R v AP

[2022] SADC 136

District Court of South Australia

(Criminal)

R v AP

Criminal Trial by Judge Alone

[2022] SADC 136

Reasons for the Verdicts of her Honour Judge Fuller 

18 November 2022

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

Accused charged with three counts of rape - each offence alleged to involve digital penetration. Complainant and accused known to each other - alleged offences occurred on a holiday weekend with four others including the accused's wife. Complainant heavily intoxicated on first night of holiday. Count 1 alleged to have occurred in the loungeroom whilst complainant lying on floor after having vomited. MP alleged to be present in the loungeroom when offending commenced - MP remonstrated with the accused when she saw accused and complainant with no pants on and accused kneeling astride complainant. Complainant assisted to bed and slept in a double bed with MP. Accused alleged to have come into bedroom twice and digitally penetrated complainant on each occasion. Complainant woke MP each time but accused lay down next to bed and MP did not see him. Accused entered room a third time and complainant turned on light. Accused pretended he was there to frighten the complainant and MP. Accused entered bedroom a fourth time and was told to leave by MP.

Initial complaint to MP the next day. Accused apologised to complainant in front of others. Complainant examined at Yarrow Place and abrasions consistent with penetration of vagina by finger or other object noted. Evidence led pursuant to s 34L Evidence Act 1929 of complainant's sexual activities with her partner prior to and after alleged offending.

Held: Complainant's evidence on crucial topics conflicted with evidence of prosecution witnesses. MP gave conflicting account of events in loungeroom and denied initial complaint. MP's evidence on matters conflicting with complainant's account unable to be rejected. Evidence of other witnesses, AB and PG, preferred over that of the complainant. Inherent unlikelihood of account of complainant. Effect of intoxication upon reliability of recall. Proved prior inconsistent statements to police and doctor. Charges not proved beyond reasonable doubt.

Verdicts: Not guilty

Criminal Law Consolidation Act 1935 (SA) ss 46(2), 47 and 48(1); Evidence Act 1929 (SA) ss 13(7), 34L(2)(a) and 34L(2)(b); Juries Act 1927 (SA) s 7, referred to.

R v Macfie (No 2) (2004) 11 VR 215; [2004] VSCA 209; Goncalves v The Queen (1997) 99 A Crim R 193; R v Andrews [2010] SASCFC 5; R v Smith; R v Livingstone-Wright & Ors [2019] EWCA Crim 1151, applied.

R v Rahmanian [2010] SASC 137; R v Blayney (2003) 87 SASR 354; R v G [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v Western Australia (2008) 232 CLR 438; Azzopardi v The Queen (2001) 205 CLR 50; R v Weetra (2010) 108 SASR 232; R v Sparks (2014) 121 SASR 132; R v Ciantar (2006) 16 VR 26; Butler v The Queen [2011] VSCA 417; Graham v Police (2001) 122 A Crim R 152; [2001] SASC 93, considered.

R v AP
[2022] SADC 136

1. The accused is charged on an Information dated 24 September 2021 with three counts of rape:

   First Count

   Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   [AP] on the 10^th day of July 2020 at Normanville, engaged in sexual intercourse with [SS] by inserting a finger into her vagina without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was not so consenting.

   Second Count

   Rape. (Ibid).

   Particulars of Offence

   [AP] on the 10^th day of July 2020 at Normanville, engaged in sexual intercourse with [SS] by inserting a finger into her vagina without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was not so consenting.

   Third Count

   Rape. (Ibid).

   Particulars of Offence

   [AP] on the 10^th day of July 2020 at Normanville, engaged in sexual intercourse with [SS] by inserting a finger 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 plea

2. The accused pleaded not guilty and at his election I heard the trial without a jury. I now publish my reasons for the verdicts I am about to deliver.

   Overview of the prosecution case

3. The accused and the complainant, SS, were known to each other. SS immigrated from Nepal in 2010. She is the mother of one daughter and had separated from her husband before the alleged offences occurred. On 9 July 2020 she stayed with a group of friends from the Nepalese community at a rented beach house in Normanville. The accused was part of this group, together with his wife, PP. Also present were MP, her daughter, AB, her husband, PG and their infant daughter.

4. All three offences are alleged to have occurred on the first night that the group stayed at the Normanville beach house. The complainant consumed enough alcohol to cause her to feel unwell and vomit in the upstairs living area in front of the others. When she was lying on the floor of the living room, the accused moved closer to her and started whispering in her ear. He then moved her pants down and inserted his finger into her vagina. At this point, MP entered the room and remonstrated with the accused and then assisted the complainant to her bedroom. MP told the complainant that she should not have consumed so much alcohol and that she would have been a ‘goner’ if MP had not been there.

5. The complainant and MP slept together in a queen-sized bed. At some point after the complainant and MP got into the bed, the accused came into the room, started kissing the complainant and whispering in her ear. He grabbed her breasts and reached into her pants and inserted his finger into her vagina. The complainant woke up MP by tapping her and told her the accused was back. The accused hid next to the bed where MP could not see him.

6. At some later point the accused returned to the room and whispered in the complainant’s ear and touched her breasts and inserted his finger into her vagina. The complainant again tapped MP to wake her up, but the accused hid, and MP did not see him. The complainant then swapped sides with MP and tucked a blanket around her body to stop the accused touching her.

7. The accused returned a third time but on this occasion the complainant woke up MP and turned on a light. The accused pretended he was getting some water and was told by MP that this was not the kitchen and he left.

8. The next morning the complainant told MP that the accused had put his hand down her pants in the living room and twice in the bedroom and that he had kissed her and touched her breasts. Later the same morning AB came into the bedroom and there was a discussion regarding what the accused had done to the complainant. The complainant told them that she wanted to report it to the police, but she was encouraged not to do so by MP and AB, both of whom cited concerns regarding the accused’s visa status.

9. MP, AB and the accused’s wife then went for a walk and the complainant stayed in her bedroom. The accused entered the room and apologised to her.

10. The complainant experienced a burning sensation when she urinated and felt as if her vagina had been cut or scratched and she noticed a blood-like discharge from her vagina.

11. The complainant remained at the beach house and stayed another night. She left on the Saturday shortly after the accused apologised in front of everyone for his behaviour explaining that he thought the complainant was his wife.

12. The complainant reported the matter to police on the afternoon of Monday 13 July 2020. The following day she attended Yarrow Place Sexual Assault Service and was examined by Dr Susan Pedler. Dr Pedler noted two 0.5cm diameter vaginal vestibule abrasions on each side of the vaginal opening which showed signs of early healing and were likely to have occurred days earlier. The injuries were likely to have been caused by a finger or penis or other object moving forcefully across the surface and damaging superficial layers. Dr Pedler also observed an area of inflammation on the posterior wall of the lower vagina 1-2cm in size together with redness and inflammation of the cervix.

13. The accused was arrested on 8 September 2020 and exercised his legal right to remain silent.

    The elements of the offence

14. To prove the offence of rape, the prosecution must prove beyond reasonable doubt the following elements:

    ·The accused engaged, or continued to engage, in sexual intercourse with the complainant; and

    ·The complainant did not consent to engaging in the sexual intercourse – or – had withdrawn consent to the sexual intercourse; and

    ·The accused knew the complainant did not consent or had withdrawn consent – or – was recklessly indifferent to the fact that the complainant did not consent or had withdrawn consent.

15. Sexual intercourse for the purposes of this trial means penetration of the complainant’s vagina by the finger or fingers of the accused and includes a continuation of that activity.

16. Consent involves free and voluntary agreement.[1] This requires a positive decision by the complainant to consent.[2]

    [1]     Criminal Law Consolidation Act 1935 (SA) s 46(2).

    [2]     R v Rahmanian [2010] SASC 137 at [32].

17. As Gray J explained in R v Blayney:[3]

    [3]     R v Blayney (2003) 87 SASR 354; [2003] SASC 405 at [75]-[76].

    There are a number of factors which may be relevant to determining the question of consent. They will vary according to the particular circumstances of each case. A person who does not offer actual physical resistance to sexual intercourse is not by reason of that fact alone to be regarded as consenting to sexual intercourse.

    …

    Mere submission of itself is not consent although it is an item of evidence that may be relevant when considering the question of whether the complainant consented. It may be relevant to whether the Crown has proved a lack of consent beyond reasonable doubt. It may also be relevant to the question whether an accused knew that the complainant did not consent or was recklessly indifferent as to whether thecomplainant was consenting. It may also be relevant to a suggestion that an accused had a reasonable although mistaken belief that a complainant was consenting.

18. It is necessary to distinguish between the situation where the complainant is so intoxicated as to be unable to consent and the situation where the complainant consents due to lowered inhibitions or otherwise.[4]

    [4]     R v Blayney (2003) 87 SASR 354; [2003] SASC 405 at [17], [23].

19. An accused is recklessly indifferent to the fact that another person does not consent to an act of sexual intercourse if the accused:[5]

    [5]     Criminal Law Consolidation Act 1935 (SA) s 47.

    (a)is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but decides to proceed regardless of that possibility; or

    (b)is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the other person does in fact consent, or has in fact withdrawn consent, to the act before deciding to proceed; or

    (c)does not give any thought as to whether or not the other person is consenting to the act, or has withdrawn consent to the act before deciding to proceed.

    Indecent assault as an alternative

20. This offence is a statutory alternative to the charge of rape. If I am not satisfied beyond reasonable doubt that the accused had sexual intercourse with the complainant by penetrating her vagina or labia majora with his finger with respect to any or all of the charges, I will find him not guilty of that charge (or charges) and then consider whether he is guilty of the alternative charge of indecent assault.

21. The elements of the offence of indecent assault are:

    ·The accused applied force to the complainant. For the purposes of this charge, the force applied need not be great. Indeed, a mere touch is sufficient.

    ·The use of force must have been intentional or deliberate. An accidental application of force is not sufficient.

    ·The complainant did not consent to the application of force. An accused person does not commit an indecent assault if he applies force to a complainant and the complainant consents to that application of force.

    ·The accused knew that the complainant was not consenting or was recklessly indifferent to whether she was consenting or not. An accused person is recklessly indifferent if he:

    a)    Is aware of the possibility that the complainant might not be consenting to the act but decides to proceed regardless of that possibility; or

    b)    Is aware of the possibility that the complainant might not be consenting to the act but fails to take reasonable steps to ascertain whether the complainant does in fact consent to the act before deciding to proceed; or

    c)    Does not give any thought as to whether or not the complainant is consenting to the act before deciding to proceed.

    If the accused honestly, although wrongly believed that the complainant was consenting, perhaps because he misinterpreted her words or conduct, then he would not have the necessary guilty state of mind.

