R v Austin - [2012] SADC 19

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v AUSTIN
Criminal Trial by Judge Alone
[2012] SADC 19
Reasons for the Verdicts of His Honour Judge Stretton
24 February 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
The accused was charged with aggravated serious criminal trespass in a place of residence and rape, it being alleged that he returned to the complainant’s Whyalla house late at night after attending there earlier with friends, entered without permission and forcibly had sex with her without her consent. The accused pled not guilty. He did not give evidence. The defence was that it had not been proven beyond reasonable doubt that he entered the house without consent or that the agreed intercourse that occurred was without consent, raising a number of matters relevant to the complainant’s credibility.
Held: That the evidence proves both charges beyond reasonable doubt. The verdict is accordingly guilty of both counts.
Evidence Act 1929 s 34L(5), s 47, referred to.
R v Nguyen (1998) 102 A Crim R 577; R v Heinze [2005] VSCA 124, considered.

R v AUSTIN
[2012] SADC 19

At Whyalla in the early hours of Thursday the 25^th of November 2010 Simon Lee Austin entered the complainant’s house. He discovered her awake in her bedroom, and had sex with her. After this, the complainant ran next door to her neighbour. The next morning she attended the Whyalla police station, thereafter giving statements to police.
The complainant says that Mr Austin entered her house without permission and raped her.
Whilst the accused Mr Austin has not given evidence in this trial, he has pled not guilty, and his counsel submits that the case against the accused has not been proven beyond reasonable doubt.
The charges
The accused is charged with two offences.
The accused is charged with aggravated serious criminal trespass in a place of residence, in particular that he entered or remained in the complainant’s house as a trespasser, intending to rape her, with the complainant being lawfully there, knowing she was there or being reckless as to whether anyone was there.
He is also charged with rape; in particular that he had penile vaginal sexual intercourse with the complainant without her consent, knowing or being recklessly indifferent to the fact that she was not consenting.
The accused did enter the complainant’s house and have sex with her
DNA samples were taken from the complainant and the accused Mr Austin. The accused’s DNA was located in the complainant’s vagina.
It was agreed at trial that the accused had had sexual intercourse with the complainant at her house in the early hours of the morning of Thursday 25 November 2010.
The issue is consent
The complainant says that the accused entered and remained in her house over her objections and without her consent, threatened her, and had sex with her despite her objections and without her consent.
The accused has pled not guilty and through his counsel argues that neither charge has been proven beyond reasonable doubt.
Whilst the defence agreed at trial that the accused entered the house and had sexual intercourse with the complainant, the accused’s counsel argues that it has not been proven beyond reasonable doubt that the complainant did not consent to the accused’s presence in her house, and that it has not been proven beyond reasonable doubt that she did not consent to sex.
The prosecution case rests primarily on the evidence of the complainant. There were no other witnesses to the accused entering the house and having sex with the complainant. The medical examination of the complainant casts no light on the issue of consent. It is not alleged that the accused injured the complainant in the course of his contact with her.
Legal principles
This is a trial by judge alone.
I apply without repeating all the directions and principles that would be outlined and explained to a jury.
It goes without saying, but it is of such fundamental importance I that I do repeat that each charge is separate and will be decided on the evidence relating to that charge alone, that the accused enters this court with a presumption of innocence and is not to be convicted of any charge unless and until each and every element of that charge is proven beyond reasonable doubt by evidence led at trial.
Whilst the accused exercised his legal right not to give evidence in this trial, and no evidence was led of any interview or statement by the accused, absolutely no adverse inference can arise from either of those factors. Those factors do not in any way relieve the prosecution from establishing every element of each charge beyond reasonable doubt.
It is important to note that the law now specifically provides that on a trial of a charge of a sexual offence, the judge is not required by any rule of law or practice to apply a warning that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim of the offence.[1]
[1] Section 34L(5) of the Evidence Act 1929.
