing games on the computer so late at night as A has asserted.
I have found the evidence as to A’s age unsatisfactory and this impacts upon her reliability and, to an extent, her credibility.
I have already stated that A alleged that she was sexually abused by the defendant on only one occasion. A was quite clear about this in her evidence.
On 3 September 2016, A attended with her mother at the Christies Beach Police Station. Senior Constable Sowter was working at the front counter that evening when A and her mother arrived at the station.
SC Sowter said that she took A and her mother into an interview room where she spoke with A and took down details from A to produce a police incident report for investigation by the CIB.
SC Sowter said she interviewed A for about 15 to 20 minutes and obtained a narrative from A of the allegations she was reporting. SC Sowter was preparing the report directly onto the computer. Based on what A told her, SC Sowter recorded that A had stated: ‘On about four or five occasions the suspect has forced the victim to have intercourse with him’.[15]
[15] T 145.
SC Sowter said that she would have asked A how often she was alleging the defendant had forced A to have sexual intercourse with him. SC Sowter agreed that there was no doubt that A told her that the defendant forced her to have sexual intercourse with him four or five times.
Whilst SC Sowter said A appeared upset and tired and had her head down on the desk a few times during the course of recording A's allegations, she nevertheless answered all questions that SC Sowter was asking her.
In her evidence, A denied that she told SC Sowter that the defendant had forced her to have sexual intercourse with her four or five times.
I do not accept the prosecution submission that SC Sowter must have misinterpreted what A had told her about the number of occasions the defendant had forced her to have sexual intercourse with him and that instead, A was telling SC Sowter about the number of occasions she had woken up to find the defendant asleep in bed with her.
I do not accept that SC Sowter, knowing of the importance and significance of the report she was taking from A for investigation, would have made such a mistake. I am satisfied that SC Sowter correctly recorded what A was telling her.
While there were other inconsistencies in A’s evidence, this is quite a significant inconsistency and adversely impacts upon A’s reliability and credibility.
When A slept at the defendant’s house, her routine after taking her Catapres medication in the evening, would be to lie in bed with the television on, so she could fall asleep watching a movie. She said that she would never sleep with the bedroom door closed.
A agreed that on more than four occasions[16] she woke up to the defendant asleep in bed with her. She said the bedroom door was closed and the room in darkness.[17] A said the defendant was sleeping on the ‘wall side’ of the bed.[18] She claimed on each occasion she would get angry and shout at the defendant to ‘get out’.[19] She further claimed that on each occasion the defendant said nothing, left the bedroom and then entered his own bedroom.
[16] T 50.
[17] Presumably, someone must have switched the television off.
[18] T 38.
[19] T 31.
A also said that on each of these occasions, rather than staying in bed, she left the bedroom and went into the lounge room where she claimed J-L was playing games on the computer. A said that she would sit alongside J-L at the computer desk until she became tired enough to fall back to sleep or she would fight her tiredness to stay up with J-L for ‘a few hours’.[20]
[20] T 37.
Remarkably, A never told J-L that the defendant had been in bed with her nor did J-L ever ask A why she was up. This is despite A claiming that she was angry and had shouted at the defendant to get out of the bedroom and that the distance between the bed and J-L’s position at the computer was only ‘maybe 10 steps’.[21]
[21] T 26.
I find it unlikely that A would not have mentioned anything to J-L if the defendant had in fact been sleeping in the bed with her and certainly not if it had occurred as often as A claimed. A’s explanation for not saying anything to J-L was that she did not want it to affect her relationship with J-L, thinking that J-L ‘may or may not believe’ her.[22]
[22] T 42.
I also consider it likely that if A was shouting at the defendant to get out of the bedroom that J-L would have heard A shouting at her father and yet, according to A, J-L never enquired with her as to why she was up.
It also seems implausible that J-L was on the computer on each and every occasion A claimed she woke to find the defendant in bed with her. Furthermore, it seems inherently unlikely that the defendant would decide to sleep in A’s bed and close the door when, at some stage, his own daughter would have gone to bed and discovered him there with A.

It is also difficult to accept that the defendant never said anything to A when she was shouting at him to get out of the bed on any of the occasions. According to A, he did not explain what he was doing there, nor apologise, nor ask her to not say anything to his daughter, J-L, about it. Furthermore, A said she never spoke with the defendant in the morning about her waking up to find him in bed with her.
I did not find A’s evidence about this to be credible and as the defendant, in his evidence, denied sleeping in the bed with A, I have a reasonable doubt that he ever did.