    ·The assault occurred in circumstances of indecency. It is for me to determine what is indecent having regard to reasonable contemporary standards. It is for me to determine, by reference to those standards, whether I consider any conduct proved in this case to have been indecent. ‘Indecency’ means some form of sexual conduct or activity which, in my opinion, ought to be regarded as indecent having regard to the circumstances of the conduct or activity and contemporary standards of morality and decency.

    Issues in dispute

22. The issues in dispute are:

    ·Has the prosecution proved beyond reasonable doubt that the accused performed an act of sexual intercourse upon the complainant, namely digital penetration of the complainant’s vagina on any of the occasions alleged by the complainant.

    ·If sexual intercourse has been proved beyond reasonable doubt, has the prosecution proved that the complainant did not consent to that act of sexual intercourse.

    ·If the prosecution has proved beyond reasonable doubt that the complainant did not consent, has it proved beyond reasonable doubt that the accused knew she was not so consenting or was recklessly indifferent as to whether she was consenting.

23. The defence case was that no acts of sexual intercourse were performed upon the complainant and if I am not satisfied beyond reasonable doubt that any were, then that is the end of the matter, and the accused must be acquitted of all charges.

24. However, irrespective of the defence case, if I am satisfied that any or all of the acts of sexual intercourse as alleged took place, I must then consider whether the prosecution has proved that the complainant did not consent to any or all of the acts of sexual intercourse and if so, whether the prosecution has proved that the accused knew she was not so consenting or was recklessly indifferent to whether she was consenting.

    General directions

25. The accused elected for trial by Judge sitting without a jury pursuant to the provisions of s 7 of the Juries Act 1927. As Lovell J observed in R v G,[6] whilst the Act is silent as to any requirement regarding the contents of the reasons for verdicts, such requirements are established in a number of authorities: see R v Keyte (2000) 78 SASR 68, Douglass v The Queen (2012) 86 ALJR 1086; and AK v Western Australia (2008) 232 CLR 438 per Heydon J.

    [6]     R v G [2015] SASC 186.

26. The general directions were summarised by Lovell J in R v G. They are as follows:

    As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.

    The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged.

    The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.

    The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.

    I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.

    If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.

27. The accused elected not to give evidence. He was under no obligation to give evidence. No adverse inference may be drawn from the fact that he has exercised that right. In particular, the silence of the accused does not constitute any form of admission, may not be used to fill gaps (if any) in the prosecution case and may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt.[7]

    [7]     Azzopardi v The Queen (2001) 205 CLR 50 at [51]; R v Weetra (2010) 108 SASR 232 at [67].

28. Good character evidence was adduced through one of the prosecution witnesses, PG. It was also an agreed fact that the accused had no criminal history. If I accept PG’s evidence, unchallenged as it was, together with the agreed fact, the evidence has probative significance in assessing the likelihood of the accused committing the offences charged. Accordingly, I direct myself that I must bear in mind this evidence when considering whether I can draw from the evidence a conclusion as to the accused’s guilt. I direct myself that I can use this evidence in assessing the likelihood of the accused having committed any of the offences charged.

    The evidence

29. I turn to examine the evidence in more detail.

    Exhibits

30. The following exhibits were tendered by consent:

    ·P1: Diagram of layout of Normanville property.

    ·P2: Photograph of bedroom 2.

    ·P3: Photographs of alcohol bottles [at Normanville property].

    ·P4: Medical chart of examination of SS.

    ·P5: Statement of agreed facts.

    The complainant

31. The court was closed during the evidence of the complainant, and she gave her evidence with a one-way screen between her and the accused. A witness assistance officer, Ms Adrienne Rhodes was present throughout her evidence. Pursuant to s 13(7) of the Evidence Act 1929 I direct myself that these arrangements do not permit me to draw any inference adverse to the accused and nor do they influence the weight to be given to the complainant’s evidence.

1. I granted an application made by the prosecutor under s 34L of the Evidence Act to ask questions of the complainant about sexual activities she engaged in before and after the alleged offending. Before granting permission, I had to be ‘satisfied’ that either one of the criteria in s 34L(2)(a) or s 34L(2)(b) had been met, and that the interests of justice required that the questions be permitted. [8]

   [8]     R v Sparks (2014) 121 SASR 132 at [48]–[54].

2. The purpose of s 34L(2)(a) is to allow, with leave, questions to be asked, or evidence to be adduced, which are or is of substantial probative value, even if the subject matter is not probative of a fact in issue.

3. I was satisfied that the evidence was of substantial probative value and that its admission was required in the interests of justice because the evidence was relevant to the question of how and in what circumstances the vaginal abrasions and inflammation observed by Dr Pedler could have been caused.

4. The complainant was 38 when she gave evidence, Nepalese and divorced with a 17-year-old daughter. She had known MP for about 10 years and referred to her as ‘Didi’ which is a Nepalese term of respect for an older person. She assisted in securing employment for AB’s husband, PG in 2011. The accused was God-brother to AB, and it was in that context that she met him and his wife PP and became friends with them also.[9]

   [9]     T 23-25.

5. The holiday in Normanville was planned a month prior but there was no particular occasion being celebrated. At the time, the complainant had a partner, ND, whom she had been dating for about a year and whom she had known since 2012. She had not told those who stayed with her at Normanville that she was in a relationship because he was Australian. She explained that she would be perceived differently if she had disclosed that she was in a relationship with an Australian man.[10]

   [10]   T 25-26.

6. P1 was shown to the complainant. She said the accused and his wife slept in bedroom 3 and she and MP slept in bedroom 2. She slept with MP in the bed in front of the window because she was scared. She was not sure if there were two bedside lamps or one, but there was definitely one on the side on which she slept.[11] There was a door in bedroom 2 leading to the bathroom and laundry and a door in the hallway leading to the laundry.[12]

   [11]   T 28-29, 48.

   [12]   T 30.

7. After arriving at the beach house around 3:00 pm on 9 July 2020 and taking photographs, the group went to Second Valley to look around and returned to the beach house around dinner time.[13] While dinner was being cooked, everyone started drinking alcohol. The complainant had brought gin and pear juice but there was also gin and pineapple juice. The accused made drinks for everyone, including gin and then tequila. She told the accused not to give her too much, but he said that she could handle it because she was larger in size at the time.[14] They then opened the bottle of vodka and had vodka shots. Everyone was drinking although PG was not drinking as much as the others.[15]

   [13]   T 31.

   [14]   T 32.

   [15]   T 33.

8. The complainant said she rarely drank alcohol and this evening the effects of the alcohol she had consumed ‘suddenly’ hit her. She was sitting on the couch in the lounge room. AB was praising her husband and the accused. The complainant then said that she felt lonely in Australia and had no one to support her other than her one daughter. AB told her not to worry because they all loved her, and MP said the same thing. They then hugged her. The accused, who was sitting on the floor, also said ‘we are here. Don’t say that Didi’.[16]

   [16]   T 35-36.

9. The complainant explained that her partner supported her in everything, but she felt as if she did not have any Nepalese people with whom to share her feelings. She said she would not have said these things if she was not drunk.[17]

   [17]   T 37.

10. The complainant said that when she was on the floor lying down, she vomited on her right side after which MP removed her jumper and put the cushion under her head and either MP or PP put a blanket over her. She vomited twice.[18] She was not wearing a bra but did have on a maternity singlet. She then gave this evidence:

    [18]   T 89.

    I was lying on the floor and [AP] came so close to me, and he started whispering, ‘Don’t worry, we are here’, ‘Don’t worry, I am here’. That time I think [PG] took her baby to bed because she wasn’t settling. She wasn’t around that time, but I think – [PP] and [MP] was there, and they put blanket on me and [AP] was so close to me and he said ‘Don’t worry, we’re here’, and when he was talking to me, like whispering so close to me – sorry, and he started putting his finger inside my pants.[19]

    [19]   T 38, 5-14.

11. The complainant was wearing black trackpants with a drawstring and a singlet. When the accused was hugging her, he was kneeling over her with an arm over her. After the accused put his finger in her pants, she felt shocked and could not defend herself. She did not know what to do.[20]

    [20]   T 38-39.

12. At the time the accused put his finger in her pants, MP was ‘walking in the kitchen’.[21] AB was not there. PG had taken the baby to bed. The complainant could hear PP talking to MP, but she did not know exactly where she was. MP then returned and said to the accused ‘what are you doing?’ and told him off. MP then asked PG to come and help and said, ‘come here, look what happened’. As soon as the accused heard PG coming down, he went downstairs. The complainant could not recall who assisted MP to help her to bed; it may have been PP.[22]

    [21]   T 40, 9.

    [22]   T 40-41.

13. The complainant marked the location of the lounge and where she was sitting on P1.

14. When the accused was talking to her and putting his finger down her pants, the blanket was covering her. She did not recall him undoing her drawstring, but he forced his hand into her pants.[23] She described what he did with his finger:

    [23]   T 43.

    So he put his finger in and his, I don’t exactly remember, either middle finger or this one, but I think it’s middle finger (INDICATES) and he put his, my clit like left and right, kind of like either side, rubbing and putting, sometime putting in, out and rubbing inside.[24]

    [24]   T 44, 11-16.

15. The complainant then described what it felt like:

    It just that time I just, I was like shocked, I was one of those, like either fight or flight more, I couldn’t fight myself, I was just gone numb and I did not react and I didn’t know how or what to do and when, as I said, I couldn’t explain earlier that I work in the disability sector so it just seem to locked in syndrome, it’s just whole body, it’s locked but my brain knows what’s happening down there. So when he put in I just obviously didn’t feel any pleasure but hurt and uncomfortable.[25]

    [25]   T 44, 26-35.

16. The complainant did not say anything to the accused because she was in shock. She did not know for how long the accused was touching her but said that while they were both in the lounge room, he pulled his pants down and pulled her pants down. MP then came in and told him off and asked PG to come down and that is when the accused stopped.[26] When MP told him off his pants were still down.[27]

    [26]   T 45.

    [27]   T 47-48.

17. The complainant could not recall whether he pulled his pants down first before pulling hers down.[28] She could not say how far down he pulled his pants, and she did not notice whether he was wearing underwear. She said she could not see his genitals.[29]

    [28]   T 46.

    [29]   T 47.

18. When MP called out to PG he came out of the room and told the accused off and then the accused went downstairs.[30]

    [30]   T 47.

19. The complainant said that MP saw that the accused’s pants were down and also saw what colour underwear she was wearing.[31] MP helped her to bed, but she could not recall who it was who helped MP, it may have been PG.[32] When MP took her to bed, the complainant asked if MP would sleep with her as she was scared. The complainant slept on the side of the bed shown in P2 where the lamp was and MP slept on the side closest to the toilet.[33] Before they went to bed, MP asked her if she had green underwear on and when the complainant said ‘yes, why’ MP responded ‘you were so lucky. Because of me you safe today’, and then slapped her on the cheek. MP said ‘you act so strong and what’s wrong with you today. What happened and if I’m not here you be gone today’.[34] MP then said, ‘let’s go to bed’.[35]

    [31]   T 47-48.