The complainant’s evidence
The complainant gave evidence that on the date of the alleged offence in November 2010 she was living with her partner at his house in Head Street, Whyalla Stuart. She had been living with him since May or June 2010. He however had been away for several months for work, mud crabbing in Darwin.
On the day before the night in question, the complainant said she was probably hanging out at the house during the day with friends. She said that she would play “Guitar Hero” and drink. She said she drank fruity lexia, a cask wine. She did not have a clear memory of what happened during the day prior to the night in question, and while she spent time with a friend who I will refer to as HS, she didn’t really remember what they did in any detail. She said she would have seen another friend who I will refer to as BB sometime during the day.
The complainant said that around 7 o’clock in the evening her friend HS left. Around that time, she was on the porch next door, talking on her neighbour’s phone to her boyfriend in Darwin. She said she talked with him about the fact he was not back for his birthday as previously arranged, and that she was disappointed that he was not back, and “just like relationship talk, like, the love thing, whatever”.[2]
[2] T162.
The complainant said that while she was on the phone she saw three people come to her house. She knew one of them as Richard, a person who would drink with her partner, but not the others. She now knows the other two as the accused and Archie Taylor. She said the three seemed drunk, but that she recalled Richard and Archie also spoke to her boyfriend on the phone for a couple of minutes each.
The complainant said the three men had alcohol with them. They also had a dagger which they were interested in selling. The complainant invited them back next door to her house. The group listened to music, played “Guitar Hero” and drank, with the complainant drinking her cask wine and the others drinking as well. The complainant said that at some stage, perhaps it could have been 11 or 12pm, she went with Richard around to BB’s house to retrieve some alcohol, returning perhaps a half an hour later.
The complainant said that some time after they returned to her house, Richard’s girlfriend turned up at her house with perhaps 15 other aboriginal girls. Something had apparently happened, and although nothing had occurred between her and Richard, his girlfriend was jealous as she thought that the complainant may have been trying to get her boyfriend. As a result, the aboriginal girls attacked and assaulted the complainant, and went through her house and took some of her possessions. She said she was punched, dragged and slammed to the ground. She said she was thrown onto her couch. The complainant said that she was crying, angry and upset. The women went through the house, taking things. The three men did nothing to stop any of it. She said she yelled at them all to get out of her house, and eventually after about 20 minutes they all did leave, the three men included.
The complainant said that after the group left she went to her bedroom, put foundation over her bruises and ran next door. It was about 3am. She said that at that stage she was not concerned about the men, rather she was scared that the girls would come back and beat her up again.[3]
[3] T172.
The complainant said she had a cup of tea with her neighbour. She said she had nothing with her but her skirt and top, in particular no shoes, so she went back to get her shoes. When she was back at her house she said she started to put some more makeup on because of the injuries to her face. She also had music playing, so did not hear anyone enter her house, but as she sat at the mirror in her room she saw the accused enter her room from the hallway that led to the back door of the house.[4]
[4] T174-175.
She described what happened in the following way:
ATurned around and said ‘what the fuck are you doing in my house? Like who the fuck – you can’t just walk in here’ and then –
QAnd then what happened.
AThen that’s what he grabbed me ‘Shut the fuck up’, I don’t know what he says, put his hand over my mouth, grabbed me and threw me on the bed, told me to shut up or he was going to stab me, I’m singing out to my neighbours, no-one was in – sorry about this.
At this point the complainant became audibly and visibly upset, sniffing and verging on tears. The evidence continued:
QNo-one was in my fucking house, and I knew that my next door neighbour was waiting for me to come back, because I only said I was getting my shoes, and he just kept telling me to shut up, so I did, I shut up and just laid there like a dickhead. I don’t want to die, I don’t want to die, and that’s when he ripped my stockings off. He kept trying to go down on me, so anyway – [5]
[5] T175.