A said in evidence that after she woke to the defendant having sexual intercourse with her, she left the bedroom and went into the lounge room where she fell asleep on the couch and remained there until she awoke in the morning. However, at the previous trial, A said she had fallen asleep on the chair next to

J-L after about 20 minutes and that she and J-L then went to sleep in the bed in their bedroom. When asked to explain this inconsistency, A’s response was: ‘I’m not sure’.[23]
[23] T 80.
A’s evidence was that after taking her Catapres medication she would usually fall asleep within about 30 minutes. A said that she would be awakened by movement or sound. She also remembered occasions when having fallen asleep on the couch she awoke when the defendant would carry her from the couch into the bedroom.
Despite waking on these occasions, A said she was not awakened by the defendant pulling her pyjama shorts and bike shorts down to below her knees, positioning her body on top of his and moving her knickers to the side. A claimed in evidence that she only awoke when she felt the defendant’s penis inside her vagina and the movement of the bed.
After realising what the defendant was doing to her, A said she began shouting at him and possibly swearing, telling him to get out of the bedroom at least a few times. A agreed that she was shouting loud enough for the next door neighbours to hear.[24] She explained that the neighbour’s front door was next to the bedroom window. She accepted that she was shouting loud enough for J-L to have heard from her position at the computer desk if J-L ‘didn’t have her headset on’.[25]
[24] T 66-67.
[25] T 67.
I find it unlikely that in the quiet of the night, if A was shouting at the defendant as loudly as she said she was, that J-L, who was about 10 steps away on the computer, would not have heard the commotion, even if she was wearing a headset[26] and talking with her friends as A asserted.
[26] The defendant gave evidence that the headset covered only one ear.
When A was interviewed by Detective Lisle on 17 September 2016, she said that after she got off the defendant she started ‘hitting him and punching him and he had a lot of bruises on his arms’. In her evidence, A said that she hit the defendant three times and that she observed bruises on his arm in the morning. This feature of A's evidence assumes importance when considering the forensic disadvantage the defendant faces in defending himself, which I will address later.
A significant feature of the evidence which has affected my assessment of A’s credibility are the communications she instigated with the defendant, which is totally inconsistent with her attitude towards him after she said she awoke to him having sexual intercourse with her.
In her evidence, A confirmed that she was ‘shocked’ by the defendant’s behaviour; that she did not want to be left alone with him at any time; that she feared he might sexually abuse her again while she was asleep; that she was frightened to be in his company alone; that she wanted to avoid him at all times; and that she formed the opinion he was a paedophile.[27]
[27] T 85-86.
Despite this, A said that she continued to visit the defendant’s house because she wanted to see J-L but decided she would not have anything to do with the defendant.
A’s evidence from the previous trial was also read to her:[28]
[28] T 81-82 of the previous trial.
Q.You were telling us that about the following morning that he told you basically not to tell anybody and no other conversation was entered into that day, is that right.
A.    Yep.
Q.    There's never been a conversation between you and him since that day.
A.    Yep.
Q.    Whenever this incident occurred, right.
A.    Yep.
Q.    You were very upset about what had happened, correct.
A.    Yep.
Q.    You took the view that he was a paedophile.
A.    Yeah.
Q.    And that you were horrified by what he had done to you.
A.    Yeah.
Q.    You took the view that you would avoid him at all times.
A.    Yep.
Q.    And would avoid being in his company.
A.    Yep.
Q.But then I think you said after a couple of weeks you decided to go back there but that was to see J only.
A.    Yep.
Q.    And not to have any interaction with him.
A.    Yep.
Q.    Because you'd never forgive him for what he did.
A.    Yeah.
Q.So whenever this took place up until the time that you last saw him you were attending at his place but only for the purpose of having the company of Jamie, your best friend.
A.    Yep.
Q.    You would have nothing to do with Adam, is that right.
A.    Yeah.
Q.    You wouldn't talk to him, is that right.
A.    No.
Q.    Is that right.
A.    Yeah, that's right.
Q.    He never spoke to you.
A.    Yep.
Q.So there was a wall of silence between you and him, would that be a correct description.
A.    Yeah.
Q.    How is it that you would get to his place after this incident.
A.    My mother would drop me off.
Q.    Did he ever collect you.
A.    Sometimes.
Q.    What did you think about that, him coming along to collect you.
A.    I'm not - I don't know.
Q.    I take that if he did collect you, you wouldn't talk to him.
A.    Yeah.
Q.    And when he delivered you back to your mum's place there'd be no conversation.
A.    Yep.
Q.    Because I take it you would have hated being in his company.
A.    Yeah.
Q.    Or particularly being in the same car as him.
A.    Yeah.
Q.    And you've always held that position, have you.
A.    Yeah.
Q.'That I just hate being anywhere near him and I don't want to have anything to do with him'.