    [32]   T 47.

    [33]   T 48.

    [34]   T 54, 4-11.

    [35]   T 54.

20. At some point after she had gone to bed the accused came into the room and started kissing her on the mouth, touching her left breast and then did the same thing with his finger as he did in the lounge room. He whispered in her ear, ‘Didi, I will come tonight, be ready’.[36] The complainant said she could not respond. She said:

    [36]   T 49, 33.

    …later, I just tap [MP] (INDICATES), she was next to me, and I tap, say ‘See, he is here’, and she would say ‘You’re too drunk, you’re just saying things. It’s not true’, and I sit here and then he was – like, this is the bed and it’s on the side of the bed, on my side of the bed, he was, like, lying down on the floor, but [MP] couldn’t see because she was other side of me (INDICATES).[37]

    [37]   T 49, 36-38; T 50, 1-6.

21. The accused lay on the floor on his stomach near the end of the bed.[38]

    [38]   T 89.

22. The lights were not on but there was a light from her telephone charger enabling her to see the shadow of a person.[39]

    [39]   T 51.

23. MP went back to sleep and around fifteen minutes later the accused returned and did exactly the same thing. The complainant did not know where the accused had been in the meantime. The complainant again woke MP by tapping her. MP could not see the accused because he hid in the same way as the first time. The complainant said to MP ‘there, there’ but she could not see the accused because he was hiding.[40]

    [40]   T 51-52.

24. After this, the complainant moved from her side of the bed to the side on which MP was sleeping and took her purple blanket and folded it over her so there was no gap through which the accused could touch her. She said the accused then returned for a third time:

    So he came back again, he tried to put his hand underneath me, but he couldn’t touch because of the blanket. But I said ‘he’s here again’. ‘He’s here again’. That time I could, because the lamp was just not far from me and I could touch it. My mobile or lamp something like lights up and then she could, I said ‘He’s there’ and she could see him and he jump on the air like. His hair wasn’t like, his hair was like big, I don’t know how to explain afro or something…it’s big curly buff hair, even jumping on the air. ‘Oh I come here to scare you guys’ and [MP] ‘This is not the time and this is not the kitchen, why are you here you should go and sleep’.[41]

    [41]   T 52, 21-29, 32-35.

25. The accused then went downstairs, and MP shut the door and went to the toilet. The complainant had asked her to leave the light on, so MP turned on the toilet light and left the door slightly ajar.[42]

    [42]   T 54.

26. The accused then returned for a fourth time. The complainant said, ‘he’s here’ and MP could then see him. The accused said, ‘I come here to get water’. MP told him ‘this is not the kitchen. Why do you need to come and get water here’. He then left. The complainant thought this took place around 4:00 – 4:30am. She could not sleep after this and was crying. She told MP everything that happened, including what occurred in the lounge room.[43]

    [43]   T 55.

    I told her that he put his hands inside my pants and that means – explain that he did something, you know, play or put his finger inside my vagina, but I didn’t explain that he rubbed left, right, in, I didn’t, because being respected person and the culture that is, I found uncomfortable to explain, but I did explain to her as much as I could in a respecting way what he did; he came, kiss and touch my boobs, and then start putting his hands inside my pants.[44]

    [44]   T 61, 21-29.

27. She told MP that the accused came into the room and started whispering ‘Didi, I will come tonight, be ready’. She explained this in Nepalese not in English.[45]

    [45]   T 63.

28. The complainant said that when the accused came into the bedroom on each occasion, he played with her clitoris with his finger by rubbing it and then put his finger in and out of her vagina. He kissed her on the mouth and touched her breasts under her singlet. She did not kiss him back, she said she was ‘like a live dead person’.[46] She explained:

    [46]   T 57.

    No, I didn’t say anything, and I didn’t – couldn’t defence, my body was like fluff like this, like I don’t know how to explain but it just – my brain and everything is shocked and my body’s so – become so weak and my hands, just even if you put left and – like, I just couldn't do anything. It same with my body, I couldn’t, like, react. I wish I could react I feel like now if I act – I wish I could react then if I knew I could do or if I could defence maybe I would scream or maybe punch his head or something, at that time I couldn’t do anything.[47]

    [47]   T 58, 3-13.

29. The complainant was not sure how long the accused touched her on each occasion that he came into the bedroom but thought it could have been four or five minutes.[48]

    [48]   T 59.

30. After the complainant told MP what had happened, AB came into the bedroom. The complainant then explained to AB what had happened. She then said to AB and MP that she should report it to the police. They both told her not to do this because it would affect the accused’s visa status. Both were pressuring her.[49]

    [49]   T 64-65.

31. AB, PP and MP then went for a walk. She went to the toilet and saw brown blood coming from her vagina. The complainant then sent a text message to her partner.[50]

    [50]   T 65.

32. The accused came into her room and said sorry in Nepalese and explained that he did not know what he was doing and that he thought she was his wife. He said he was ready to put his head on her feet which in Nepalese culture is a very significant gesture and a sign of genuine remorse. She told him she was tired and did not want to discuss the matter and he then left. He did not put his head on her feet.[51] She then went into the lounge room to clean up her vomit and found the drawstring from her trackpants on the carpet.[52] She picked up her jumper and then had a shower and breakfast.

    [51]   T 66.

    [52]   T 73.

33. When PP, MP and AB returned from their walk, PP came into her room and begged her not to report the accused. PP told her that if she reported him, it would affect his visa and she would kill herself. PP asked her to forgive the accused for whatever he had done.[53]

    [53]   T 67.

34. She and the others then went to Normanville where they went for a walk to a waterfall where photos were taken.[54] Her vagina hurt when she was walking, and it felt bruised and burnt. She had not felt any pain in her vagina the day before. [55]

    [54]   T 75.

    [55]   T 76.

35. PG and the accused then bought more alcohol and they all returned to their accommodation. She went to her room. Later she had dinner with everyone else but whilst sitting on the couch she became anxious and went back to bed.[56] She stayed the night in the same bed with MP, but she could not sleep. After breakfast the next day, she accompanied the others to Cape Jervis where photographs were taken. They then went to Rapid Bay and returned to the beach house for lunch.[57] It was then that she decided to leave and started packing her belongings. PP was crying and begging her not to report the accused to police.[58]

    [56]   T 77-78.

    [57]   T 78-79.

    [58]   T 79.

36. When the complainant was ready to leave, PP, AB and MP were in her room, and she was sitting on the ladder on the bunk bed. The accused then came in and put his head on her feet and said, ‘whatever I have done that I did – whatever I’ve done, it’s that I thought that you were my wife PP’. He then said, ‘please forgive me’ and ‘don’t report’. This was said in front of everyone.[59]

    [59]   T 80.

37. PG then told the accused if he had done wrong, he had to say sorry. The accused then apologised and put his head on her feet in front of everyone. PP was crying and begging her not to report him to the police. The complainant did not want to argue with everyone, so she said ‘okay’ and then left. She called her daughter who was staying in Second Valley with friends. She stayed for around an hour and then drove home to Adelaide. She went home a day earlier than she had planned.[60]

    [60]   T 81-82.

38. The complainant spoke to a friend of hers, EN, who encouraged her to report the matter to the police. Her partner, ND, then arrived and also told her to go to the police. He rang his sister who was a police officer. She and ND then went to his house and the next day she reported the matter to the police.[61] Before she did so, AB and PP called her a number of times and also came to her house, but she did not open the door. She did speak to AB and PP on the telephone. PP was crying and begging her not to go to the police and said she would kill herself. AB also asked her not to report the matter.[62]

    [61]   T 82-83.

    [62]   T 85.

39. On the Sunday night, PP called her, but she did not answer. AB sent her a message advising her that PP was trying to call her and asking her why she did not answer but the complainant ignored this message.[63]

    [63]   T 83-84.

40. She went to Yarrow Place on Tuesday, the day after reporting the matter and was medically examined.[64]

    [64]   T 86.

41. The complainant was asked about the last time she had any form of sexual intercourse involving penetration of her vagina before the alleged offending. She said she did not recall. However, she did not have any form of sexual intercourse involving penetration of her vagina after the alleged offending and before attending Yarrow Place.[65]

    [65]   T 86-87.

42. The complainant said her relationship with MP, AB and PG was really good at the time they went to Normanville. After reporting the accused to police, MP stopped talking to her. She spoke with AB for a month after the alleged offending, but they did not discuss it. She saw AB at work as the complainant was her manager.[66]

    [66]   T 91-92.

43. In cross-examination, the complainant said she was aware of the accused’s visa status. She became an Australian citizen in 2014 or 2015.[67]

    [67]   T 94.

44. The complainant said that after she married her husband introduced her to alcohol. In Nepalese culture, women drinking alcohol was frowned upon.[68]

    [68]   T 95.

45. The complainant agreed that she signed her first statement on 29 July 2020, the second on 20 June 2021 and the third on 25 September 2022. She agreed that in her first statement to police she said that when she grew up in Nepal women were not allowed to drink alcohol but this meant it was not socially acceptable, but it was not illegal. [69] She said women drinking is not something that should be done openly.[70] She said that getting drunk is bad and if people saw her drunk and vomiting that would be embarrassing. However, she said that the closeness of her relationship with MP would mean it was not as embarrassing to drink or become drunk in front of her.[71]

    [69]   T 98-99.

    [70]   T 99.

    [71]   T 100.

46. The complainant denied having difficulties remembering exactly what happened on the night of 9 July 2020 but said there were a couple of seconds during the alleged offending that she did not remember.[72] She had never been that drunk before in her life.[73]

    [72]   T 102.

    [73]   T 103.

47. The complainant said that MP would have been more judgmental towards her if she had told her that she had an Australian boyfriend. MP had always encouraged her to get back together with her husband.[74]

    [74]   T 103-104.

48. When she slipped from the couch to the floor, AB, PP and the accused were in the lounge room. About 5-10 minutes later she started vomiting.[75] She placed herself on the scale of sobriety (1 being sober and 10 so drunk as to be unable to stand) as 7 or 8 out of 10.[76]

    [75]   T 105.

    [76]   T 106.

1. When the accused moved closer to her, saying ‘don’t worry we are here’ PP and MP were still in the room. She agreed that in Nepalese culture a man and a woman who were not married should not be physically close to each other. She agreed that it would not be acceptable to be in a photograph with the accused alone.[77] It was not socially acceptable for the accused to be lying on the floor right next to her.[78]

   [77]   T 108.