The complainant again became audibly and visibly upset. A short time later she was able to continue:
A……. And then he ripped, like grabbed, he – because I wear stockings all the time and my underwear over the top, and then he tried to rip my underwear off and got there and ripped my stockings at the same time, pulled them off, and then he was trying to go down on me, and I kept pushing his fucking head away and then he kept coming back up, and then he just pulled down his pants and – kept trying to kiss me, and that’s when he actually – and to tell you the truth, it didn’t last for long, it wasn’t like I was raped for fucking ages, but he held my hands down and shit and, yeah (INDICATES).
QJust in your own words, just tell me specifically what he did. I need to know what he did.
APut his dick in me and come in me, held me down by my wrist. I just laid there. He had sex with me. He didn’t get – he didn’t get to do anything like down there because I kept pushing his head, that’s why he would come up, and just wanted to fuck me. Sorry that’s the way I say it because that’s how I feel. Yeah, and then rolled over and laid next to me like everything was a happy little story.[6]
[6] T177.
The complainant said that this took about five minutes. She was asked what the accused did and what happened next.
AHe was acting like a fricking weirdo, like we were in some relationship or something, like because – it might sound weird that I say that, but this is why I say it was weird. He was asking questions like ‘Were you checking out Richard?’. I don’t even know this guy. ‘You’ve like fucked me and you’re asking me if I’m checking out your mate?’, which they were cousins or something, and he was asking me random questions and things like that. And I said ‘No, you’re all right. You’re fine’. What was I going to do? I said ’Do you just want to go out and watch TV, listen to some music or something?’. I had to keep playing the game. There was no way I was getting out anywhere, especially when he was threatening me with a knife, that’s when I – I had no pants or nothing except for my top, so I grabbed my tracksuit pants sitting by the side of my bed, I grabbed the tracksuit pants, put on my Nikes, sat on the lounge – that same lounge that I was pushed on – sat on the lounge, he sat on the lounge next to me, I got up and said ‘I’m putting on music’. As soon as I went to put the music on, that’s when I – I’m the only one in the house that doesn’t lock the screen door. My partner, he locks the screen door, so thank god bless I don’t. When I went to pretend to put music on, I (INDICATES) straight to the front door, quick, grabbed and bam, out the front door. I even jumped my neighbour’s little fence when I am so unfit, and I literally jumped his fence and he was out in the middle of the lawn by the time I had already jumped the fence, and he is already ‘What the fuck, (name given)?’.
QWho is saying that.
AThis Simon.
QHe came out after you did he?
AYes.
QThen what happened.
AWell then I was just banging and like in my neighbour’s – he answered the door straightway, and that’s when I was in Steve’s house and sitting on the couch and trying to tell him what’s happening and that. He is like ‘Relax. Relax. Just go to sleep. Chill out.’, so I was crying, I was hysterical, I was crying for ages and I stayed at Steve’s and rang my nanna first thing in the morning, and that’s when she took me to the police station. So – I don’t know what he did after, he could have been in my house doing whatever, but I was not going back. I didn’t even know. I was mental.[7]
[7] T178-179.
The complainant was asked to expand on the detail of the events and was taken through what she had said again. She was asked what she said when she called out to her neighbours at the outset of the attack, and she said she had yelled “Steve. Fucking help me, I’m getting fucking raped.”[8] She said she did not consent to the accused being in her house or to any sexual contact with him. She said she constantly tried to push him off while he was doing it, up until a point when she just laid there because she realised she couldn’t do anything about it.[9]
[8] T179.
[9] T183.
The complainant identified her ripped stockings in the photographs, and they were also tendered.[10]
[10] Exhibit P6.
After the complainant spoke to the police, she was taken to Adelaide for medical examination, and several weeks later it is agreed she identified the accused from a photo array.[11]
[11] Statement of Agreed facts P2, paras 8-9.
The complainant was cross examined at considerable length by defence counsel.
Overall, it was put to her in cross examination that she had in fact broken up with her partner when she talked to him on the phone that evening as he had not returned to Adelaide for his birthday as had been anticipated, and it was suggested to her that she had consensual sex with the accused then subsequently accused him of rape, perhaps to get attention, perhaps because she was angry at her partner not returning as scheduled, perhaps because when she sobered up she was ashamed of what she had done the night before, or perhaps for a combination of some or all of these or similar reasons.