A.    Yeah.
A series of Facebook messages and text messages from August and September 2015 and April, June and July 2016 were then produced to A in which she is instigating communication with the defendant.[29] The communications involve:
iA asking the defendant if she could sleep at his house, ‘for the rest of the week or two weeks’, following an argument with her mother. A asked the defendant to pick her up from school so that she could stay at his house.[30]
iiA asking the defendant if J-L and J-L’s sister, B, were at his house, asking him what he was doing, and asking if she could go fishing with him.[31]
iiiA asking the defendant if she could do some jobs for him that weekend for money as she wanted to buy some jeans.[32]
ivA asking whether she could sleep at the defendant’s house.[33]
[29] Exhibit D1.
[30] Messages dated 26 August 2015.
[31] Messages dated 29 September 2015.
[32] Messages dated 11 April 2016.
[33] Messages dated 12 June 2016 and 29 July 2016.
The messages totally contradict her evidence about her views of the defendant at the time. A was extensively cross-examined about these communications. I found A’s explanations for her communication with the defendant unsatisfactory and unconvincing.
For example, in relation to the first messages dated 26 August 2015 when A wanted to stay at the defendant's house for a week or two, she claimed the defendant has ‘always been that father figure … even though he did what he did’ and she ‘still had that connection with him’.[34] A also added that she wanted to stay at the defendant's house because that was the only place she could get some rest from her own family, although she admitted that she could have stayed at her sister, T’s house, or with her friends S or JJ. Indeed, A accepted that she likely stayed at the defendant’s house at that time.
[34] T 89.
In light of the clear evidence A gave at this and the previous trial about her feelings towards the defendant and the ‘wall of silence’ that existed between them following her waking up to him having sexual intercourse with her, I found her explanations for communicating with the defendant, which she had instigated, disingenuous.
Indeed, more often than not, when pressed for an explanation for her communication with the defendant A responded, ‘I don’t know’ or ‘I’m not sure’.
I found that the evidence relating to the Facebook and text communications, and A’s responses, have strongly undermined her credibility.
There were other aspects of A’s evidence concerning the charged act that were either inconsistent or not convincing but which I find unnecessary to detail as I have focused on the major inconsistencies in, or implausibility of, A’s evidence.
Forensic disadvantage faced by the defendant
I am satisfied that the defendant has suffered a significant forensic disadvantage in defending the case brought against him, as a consequence of the delay in the prosecution.
First, there is great uncertainty over when the alleged act of sexual intercourse occurred, given the variance in A’s evidence as to her age as I have previously outlined. This makes it extremely difficult for the defendant's counsel to fully test A's evidence as it otherwise might have been, or to test A's evidence against independent sources which may have thrown doubt on her evidence or pointing to circumstances which may have contradicted A.
Secondly, had A made a prompt report of her allegations, then both she and the defendant could have been medically examined and samples taken from each of them for forensic analysis, to determine if there was any scientific evidence, such as DNA, which might have cast doubt on A’s allegations. Furthermore, it could have been easily determined whether the defendant did suffer bruising as a result of A hitting him on the arms as she said and, if not, then that could have contradicted her evidence and undermined her credibility.
I have taken these significant disadvantages faced by the defendant into account by subjecting the evidence to the most careful scrutiny.[35]
[35] See s 34CB Evidence Act 1929.
Good character of the defendant
The defendant gave evidence that he has no criminal convictions. Whilst no evidence was called by the defendant as to the general reputation of his good character, a discretion exists as to the directions to be given as to the use of such evidence.[36] The prosecution has submitted that it is difficult to evaluate the probative significance of this evidence in order to give it any meaningful use. There is force in these submissions and which is supported by various legal authorities. Nevertheless, I consider that the defendant’s lack of criminal convictions is some evidence to be considered in assessing the likelihood of him committing the offence.[37]
[36] Melbourne v R (1999) 198 CLR 1, R v Bednikov (1997) 95 A Crim R 200; R v Baker (2000) 78 SASR 103; R v PS (2016) 261 A Crim R 329.
[37] R v Trimboli (1979) 21 SASR 577; R v Baker (2000) 78 SASR 103.
Verdict
For the reasons I have already referred to, I have found A’s evidence to contain a number of deficiencies which have adversely impacted upon her reliability and credibility. On the other hand, I was impressed with the defendant’s evidence and found him to be an honest witness.
It is for all of these reasons, when considering the whole of the evidence, that I have a reasonable doubt whether the act of sexual intercourse as alleged by A occurred and why, therefore, the defendant must be found not guilty.
I find the defendant not guilty.