   [78]   T 109.

2. PP put the blanket over the complainant when the accused was kneeling close to her on the floor, but she did not say anything at the time.[79] He was kneeling with his legs underneath and behind him and facing her and his hip and bottom were close to her vagina.[80] He put his right hand inside her pants as soon as the blanket was put over her.[81]

   [79]   T 110.

   [80]   T 113.

   [81]   T 114-115.

3. After PP put the blanket on her, the complainant said she did not know where she went. MP said she was going to the toilet, but she did not know what time she went to do that or how long she was gone. She agreed that at the time the accused touched her vagina, it was possible that MP and PP were still in the room.[82] She agreed that someone standing in the lounge room would have been able to see clearly the accused’s hand under the blanket. Neither PP nor MP said anything at any time about the accused being so close to the complainant.[83]

   [82]   T 115.

   [83]   T 117.

4. The complainant agreed that she told police that the accused sitting on the floor really close to her was not normal for a married Nepalese man.[84] However, she said that the fact that the accused called her Didi meant that they were like brother and sister and so it was okay for him to be that close to her at that time.[85]

   [84]   T 118.

   [85]   T 119.

5. The complainant said that her legs were together in a bent position but the accused was still able to put his hands into her pants and his finger into her vagina without pulling her pants down.[86] When the accused pulled her pants down and his down she did not recall him having played with her breasts.[87]

   [86]   T 120-122.

   [87]   T 123.

6. When MP said she was going to the toilet, the accused already had his hand in her pants and after she said this, he started pulling her pants down. When he pulled her pants down, he pushed her over onto her back.[88] He pulled her pants down to her thighs as well as her underwear. She said he pulled his pants and underwear down, but she did not see his genitals. He was kneeling over her as if he was about to have sex with her when he pulled her pants and his down.[89] MP came back and said, ‘what are you doing’ and then called PG for help. PG opened the door and the accused got up and pulled his pants up and went downstairs.[90] She did not think that PG saw the accused or her when their pants were down. PG said, ‘we need to go to bed’ and either PG and MP helped her to go to bed or just MP.[91] She could not recall PG saying anything to the accused.

   [88]   T 124-125.

   [89]   T 126-127.

   [90]   T 127.

   [91]   T 128.

7. She agreed that she had said in examination in chief that PG had told the accused off as well.[92] When asked why she gave that evidence, she said:

   [92]   T 129-130.

   I was thinking, not thinking, I was like he didn’t go down to downstairs all the way to downstairs. As I said, when he was coming past, that he had to cross the stairs, like he had to go to stairs first and to go to the loungeroom. That I mean like maybe he had met there and maybe that’s what I heard that he told him off, but I don’t 100% remember.[93]

   [93]   T 130, 36-38; T 131, 1-4.

8. The complainant said she may have told Dr Pedler that in the lounge room the accused had kissed her while he put his fingers in her vagina but said her brain was ‘still cloudy’ at the time she spoke to Dr Pedler. She said the accused did not kiss her.[94]

   [94]   T 132.

9. When MP slapped her and told her that if she had not been there, she ‘would have been gone’ she understood that to mean that if MP had not returned at the time she did, the accused would have raped her.[95] When MP slapped her, it was after she asked her whether she had green underwear on. MP told her off, criticising her for being vulnerable.[96]

   [95]   T 134.

   [96]   T 135-138.

10. When the accused came into the room and kissed her, touched her breast and put his finger in her vagina, she felt as if she could not defend herself and her hands would not move. She could not say anything and did not try. She agreed that she was able to tap MP and tell her that the accused was there, or that he had come back.[97] When she tapped MP, the accused still had his finger in her vagina but by the time she woke up he had removed his finger and was lying on the floor.[98] When MP told her that the accused was not there, she did not tell MP that he was lying on the floor.[99]

    [97]   T 141.

    [98]   T 143.

    [99]   T 143-144.

11. The complainant was not certain whether the accused left the bedroom between the first occasion and second occasion upon which he put his finger in her vagina. She agreed that she told police that he had hidden on the side of the bed for ten to fifteen minutes before getting up and touching her again.[100] However, she said what she meant was that he might or might not have left the room.[101] She said when she tapped MP and told her that the accused was there, she was hoping MP would save her.[102]

    [100] T 148-149.

    [101] T 151.

    [102] T 154.

12. When she swapped sides with MP she did not know if the accused was still hiding on the side of the bed, but she did not tell her that he was still lying there on the ground.[103] She did not see the accused leave the room.[104]

    [103] T 158-159.

    [104] T 160.

13. The complainant agreed that when describing to police the occasion when she turned the light on and MP saw the accused next to the bed she said MP told him ‘this is not the kitchen’ and did not mention to police that she said ‘this is not the time to scare people’.[105] The complainant said that on both occasions when MP saw the accused she said the same thing, ‘this is not a kitchen’.[106]

    [105] T 162-163.

    [106] T 164.

14. The complainant was asked if she tried to kiss the accused in the loungeroom or grab his groin area and she said no.[107] She agreed that she did not tell MP that the accused put his finger in her vagina but said that MP would have understood her to mean this when she said he put his hand in her pants. She did not tell MP that the accused ‘tried’ to touch her.[108]

    [107] T 164.

    [108] T 166-167.

15. When the complainant and MP were speaking the next morning, MP told her that the accused tried to tap her, but the complainant told MP it was in fact she who did this.[109]

    [109] T 167.

16. The complainant said that no one had ever offered to put their head on her feet and that this was a big deal in Nepalese culture. She agreed that when she first told police the accused came into her room to apologise, she did not tell them that he offered to put his head on her feet.[110]

    [110] T 168-169.

17. The complainant agreed that she did not tell police that the accused asked her not to report the matter to the police. She explained that she did not tell police because she did not remember him doing this because he only said it once. [111]

    [111] T 173-175.

18. When AB and PP telephoned her after she returned home, her daughter recorded the conversation, but she was not aware that this was occurring at the time.[112] She found out a few months later.[113] She sent the recording to the investigating officer.[114] Her daughter also recorded a conversation the complainant had with MP without her knowledge.[115]

    [112] T 179-180.

    [113] T 181.

    [114] T 182.

    [115] T 182-184.

19. The complainant denied that she had always intended to leave Normanville on Saturday because she was planning to spend the night with her partner ND.[116] She could not recall the last time she had sexual intercourse with ND but said it would not have involved the type of sex that caused her pain or soreness.[117]

    [116] T 185.

    [117] T 185-186.

20. The complainant denied trying to kiss the accused or grab his groin area in the loungeroom and denied making up an allegation of rape to deflect attention from her behaviour. She denied telling the accused that he needed to apologise to him, or she could have him deported.[118]

    [118] T 187-188.

21. In re-examination, the complainant agreed that she did tell police in her second statement that MP had told the accused, ‘This is not the time to scare’.[119]

    [119] T 192.

    MP

22. MP gave her evidence through an interpreter. She came to Australia in 2005 or 2006. Her daughter AB is married to PG, and they have a daughter, A. She knew the complainant but said she was not close to her. The accused and his wife lived with her for a while when they came to Australia and were looking for a house.[120]

    [120] T 193.

23. On 9 July 2020, MP went to Normanville for a holiday. She shared a bedroom with the complainant. When they had first arrived at the beach house, she asked the complainant if she could sleep in the large bed with her and she agreed.[121]

    [121] T 208-209.

24. On the first night they had dinner, and everyone was singing, dancing and having fun. Everyone was drinking alcohol. She did not drink a lot of alcohol because she had health issues.[122] She drank raspberry vodka cruiser.[123]

    [122] T 194.

    [123] T 195.

25. The complainant was the most affected by alcohol, followed by the accused and AB and PG were mildly affected. The complainant was drinking continuously and vomited and was unable to walk and required support. Around 11:00pm, she was lying on the floor and half-conscious and would not listen to what was being said to her. At this point, AB, PG and their daughter had gone to bed.[124]

    [124] T 196-197.

26. When the complainant vomited, she, the accused and PP helped to clean it up. There was vomit on her chest, stomach and face.[125] At this time, the complainant was saying to herself, ‘I like sex, but I don’t like to do sex with my husband. I don’t like husband sex’ and she was pulling the accused’s collar and touching him on his private parts. PP was telling them to move away.[126] The accused was sitting close to PP at this time. The accused said to the complainant, ‘please sister, don’t cry, we are here with you, don’t cry’. MP and PP were saying the same thing.[127]

    [125] T 204.

    [126] T 205.

    [127] T 205-206.

27. The complainant was on the floor for about an hour and vomited three times. The third time, MP told PP not to clean it up because she might vomit again. She then asked PP to help her take the complainant to bed and they stood either side of her and the accused was holding the back of her head. All three of them took her to bed and once in the bed, MP put the doona over her.[128] The complainant slept on the side of the bed shown in P2 where there is no lamp.[129]

    [128] T 207.

    [129] T 208.

28. When she and the complainant went to bed there was dim light in the room, but she was not sure if there was a light on or not. MP had turned the lights in the bathroom on and left the door half open after they had put the complainant in bed. She also turned the lamp on because she wanted to make sure that the complainant could see things and make her way to the bathroom if needed.[130]

    [130] T 211.

29. After going to bed, the complainant scratched at her and said ‘he came, and he came’ but was not making complete sense. MP told her to sleep because she was tired and drunk and needed to rest.[131] MP looked around the room and did not see anything and told the complainant there was no one there and to go to sleep. The complainant settled for a while and then said the same things again but also made noises suggesting she was going to vomit again.[132] MP looked around again and saw nothing and tried to calm the complainant down. The complainant was still unsettled and murmuring the same things. After that, MP covered her own face and tried to get some rest. Before doing so, she offered to swap sides with the complainant, after which she calmed down a bit.[133]

    [131] T 211.

    [132] T 212-213.

    [133] T 214 -215.

30. The complainant continued to say things and MP turned around and saw the accused in the bathroom holding a cup. He said he had come for water and by mistake he went to get water from the bathroom instead of the kitchen.[134] She told him that this was not the kitchen, it was a bathroom, and he could get water from the kitchen. He said sorry and left.[135]

    [134] T 215.

    [135] T 216.

31. The next morning MP woke up and went to the kitchen to drink water and prepare breakfast. She heard AB, PP and the complainant laughing in the bedroom and talking about going out.[136] After this, she and PP and AB went for a walk. She was not involved in any discussion regarding what had occurred the night before.[137]

    [136] T 217.

    [137] T 219.

32. MP described the complainant as happy the next day and that night MP slept in the bunk bed and the complainant in the large bed. [138]

    [138] T 219-220.

33. She found out the next day that the complainant was leaving to go to a dinner with her boyfriend’s family.[139] MP said she did not find out about any allegation of sexually inappropriate behaviour by the accused until a month or so later when her daughter told her.[140]

    [139] T 220.