The complainant agreed that she was upset that her partner was not back as agreed, and that she had hung up on him, but that she was upset because she was missing him rather than being angry. She said she did not break up with him that night, although she agreed she might have said on the phone that she was sick of waiting for him. She agreed they had plans to attend a wedding in Port Lincoln on 27 November, which he also did not get back for. She said they did not break up, and that in fact they were still together. She agreed that she and the other three were drinking during the course of the evening, and that she had perhaps half a cask during the course of the day and evening, mixed with apple and blackcurrant drink. Whilst she agreed that she was loud, laughing and talking a lot, she said she didn’t sit next to the accused or flirt with him or any of the men, adding that she was in her boyfriend’s house with her boyfriend’s mate. She repeated that after she was assaulted by the women she went next door to her neighbour’s, had a cup of tea and had no more to drink. When shown a statement she made to police that she drank at her neighbours she said she must have said that, but that she didn’t now remember drinking there, she only now recalls the cup of tea. When asked about why she kept putting makeup on after being assaulted by the women, she said she wanted to cover up the bruises to her face from the attack by the women, and that she always wears makeup anyway.
She was cross examined extensively about the course of the day prior to 7pm, when and why she went to BB’s house during the evening, her drinking habits on the day and generally, and what she said to police about the detail of a number of these events in several respects. The complainant answered all these questions in an apparently forthright manner, indicating that while she remembered clearly what happened to her with the accused, there were heaps of details about the evening, like for example exactly what happened and the order and location of events when she was assaulted by the women, that she could not remember clearly. When cross examined about detail in her statements to police and small variations or omissions as compared to her evidence at trial, for example not telling police she was thrown on the couch by the women while she was being bashed by them, or for example much later in cross examination that she omitted telling the police in her first statement that she jumped the fence while she was escaping the accused, or at the very end of cross examination that she was inconsistent about which shoes she wore at various times, she responded in ways similar to the following passage:
A……… you’ve got to think about how I feel when I have to sit in there and give statements and your mind is running because you’ve just been fricking raped, and you’re trying to say about a fight, about what happened that day and rape, plus like just everything, and you’re supposed to get everything correct, when like your mind is like – maybe one day you might find out……….[12]
[12] T335.
She flatly denied suggestions from defence counsel that she consented to sex with the accused, and flatly denied various suggestions that the events of the evening and in the bedroom happened differently. Throughout a lengthy cross examination on the topic of what happened in the bedroom the complainant remained consistent about what she said the accused had done to her and what had occurred straight afterwards, and again became upset and also angry when describing what he did to her.
In response to cross examination suggesting that she consented to sex with the accused, she said that she didn’t know him, wasn’t sexually attracted to him or aboriginal people generally,[13] and was not interested in him. She responded that wrongly accusing Mr Austin of having sex with her wouldn’t be of any benefit to her, apart from perhaps making her out to look like a slut, and it certainly would be unlikely to make her relationship with her partner any better. She denied she had to make anything up to explain away the injuries she had, repeating that she got the injuries from the women anyway, and she was not alleging she got them from the rape.
[13] Mr Austin is of aboriginal background.
The complainant was also extensively cross examined about aspects of her past, her life and her upbringing. She agreed that she had had a hard life, experiencing and witnessing domestic violence and having other problems over time. She agreed that there had been problems and issues involving her father who had been a member of a motorcycle group and who had in recent years been convicted and imprisoned for Murder. She also described problems with her mother, and how she had variously moved out or been placed into foster care at times in the course of her childhood. She said her life was now quite stable, with her partner and two step children. She had a child herself in 2007. She agreed that she was a regular drinker, sometimes of substantial quantities.