    [140] T 221.

34. In cross-examination, MP said that she did not leave the complainant between the time she vomited to the time she was taken to bed. When the complainant was grabbing the accused’s private parts, PP saw that and was not happy and asked him to move a bit. MP told PP that the complainant was drunk and did not know what she was doing.[141]

    [141] T 222.

35. PG was in his room, and she did not see him when she and PP and the accused were helping the complainant to bed. Neither AB nor PG helped her put the complainant to bed. MP did not see the complainant’s or the accused’s pants down. She did not see the accused put his hands in the complainant’s pants.[142] She denied slapping the complainant in the face when they went back to the bedroom but said she poked her cheek and told her she needed to go to sleep and rest. She denied saying to the complainant ‘if I wasn’t there you could have been gone’.[143]

    [142] T 223.

    [143] T 224.

36. MP agreed she may have told police on 4 January 2021, ‘I could hear my daughter talking to [SS] in our room. I did not hear what they were saying, I was not involved in that conversation. A bit later [SS] was telling AP and PP something like ‘you need to say sorry to me, I am the permanent resident, you are the student’. However, she could not now recall this exactly or where she was when she heard this.[144]

    [144] T 226-227.

    AB

37. AB is married to PG, and they have a five-year-old daughter, A. She has known the accused since he came to Australia. She came to Australia in 2012.[145]

    [145] T 229.

38. On the weekend that everyone went to Normanville, her mother, MP, and the complainant slept in the same bedroom upstairs. The accused and PP slept in a bedroom downstairs. On the first day, they arrived around lunchtime and then went to Normanville beach, and then returned to cook for dinner. Everyone was drinking alcohol. AB felt tipsy, but she could not really tell if everyone else was really drunk.[146]

    [146] T 231.

39. She went to bed before midnight because their daughter was tired and agitated. Her husband came to bed about 15 minutes later. They woke up around 6:00am the next day.[147]

    [147] T 235.

40. Before she went to bed the complainant was on the couch chatting to the others.[148] She became a bit emotional for a brief period, but AB said to her ‘forget about it. It’s maybe for the best it happened’. She then explained that she said this because the complainant had a boyfriend after her marriage had broken down. The complainant then cheered up and started telling people to drink more and told everyone they were talking and not drinking.[149]

    [148] T 232.

    [149] T 233.

41. AB said she knew that the complainant had a boyfriend before they went to Normanville. She had not met him.[150]

    [150] T 234.

42. The next day when she woke up, she heard her mother and the complainant talking. She went in and saw them in the double bed.[151] She asked if they were ready to have breakfast. Her mother left and then she asked the complainant if she was okay, because she was a bit quiet. The complainant then said that the accused came and tried to touch her.[152] There was no mention of reporting the matter to the police and AB thought that this occurred after they returned from their holiday. Later in her evidence, AB said that she could not recall if the complainant mentioned this while at Normanville but later when she was at her mother’s house she did say, ‘what should I do, should I report it or not?’ and AB told her it was up to her,[153] and to do what was best for her.[154]

    [151] T 236.

    [152] T 237.

    [153] T 245.

    [154] T 238.

43. AB then decided to check with the accused and his wife and ask them whether anything had happened. She went for a walk with her mother and PP. She spoke with PP when her mother was taking photographs and asked her if anything happened between the accused and the complainant. PP told her that it would not be possible because she was there the whole time. AB then told PP that she and the accused needed to talk to the complainant about it and sort it out.[155]

    [155] T 238.

44. When they returned from the walk, PP, the accused and the complainant went downstairs for about ten or fifteen minutes and then PP and the complainant came back up laughing and chatting as normal and she thought that perhaps it had been a misunderstanding and it had been sorted out. That day they went to a waterfall and took photographs and returned for dinner and everyone ate together and watched television, and everything seemed normal.[156]

    [156] T 239.

45. On the Saturday morning everyone went out to look at Rapid Bay or Cape Jervis and took photographs and then returned to the beach house. When they got back the complainant said to her that the accused had to apologise to her before she left. The complainant said that she had a copy of the accused’s passport and if he did not apologise the complainant said ‘I can deport these people’.[157] AB then asked the accused if he could apologise to the complainant, but he said he did not want to apologise because he had not done anything. AB asked him to apologise for her sake to make the situation better for now.[158]

    [157] T 242.

    [158] T 241-242.

46. Everyone was in the complainant’s room when she was packing and the accused said ‘look if I did something – I’m sorry if I did something, but I treat you like my sister. I wouldn’t have done it, like, you know. I wouldn’t have done it because I treat you like my sister’.[159] The complainant was okay with the apology and said she accepted it and left shortly afterwards. Everyone else left the next day, around 10:00am. [160]

    [159] T 243, 5-8.

    [160] T 243.

    PG

47. PG moved to Australia with his wife, AB, in 2000. He has known the complainant since 2012. He met her husband who was a friend of his mother-in-law,[161] and he helped PG obtain employment on a mushroom farm. PG had known the accused for about six years and met him when he was living at his mother-in-law’s house.[162]

    [161] T 268.

    [162] T 269.

48. PG said that on 9 July 2020 his family travelled to Normanville to stay in a two-storey beach house with his mother-in-law, the complainant, the accused and his wife.[163] The holiday was arranged after the group discussed going somewhere for a holiday and the accused had just finished university.[164]

    [163] T 269.

    [164] T 270.

49. They arrived at Normanville around 3:00pm and unpacked their bags and then they all went for a sightseeing drive. They returned around 5:00pm and the women started cooking and everyone started drinking alcohol. PG had five or six beers. They ate dinner, watched television and talked. AB went to bed around 10:45pm and he went to bed around 11:00pm.[165]

    [165] T 271.

50. He felt a little tipsy after the beers. When he went to bed everyone else was still drinking. Everyone else was tipsy and having fun but not falling over or wobbly. The complainant was drinking gin and then tequila from shot glasses. When he went to bed they were still all in the lounge area talking.[166]

    [166] T 272-273.

1. The accused was a little drunk, but he did not notice anyone who was really blind drunk or falling over. He was woken up around 8:00am or 9:00am by AB. On the Saturday AB told him that the complainant wanted an apology from the accused. The situation was awkward because the complainant and the accused were their friends so he said that the accused should just apologise so the situation did not escalate. Everyone went into the complainant’s room and gathered around. However, because A was running around and they were near stairs, he and MP took turns looking after her. He heard the accused say, ‘look I was wrong, I can’t remember anything, but anything happened I’m sincerely sorry’.[167] The complainant responded, ‘look, I am this much years old, and nothing happened to me so far, even in Nepal and now I’m in Australia, safe country, but it happened to me, from the people I know’.[168]

   [167] T 275, 36-38.

   [168] T 276, 2-5.

2. PG said that from the start, the complainant had not planned to stay the whole three nights and was going back on the Saturday to meet someone.[169]

   [169] T 275.

3. PG did not hear anything about the matter being reported to police and the complainant was still attending their house after they returned from the holiday. AB told him a couple of weeks later that the complainant was going to report the matter to police and he said that if she felt violated it was her right to do that. No discussions about reporting the matter to police occurred at Normanville as far as he was aware.[170]

   [170] T 277.

4. In cross-examination, PG agreed that he heard the accused say, ‘sorry I was drunk I don’t remember what happened to [SS]’ but he did not see the accused put his head on the complainant’s feet. He agreed this was a big deal in Nepalese culture and was an important way of saying sorry if a person had done something wrong by someone.[171]

   [171] T 278.

5. PG then gave good character evidence regarding the accused. He said that his reputation amongst others that knew him was of being an ‘honest man, a good man, always helping and if you ask for anything that he can do he would do it’.[172]

   [172] T 279.

   ND

6. ND gave evidence that he had been in a relationship with the complainant since 2018. He met her in 2012 when they worked in the same organisation. He is a disability support worker. [173]

   [173] T 281.

7. ND said that the complainant was intending to return from the holiday to Normanville on the Sunday but came home a day early. He did not have any plans to see her on the Saturday night but did meet up with her at EN’s house.[174]

   [174] T 281-282.

8. ND said that he and the complainant were sexually active before she went away for the weekend to Normanville, but he could not recall when it was that he had last engaged in sexual intercourse involving penetration of her vagina.[175]

   [175] T 282.

   Dr Susan Pedler

9. In July 2020, Dr Pedler was employed as the medical coordinator at the Yarrow Place Rape and Sexual Assault Service. She gave evidence of her qualifications and experience. There was no challenge to her expertise. I accept that she is an expert in her field and could give opinion evidence regarding physical examinations of women and the likely causes of any observable injuries, symptoms or pathology results. I bear in mind that, as trier of fact, I am not obliged to accept the opinion evidence of an expert and must evaluate that evidence in light of the evidence led in the trial as a whole.

10. On 14 July 2020 she examined the complainant. She first obtained her consent to undergo a physical examination. No forensic procedures were carried out because of the delay between the alleged offending and the examination.[176]

    [176] T 250.

11. A history was taken from the complainant which she noted contemporaneously, and which was a verbatim account. However, she did not note those parts of the account that were not relevant.[177] The complainant said she only wanted an examination of her vaginal area, but she did mention a bruise on her knee which Dr Pedler subsequently examined.[178] The complainant was not asked when she last had any form of sexual intercourse because a forensic procedure was not being performed.[179]

    [177] T 251-252.

    [178] T 251.

    [179] T 252.

12. The bruise on the outside of the right knee was 1.5cm in diameter, purple and irregular in shape and patchy in colouration. The complainant did not recall how it had occurred. A medical chart of the examination of the complainant was tendered: Exhibit P4. On vaginal examination, Dr Pedler found abrasions just below and either side of the vaginal opening, approximately half a centimetre in diameter. They were red in colour and had a sloughy base. In Dr Pedler’s opinion, these abrasions were healing.[180] The abrasions were likely caused by forceful contact moving across the surface of the opening of the vagina by a body part or object penetrating through the opening of the vagina.[181]

    [180] T 253-254.

    [181] T 255.

13. Dr Pedler said she had not seen this form of abrasion caused by a tampon but said there was no clear relationship between the object penetrating the vagina and the type of injury or its severity because the vagina is such an elastic organ. It was possible that it could have been caused by a finger or penis or object. Dr Pedler estimated that the injury had been caused a number of days before. She could not say whether the injury was originally larger and that the abrasions observed were smaller as a consequence of a healing process over a number of days. It was possible that the injuries related to force applied four and a half days earlier, but it was also possible that they related to force applied more recently or a longer period of time than four and a half days.[182]

    [182] T 255-256.

14. Dr Pedler said it was possible that the injuries were caused by penetration of the labia only but the fact that they were bilateral made it more likely that something was going through that was touching both sides.[183]

    [183] T 256.

15. Dr Pedler said it was likely that a person with such abrasions would feel vaginal pain, but it was not always the case that a person would be aware of the existence of the injury. In her experience, some people have not complained of vaginal pain, but the abrasions were consistent with vaginal pain or pain when urinating. Bleeding was possible but if the abrasion was very superficial, there might not be any obvious bleeding.[184]

    [184] T 256-257.

16. Dr Pedler collected swabs for pathology to screen for infection and those results came back negative for infection. An internal vaginal examination was conducted, and Dr Pedler noted an area of inflammation that was one centimetre by two centimetres wide in the lower vagina at the posterior wall, just inside the opening. The likely cause of that inflammation could be infection, vulval or vaginal disorder of the skin or mucosal lining or forceful impact from an object or a body part being placed inside the vagina. This injury could have been caused by penetration with a finger, erect penis or another type of object. [185]

    [185] T 258-260.

17. Dr Pedler also noted an ectropion on the cervix which is an area of redness on the surface of the cervix. It can relate to the use of hormones, such as contraceptive hormones. It was possible that it was caused by trauma, but it is more usually the result of other factors. Dr Pedler said it was quite common to see this in women who were not reporting a sexual assault. [186]

    [186] T 260.

18. Dr Pedler said the injuries she observed could have been caused by consensual or non-consensual penetration of the vagina.[187]

    [187] T 261.

19. In cross-examination, Dr Pedler confirmed that the complainant told her there were three separate instances of digital penetration by the accused. Her notes recorded that the complainant said the following:

    Initially in the lounge room [AP] was sitting on the floor next to me he started putting his fingers in my vagina under the blanket I was feeling so scared that I couldn’t do anything …

    Later just [AP] and [MP] were in the lounge room with me [MP] said she needed to vomit so she went to the toilet then he was putting his fingers in my vagina and kissing my lips,

    …

    ‘I remember when she came back from the toilet’ [MP] said ‘his pants were down and my pants were down I don’t remember pulling my pants up ...[188]

    [188] T 264, 10-17, 23-25, 30-34.

20. Dr Pedler explained that the complainant said ‘down’ and not ‘up’ in relation to the note that the complainant did not remember pulling her pants up. Dr Pedler explained that the complainant was telling her what MP had told her she had seen when she came back from the toilet.[189]

    [189] T 264-265.

21. Dr Pedler recorded that the complainant told her she had ‘blackouts and fluctuating consciousness intoxicated’ and that she said she did not remember everything that happened.[190]

    [190] T 265, 8-10, 26-28.

22. Dr Pedler agreed that if the injuries were caused by a finger, it was not possible to determine whose finger that was. She also agreed with the proposition that it was not possible to determine whether the vaginal injuries were caused by consensual or non-consensual penetration of the vagina or non-sexual penetration of the vagina. She also said that the severity of the genital injuries was not predictive of the specific type of assault or the severity of the assault.[191]

    [191] T 266.

    Agreed facts

23. The following facts were agreed:

    1.The complainant made a report of the allegations to police at Golden Grove Police Station at about 2p.m. on Monday, 13 July 2020.

    2.The accused was arrested by police on Tuesday 8 September 2020. He exercised his right not to answer questions.

    3.The accused does not have any criminal history.

    Closing submissions

    Prosecution

24. Mr Cunningham, for the prosecution, said there was no dispute that the accused and the complainant were together for a weekend away with friends in July 2020. He also said that there was no dispute that the complainant was heavily intoxicated before being helped to bed by MP. Mr Cunningham said there was conflicting evidence regarding whether the complainant had plans to return on the Saturday or the Sunday but said nothing turned on that. The central issue in dispute is what happened just before the complainant went to bed and what occurred in the bedroom afterwards.

25. Mr Cunningham contended that I ought not find that the complainant obfuscated when asked about whether she had made prior inconsistent statements to police. Rather, that she was prolix in her answers in part because of confusion, stress and a lack of understanding of the terminology used in the questions.

26. Mr Cunningham said that it was not inherently unlikely that, after consuming alcohol, the accused would put his hand down the complainant’s pants and insert his finger into her vagina, under the guise of comforting her after her emotional outburst.  He said it was not inconceivable that, when the complainant heard MP announce that she was going to the toilet, he seized the opportunity to pull his and her pants down.

27. Mr Cunningham said that the complainant’s evidence of the accused whispering in her ear and her demeanour when she gave that evidence was compelling. She appeared to be haunted by the memory of it, associating it as she did with the traumatic event of being raped.

28. Mr Cunningham conceded that there was no evidence that MP in fact left the room to go to the toilet and if so, which toilet she used.

29. Whilst acknowledging that the alleged offending in the bedroom was inherently risky and brazen, given the fact that the complainant was sleeping in a bed with MP, Mr Cunningham said that the complainant’s behaviour in the lounge room may have emboldened him to believe he could engage in it again. He relied upon the accused’s apparent level of intoxication and the resulting disinhibition. Mr Cunningham said there was support for the accused being upstairs because MP gave evidence that she saw him in the bathroom on one occasion. Even if I accepted MP’s evidence that the bedside lamp and bathroom light were on, Mr Cunningham argued that the accused’s behaviour was not inherently unlikely.

30. Mr Cunningham argued that the paralysis experienced by the complainant when the sexual acts alleged were being performed was not irreconcilable with her capacity to alert MP to his presence by tapping her and telling her that the accused was present. The complainant’s failure to tell MP that the accused was hiding on the floor next to her side of the bed was explicable by reason of fear, intoxication and her cultural background.

31. The complainant’s evidence of a complaint to MP was not corroborated by MP. Nevertheless, Mr Cunningham argued that I should accept the complainant’s evidence and find that the complaint was made at a time that one might expect her to complain. He also said that it demonstrated a level of consistency, notwithstanding that the complainant did not specifically complain of digital penetration. Her failure to do so was consistent with her evidence about Nepalese culture and the status of MP as a respected elder.

32. Mr Cunningham submitted that it would be bizarre for the complainant to fabricate an account of the allegations and then fabricate an account of a complaint to MP if no such complaint had been made. Mr Cunningham urged me to find that MP had tailored her evidence to omit any reference to the complaint because it was clear from the evidence of AB and PG that they were both aware of allegations of impropriety the next day. Mr Cunningham said that MP was at pains to paint a picture of normality and cheer, with the complainant behaving normally and nothing untoward apparent or observed. This is to be contrasted with her daughter’s evidence of the complainant’s demeanour and the request for an apology from the accused.

33. Mr Cunningham relied upon AB’s evidence of the conversation with the complainant, not as initial complaint, but as evidence from which I could infer that the others became aware of the allegations the next day. Accordingly, I could use this evidence to evaluate the credibility of MP’s denial of any knowledge of the allegations until some weeks later. However, I could not use the evidence of the conversation between the complainant and AB as in any way supporting the complainant’s account that she complained to MP at an earlier point in time. 

34. Mr Cunningham conceded that there was no evidence corroborating the complainant’s account of MP being in the bedroom at the exact time that the accused apologised. However, he argued that it was highly unlikely that MP would not have been made aware of it by family members.

35. Mr Cunningham emphasised the fact that MP’s evidence did support that of the complainant on the topic of the complainant waking her up and telling her someone was in the room. There were inconsistencies in their respective accounts of the number of times this occurred and how many times MP saw the accused in or near the bedroom. There was no need for the accused to be anywhere near the bedroom or bathroom because he had a kitchenette and bathroom downstairs where he could get a glass of water. Mr Cunningham asked me to infer that there were glasses and other cutlery and crockery in the kitchenette in a holiday house of this type. Accordingly, it was improbable that the accused was upstairs looking for a glass of water.

36. Mr Cunningham urged me to view with circumspection MP’s evidence that she was tired but did not sleep at all and therefore, inferentially, would have been alerted to the accused entering the room. Mr Cunningham noted that she became aware of the accused in the bathroom at some time after he entered, and after she had been roused by the complainant. Mr Cunningham conceded that her evidence of seeing the accused in the bathroom was not entirely consistent with a witness tailoring evidence to exclude the possibility of the offending having occurred.

37. Finally, Mr Cunningham said that the medical evidence provided compelling support for the complainant’s evidence of the alleged offending. Mr Cunningham said that the suggested motive to lie, namely embarrassment at her own behaviour, should be rejected. However, he conceded that if there was no evidence of a motive to lie, I would nevertheless have to be satisfied beyond reasonable doubt of the complainant’s credibility and reliability on crucial matters.

    Defence

38. Mr Marcus, for the accused, said there were three major deficiencies in the complainant’s evidence, and thus the prosecution case:

    1.   The complainant’s evidence was contradicted by the evidence of other prosecution witnesses.

    2.   The allegations made by the complainant were inherently unlikely.

    3.   There were aspects of the complainant’s account that were not reliable or credible, as the result of the fallibility of memory, effect of intoxication, cultural issues and inconsistencies in account.

39. Mr Marcus emphasised that on the complainant’s account, almost immediately after PP put a blanket on her, the accused put his hand down her pants and a finger into her vagina. Then, when PP had left the room and MP left to go to the toilet, he pulled his and her pants down and put the complainant on her back and assumed a position astride the complainant. Further, despite this apparent attempt to have sexual intercourse with her being witnessed by MP and stopped by her, the accused ventured into the bedroom in which the complainant was sleeping in the same bed as MP and on two occasions digitally penetrated her before attempting to do so a third time.

40. Mr Marcus emphasised the fact that, on the complainant’s account, she was frozen with fear, and unable to cry out, move or defend herself and yet at the same time she was able to tap MP and tell her the accused was in the room. Further, it was inexplicable that the complainant would not simply tell MP that the accused was lying on the floor next to the bed.

41. Mr Marcus said a number of assertions made by the complainant were directly contradicted by the evidence of other witnesses:

    ·The complainant said she was not so intoxicated as to lose consciousness. MP said she was unable to walk and required support and was lying on the floor half conscious.

    ·The complainant said that MP returned to see her with her pants down and the accused with his pants down and remonstrated with him. MP said no such thing happened.

    ·The complainant said MP called out to PG for assistance and he then came into the lounge room and remonstrated with the accused. MP said she did not do so, and PG said he went to bed around 11:00pm and did not wake up until 8:00 or 9:00am the next morning.

    ·The complainant said MP slapped her and told her that if it was not for her, she would have been ‘gone’. MP denied doing either of those things and said she poked her cheek.

    ·The complainant said that the accused was in the bedroom on the third occasion and when the light was turned on pretended to be there to scare them. MP gave evidence of only one occasion upon which she saw the accused and that was when he was in the bathroom, and he had a cup in his hand and was looking for water.

    ·The complainant alleged that she told MP the accused had put his hand down her pants. MP denied knowing anything about the allegations until some time after the holiday.

    ·The complainant alleged that the accused put his head at her feet in front of the others. No witness corroborated her account of this.

    ·The complainant said she was intending to stay there until Sunday. PG understood the complainant intended to stay until Saturday.

    ·The complainant said that she had not told anyone on the holiday at Normanville that she had a boyfriend. AB said she knew the complainant had a boyfriend but had not met him.

    ·The complainant denied mentioning or making any threats with respect to the accused’s visa status. AB gave evidence that the complainant referred to the accused’s passport and her capacity to deport people like him.

1. Mr Marcus said that the persons who were present at the holiday house in Normanville that weekend were friends with the complainant and the accused. There was no obvious or overt allegiance to one party or the other.

2. Mr Marcus emphasised the prior inconsistent statements to Dr Pedler, namely that there were two instances of digital penetration in the lounge room and kissing and that she had blacked out. Then there was the prior inconsistent statement to police in which the complainant said that the accused was lying on the floor for ten to fifteen minutes between the first and second occasion of digital penetration in the bedroom. Further, the complainant omitted to tell police in her first statement that the accused put his head at her feet. Finally, she did not assert in any of her statements to the police that the accused told her not to report the allegation to police.

3. Mr Marcus contended that the complainant’s explanation for it being acceptable, despite Nepalese cultural protocols, for a married man to be physically close to her, namely because the accused used the term Didi (sister) was not credible. Finally, Mr Marcus said that if I were to accept MP’s evidence regarding the complainant’s sexual overtures towards the accused that this, combined with her gross intoxication, provided a motive to fabricate an account of the accused making unwanted sexual advances against her.

4. Mr Marcus conceded that Dr Pedler’s evidence supported the allegation of penetration and the self-reported symptoms, but that evidence did not exclude the reasonable possibility that those abrasions and resultant symptoms were the consequence of consensual sexual intercourse with her partner prior to the holiday.

5. In closing, Mr Marcus reminded me of the good character evidence led through PG and as part of the agreed facts. He submitted that this was a case where the evidence, when viewed as a whole, was insufficient to prove any of the charges beyond reasonable doubt.

   Findings of fact on undisputed matters

6. On the undisputed, unchallenged or otherwise agreed evidence in this trial I make the following findings:

   1.The accused has no prior criminal history and is a person of good character.

   2.Between 9 July 2020 and 12 July 2020, a beach house at Normanville (‘the Normanville beach house’) was rented for the purpose of a holiday for the accused, the complainant, MP, AB, PG and their young child A.

   3.The complainant stayed at the Normanville beach house from 9 – 11 July 2020 and left prior to lunch on Saturday 11 July 2020.

   4.The complainant reported the alleged offending to police on 13 July 2020.

   5.The accused was arrested on 8 September 2020 and declined to answer questions.

   6.The complainant attended Yarrow Place Sexual Assault Service on 14 July 2020 and was examined by Dr Susan Pedler. On examination, Dr Pedler found abrasions just below and either side of the vaginal opening, approximately half a centimetre in diameter. They were red in colour and had a sloughy base. These abrasions were healing at the time of the examination. The abrasions were likely caused by forceful contact moving across the surface of the opening of the vagina by a body part or object penetrating through the opening of the vagina. There was also an area of inflammation that was one centimetre by two centimetres wide in the lower vagina at the posterior wall, just inside the opening. The likely cause of that inflammation was infection, vulval or vaginal disorder of the skin or mucosal lining or forceful impact from an object or a body part being placed inside the vagina. This injury could have been caused by penetration with a finger, erect penis or another type of object. There was an area of redness (an ectropion) on the surface of the complainant’s cervix. The abrasions and inflammation, but not the ectropion, were likely caused by penetration of the vagina by an object.

   7.On the evening of 9 July 2020, the complainant consumed alcohol to the extent that she was significantly intoxicated. The complainant rarely consumed alcohol and on 9 July 2020 she consumed more alcohol than she ever had previously.

   8.The complainant and MP shared a bed in bedroom 2 as depicted in P1 on the night of 9 July 2020. The accused and his wife slept in the downstairs bedroom and AB and PG, and their daughter A slept in bedroom 1 as depicted in P1.

   Discussion

7. To find the charges proved I must be satisfied beyond reasonable doubt that the evidence given by the complainant is credible and reliable. There is no doubt that the accused had the opportunity to commit the offences charged, however the only evidence capable of proving that he did so is the evidence of the complainant. It is necessary to conduct a careful assessment of both the credibility and reliability of each of the witnesses, but particularly the complainant, given that both her reliability and credibility were in issue.

8. I bear in mind that the only evidence of the offending is that given by the complainant; there is no corroboration of the offending and no admission by the accused as to any aspect of the allegations.

9. I bear in mind that in trials such as these the offending often, by its nature, occurs in circumstances where it will not be witnessed and there will be no opportunity for it to be detected. However, in this case the complainant alleged that the offending occurred in the presence of one of the witnesses, MP, and with respect to the first charge, the accused was seen by MP with his pants down astride the complainant whose pants were also down. Further, the complainant alleged that both MP and PG remonstrated with the accused regarding his behaviour on the occasion of the first charge.

   Initial complaint

10. The complainant gave evidence of an initial complaint to MP. She explained that she told MP what happened in the lounge room, and each time in the bedroom. She did not give evidence of anything MP said in response to this disclosure.

11. MP gave evidence that she was unaware of the allegations until sometime after the holiday weekend.

12. If I accept the complainant’s evidence that she did complain to MP and reject MP’s evidence on that topic I can use this evidence for the limited purpose of understanding how the matter first came to light. I would also need to consider whether the initial complaint demonstrates consistency of conduct of the complainant such that it buttresses her credibility because of the circumstances in which she made the complaint and its content and any consistency between it and her evidence about the relevant events.

13. AB gave evidence that the complainant had told her that the accused ‘tried’ to touch her. This is not evidence of initial complaint. If I accept the evidence that the complainant said this, it is evidence of a prior inconsistent statement regarding the alleged offending and may be relevant to the complainant’s credibility and reliability.

14. I cannot use this evidence to resolve the conflicting testimony of the complainant and MP regarding whether an initial complaint was made. In other words, if I accept that the complainant told AB that the accused tried to touch her, that cannot be used to reason that it is more likely that the complainant made a complaint to MP.

    The ‘apology’

15. The complainant gave evidence that the accused apologised to her and said he did not know what he was doing, and he thought she was his wife. The complainant said that the accused put his head on her feet.

16. Post offence conduct is a species of circumstantial evidence. If I accept the complainant’s evidence regarding the apology, the question of whether it demonstrates a consciousness of relevant wrongful conduct amounting to an implied admission of guilt will depend on the terms of the apology, the circumstances in which it is made, the nature of the offences charged and the other evidence in the case.[192] The question of whether the apology can constitute proof of a consciousness of guilt of the crime or crimes charged is overwhelmingly one of context.[193]

    [192] R vCiantar (2006) 16 VR 26 at [40].

    [193] Butler v The Queen [2011] VSCA 417 at [134].

17. In my view, even on the complainant’s evidence, the apology does not constitute proof of a consciousness of guilt of any or all of the offences charged. It is an acknowledgment of some wrongdoing or misconduct by the accused vis-à-vis the complainant. The evidence of the accused placing his head at her feet is, on all accounts, evidence of a deep remorse and has cultural significance and symbolism. The apology in its terms is general and does not specifically admit of the allegation of digital penetration. For the same reason, I do not consider that the evidence, if accepted, that the accused put his head at the complainant’s feet is proof of a consciousness of guilt of any or all of the offences charged.

18. I note that none of the other prosecution witnesses corroborated the complainant’s account that the accused put his head at her feet in front of them. Further, there is a conflict in the evidence given by the complainant and that given by AB and PG regarding the terms of the apology offered by the accused. The latter suggest that the apology was proffered at AB’s request and in circumstances where the accused did not admit that he had done anything wrong. It was an apology proffered to resolve an ‘awkward’ situation and at the complainant’s insistence.

    Evaluation of prosecution witnesses and conflicting testimony

19. I accept the unchallenged evidence of Dr Pedler and the opinions she expressed. However, her evidence does not establish beyond reasonable doubt that that there was non-consensual penetration by the accused’s finger of the complainant’s vagina on three separate occasions.

20. The presence of abrasions and inflammation support the complainant’s account of non-consensual penetration by the accused’s finger but are also consistent with consensual penetration of the complainant’s vagina by a penis or finger or other object at some earlier time than 9 July 2020.

21. The evidence of the complainant and ND leave open the reasonable possibility that the abrasions and inflammation observed by Dr Pedler were the result of consensual sexual intercourse between the two of them prior to 9 July 2020.

22. There is a clear and irreconcilable conflict between the evidence of the complainant and MP, AB and PG on the following crucial topics:

    1.MP witnessing the accused astride the complainant with his pants down at a time when her pants were down.

    2.MP remonstrating with the accused for his conduct towards the complainant in the lounge room and informing the complainant that, but for her intervention, the complainant would have been ‘gone’.

    3.PG’s presence at the time of or immediately after the first charged offence and his remonstration of the accused for his conduct.

    4.MP witnessing the accused in the bedroom when the complainant turned on the light and the accused said that he was there to scare them.

    5.The complainant telling MP that the accused had put his hand down her pants in the lounge room and the bedroom.

    6.The accused putting his head at the complainant’s feet in the presence of MP, AB and PG.

    7.The accused urging the complainant not to report the allegations to police.

23. The fact that there was conflicting evidence given by prosecution witnesses is nothing novel.

24. In R v Macfie (No 2),[194] Eames J reviewed the authorities on this topic in detail and concluded that, at least in cases in which the criticism of the prosecution witnesses is peripheral to the prosecution case, and the prosecutor does not rely upon the suggested dishonesty or lack of credibility of the prosecution witnesses as proof of the Crown case, the credibility of those witnesses may properly be impugned in closing submissions. In many cases, the impugning of the evidence of a prosecution witness will be necessary and appropriate in order that inconsistencies between the evidence of prosecution witnesses may be resolved.

    [194] R v Macfie (No 2) (2004) 11 VR 215; [2004] VSCA 209.

25. In Goncalves v The Queen,[195] Wheeler J said:

    [195] Goncalves v The Queen (1997) 99 A Crim R 193 p 216.

    …there is no rule which prevents a party from calling witnesses who give inconsistent accounts of a series of events. Nor is it the case that a party is prohibited from submitting that the court should prefer the account of one its witnesses to the account given by another…

26. In Graham v Police,[196] Gray J referred to Goncalves and many of the earlier authorities and concluded:

    [196] Graham v Police (2001) 122 A Crim R 152 p 165; [2001] SASC 93 at [44].

    It is now settled that in the criminal court the Crown may call witnesses who give inconsistent accounts of a series of events. The Crown may submit that the court should prefer the account of one witness to that of another. The court can draw conclusions as to credit.

27. It is open to a prosecutor to call a witness to give evidence only part of which the prosecution considers to be worthy of belief. There is no rule prohibiting a prosecutor from submitting to the trier of fact that portions of the evidence which were not consistent with the guilt of an accused might be rejected or disbelieved.[197]

    [197] R v Macfie (No 2) [2004] VSCA 209; R v Andrews [2010] SASCFC 5; R v Smith; R v, Livingstone-Wright & Ors [2019] EWCA Crim 1151.

28. Mr Cunningham argued that I should find that MP tailored her evidence to avoid supporting the complainant’s account and to avoid implicating the accused. He also argued that her evidence that she was awake throughout the night was untrue, and deliberately so in order to assist the accused, given the obvious implication that she would have seen him if he had entered the room three times as the complainant alleged. Mr Cunningham’s submissions did not go so far as to suggest that MP was in league with the accused or that there had been a deliberate pre-conceived plan to lie.

29. Whilst it was appropriate for Mr Cunningham to address the conflict and incompatibility of the evidence of the complainant and MP and urge me to prefer the evidence of the complainant over that of MP, there was no evidence of the nature of the relationship between MP and the accused such as to suggest a basis for bias and consequent untruthfulness. Further, MP was not given the opportunity to answer the allegations as to her credibility that were made in the closing submissions. There is no evidentiary basis, and it would be unfair to resolve the conflicting evidence of the complainant and MP on crucial topics by finding that MP lied out of a desire to avoid implicating the accused or to assist him in his defence. 

    Evaluation of complainant’s evidence

30. The evidence of the complainant was at times prolix. Whilst her distress at recounting the alleged offending appeared genuine, for the reasons that follow I have reservations regarding the reliability and credibility of her account.

    Effect of alcohol consumption

31. The complainant had consumed a significant quantity of alcohol and was unable to walk unassisted. She required help to walk to the bedroom. She vomited a number of times. It is a reasonable possibility that the amount of alcohol she consumed has affected the reliability of her recall of events of that evening. 

    Inherent likelihood of account

32. I formed the view that the account given by the complainant of the offending was inherently unlikely. On the complainant’s account, the accused, without warning or any overt display of sexual interest in the complainant, inserted his finger into her vagina within seconds of his wife placing a blanket over her when she was lying on the floor drunk. He did so in the presence of MP and at a time when his wife was in the kitchen nearby and could have observed his hand under the blanket. Despite the apparent attempt to disguise his offending by concealing his hand under the blanket, he shortly thereafter pulled down his pants and the complainant’s pants and was seen kneeling astride her by MP.

33. After being caught out in this way, and his behaviour castigated, the accused then determined to enter the complainant’s bedroom and repeatedly digitally penetrate her whilst MP was lying next to her in the bed. This occurred on each occasion without MP noticing. The complainant said she was unable to move, cry out or defend herself when the accused was raping her in the bedroom, but she repeatedly tapped MP and told her the accused was in the room. Despite waking MP and alerting her to the accused’s presence, MP was not able to see the accused lying on the floor next to the bed at any time, including when she swapped sides with the complainant.

34. In assessing the likelihood of the complainant’s account, I have taken into account the evidence of good character. It has probative significance in assessing the likelihood of the accused committing the offences charged. I have borne in mind this evidence when considering whether I can draw from the evidence a conclusion as to the accused’s guilt. I can use this evidence in assessing the likelihood of the accused having committed either of the offences charged.

    Remaining in the beach house

35. The complainant did not return to Adelaide the next day but engaged in social outings with the rest of the group and stayed in the beach house the following night but said she left on the Saturday instead of the Sunday because of the accused’s conduct. 

    Proved prior inconsistent statements

36. The complainant told Dr Pedler that the accused digitally penetrated her twice in the lounge room and kissed her and that she blacked out. She told the police that the accused remained in the bedroom for 10-15 minutes between the second and third occasion of digital penetration. In her first statement to police the complainant made no mention of the accused putting his head at her feet and did not allege in any of her statements that the accused asked her not to report the matter to police.

    Conflicting testimony of other prosecution witnesses

37. In evaluating the complainant’s evidence, I have also considered the evidence of the other prosecution witnesses.

38. After making allowance for the fact that her evidence was given with the assistance of an interpreter, I formed the impression that MP was forthright, frank and assertive in the witness box when answering questions. As I have observed, her evidence directly contradicted the evidence of the complainant on crucial topics. I accept her evidence of the complainant’s state of intoxication, noting that she had only had a few drinks and was in a better position to accurately describe the complainant’s behaviour and degree of sobriety.

39. I accept her evidence that the complainant was emotional and behaving erratically and that she, PP and the accused were trying to calm her down and comfort her while she was lying on the floor.

40. MP said she was with the complainant between the time she vomited and when she was taken to bed. It follows that if the events in the lounge room as described by the complainant occurred, MP would have seen them. Further, the complainant said MP remonstrated with the accused after seeing him with his pants down astride the complainant, whose pants were also down exposing her underwear.

41. I do not consider it reasonably possible that if events unfolded in this way, MP has since forgotten them. Accordingly, the stark contrast between the evidence of the complainant and MP cannot be explained by reason of MP’s poor or faulty recall or the complainant being mistaken as to her presence.

42. On the state of the evidence, I am not prepared to infer that MP has lied in the witness box on this issue, and I am not prepared to reject her evidence on that basis or on the basis that her evidence of what occurred is not reasonably possible.

43. I am suspicious that the accused acted in some way in the late evening of 9 July 2020 that upset the complainant and that she perceived as some form of sexual advance or attempt to touch her and which she found distressing and disturbing, particularly in her intoxicated state. That state of distress led her to become concerned that the accused may have been in or near her room later that night, causing her to tap MP saying, ‘he came, he came’. I accept the evidence of the complainant that she swapped sides with MP, but I find that this occurred because MP offered to do so after it appeared to her that the complainant was going to vomit again.

1. I do not consider it a reasonable possibility that the accused entered the room on three occasions and was able to behave in the manner described by the complainant and avoid detection, particularly after the complainant alerted MP to his presence. The complainant’s evidence regarding the actions of the accused namely, that he hid next to the bed on each occasion immediately after the complainant tapped MP, is difficult to accept and I am troubled by the complainant’s inability to adequately explain why she did not simply tell MP, or point out to her, where the accused was.

2. I accept MP’s evidence that she saw the accused holding a cup in the bathroom when she was in bed with the complainant. If she was tailoring her evidence to assist the accused, it is an odd thing to volunteer that she saw him in the bathroom late at night. It is not implausible to think that the accused went upstairs during the night or that he decided to fill a cup with water from the bathroom. The light was on in the bathroom, and it was accessible from the hallway immediately at the top of the stairs. There is no evidence regarding the amenities available in the accused’s bedroom and whether the kitchenette was furnished with cutlery or crockery.

3. I also accept MP’s evidence that she left the bathroom light on to enable the complainant to find the bathroom and not because the complainant asked her to after the accused had jumped in the air and said he was there to scare them. I consider this to be both plausible and credible given that the complainant was very intoxicated and might well need to use the bathroom and was in a house that was unfamiliar to her.

4. Given the findings I have made I am left in a position where I am unable to reject MP’s evidence that she was unaware of any allegations of sexual impropriety by the accused until after the holiday, let alone the detail of the complaint as alleged by the complainant. However, I am not prepared to find that she was completely unaware that there was an issue between the accused and the complainant, whether that be second-hand through her daughter or son-in-law or because she believed the complainant was making overtures towards the accused. I suspect that MP paid little attention to the matter, having formed the impression that the complainant had consumed far too much alcohol.

5. I formed a favourable impression of the witnesses, AB and PG. I consider that each of them was doing their best to tell the truth and did not appear to have any bias against the complainant or the accused.

6. I accept the evidence of AB that the complainant told her the accused ‘tried’ to touch her. This statement is inconsistent with the evidence of the complainant that digital penetration occurred three times. It is inconsistent with the terms of the complaint alleged to have been made to MP.

7. However, if the complainant experienced, or believed she experienced an attempt by the accused to touch her, against the background of Nepalese cultural norms forbidding physical intimacy or closeness (even in a photograph) between a married man and someone other than his wife, this would have caused her significant distress, particularly in her intoxicated state.

8. I accept AB’s evidence that the complainant wanted an apology from the accused and that she repeated this in front of AB and PG the next day when they were in the complainant’s room. However, the conversation as recounted by AB and PG did not involve a specific or explicit allegation of sexually inappropriate behaviour by the accused. I accept their evidence regarding the manner and terms of the apology offered by the accused. The apology is not evidence from which I can infer a consciousness of guilt of any or all of the offences charged and nor is it an admission of guilt.

9. I accept PG’s evidence that he and MP were taking turns looking after A, who was running around near the stairs and that it is possible MP did not hear all of the conversation during which the accused apologised. In these circumstances, I am not prepared to reject MP’s evidence that she was not aware of such an allegation being made by the complainant until after the holiday.

10. Accordingly, I am not prepared to act upon the evidence of the complainant that she told MP ‘everything’ that happened.

11. I reject the complainant’s evidence that the accused put his head on her feet in front of everyone. It is clear from the evidence that such a gesture is of particular significance and one that is steeped in Nepalese culture. However, the complainant made no mention of it to police in her first statement. Further, both AB and PG denied that this occurred when they were present in the complainant’s room at the time of the accused’s apology. I prefer and act upon their evidence on this topic.

12. I reject the complainant’s evidence that the accused told her not to report the matter to police.

    Conclusion

13. In the circumstances, and noting the other reservations I entertain regarding the complainant’s reliability and credibility, I am left in a position where I have a reasonable doubt regarding the allegation of rape by digital penetration in the lounge room on 9 July 2020 and the allegations of rape by digital penetration in the bedroom on 9 or 10 July 2020. Whilst I suspect that the accused may have engaged in some conduct that was culturally inappropriate and which offended the complainant, the evidence adduced by the prosecution has not satisfied me beyond reasonable doubt that the accused inserted his finger into the complainant’s vagina or labia majora on any of the occasions alleged.

    Verdicts

14. I find the accused not guilty of each charge of rape.

15. Although I am of the view that the accused probably behaved inappropriately towards the complainant, for the reasons set out above, I cannot be satisfied beyond reasonable doubt that the elements of the alternative offence have been proved. I find the accused not guilty of the alternative charge of indecent assault.