The complainant was taken through a series of events in her past, said to be relevant to her credit and her credibility generally. The court considered carefully the admissibility, appropriateness and relevance of a number of these topics, in light of their subject matter. The court delivered rulings concerning these topics during the course of the trial which it is unnecessary to repeat here.
Because of the very personal nature of some of the topics, particularly those involving hospitalization, I will describe them only in brief and general terms. I have however considered them carefully and in detail, and particularly given very careful consideration to each and every aspect of them that defence counsel has emphasized both in cross examination and her final address. I have also closely considered the tendered documentary records relating to the complainant.
Defence counsel took the complainant to several admissions to hospital over time, each of which occurred after various issues and troubles had occurred in the complainant’s life. Defence counsel took the complainant to the events discussed and raised in the hospital notes relating to those admissions. Later in the trial when defence counsel had obtained further medical records relating to some admissions the complainant was recalled and further cross examined about them.
She was asked about a hospitalization on 15 May 2009. The complainant said that those events had been precipitated by being depressed.[14] She said she did not remember some matters relating to a 2009 matter that were put to her by defence counsel.[15] She was asked about a March 2010 matter and said she could not remember.[16] She was asked about a hospitalization in April 2010. She said that those events occurred as she was upset over family issues, and mentioned her brother.[17] When recalled and asked more questions about this she said that worry over family issues and her brother was probably the reason for what happened occasioning that admission, although she now did not recall exactly why, and when it was put that she had told a police officer it was about her mother she said she could have been angry about her mother.[18] Other aspects of the history she gave were also put, which she variously answered. She denied some aspects of what she was recorded in hospital notes as saying, but said that she may still have been drunk when spoken to and could not necessarily remember. She agreed she did drink but not to the extent of binge drinking as apparently recorded in the notes. She denied she was the source of notations in the notes about ‘getting attention’ or ‘acting out’ to feel loved.[19] She was asked again about an admission in Adelaide in March 2010, and responded that she thought she was back in Whyalla at that time.[20] She was asked about another event in 2002 when she was a child, and the complainant said that at some stage back then she was not allowed to attend a party so drank some substances.[21] This is only a brief outline of the matters raised with her and arising from in the medical notes. I have however considered them all in detail.
[14] T287-288.
[15] For example see T289 T289.
[16] T678-681.
[17] T288.
[18] T654.
[19] T661.
[20] T302.
[21] T304-305.
She was asked whether she had during those hospital admissions denied some events that she had complained of at the age of 5 or 6. She replied that the events at that age had occurred, and if she denied or didn’t mention those events many years later it was probably because she was embarrassed about such events.[22]
[22] T296-297.
The complainant was asked in several contexts whether she had been homeless, eg after her Whyalla hospital admission. She said that whilst at some times she had been homeless in the sense that she didn’t have a home of her own, she had always had a place she could stay.
Defence counsel also raised with the complainant matters reflected in other tendered Families SA, CAMHS and Womens and Childrens Hospital materials.
The complainant was asked about attending the Woolshed, a rehabilitation facility, and she replied that although she did not have an alcohol problem she did attend because of her daughter, as the child’s father and grandmother did not like her drinking on the weekend. She was asked further questions about the woolshed, which she answered.
She was asked about a suggestion of inappropriate behaviour with her siblings at a much younger age, referring to aspects of ‘sexualised behaviour’ and responded that that was her mother’s perception rather than the true situation and that there was no such behaviour. She cited as an example a fully clothed picture she took of the children in “Charlies Angels” poses that she saw nothing wrong with, but that her mother did not approve of.[23]
[23] T298-301, T305-309.
The complainant was taken to events of 2002 involving where she, as a child, took another child’s bicycle. She admitted taking it, although she could not recall much further detail about those events, although she did agree she initially lied to police that she had found the bike.[24] The complainant was also taken to an event in 2002 whereby she got into a fight at Hungry Jack’s with another child. The complainant admitted she got into a fight, was arrested for it and pled guilty to assault.[25] The complainant was also taken to another event in 2002 where she had a physical altercation with her mother.[26] She was also taken to an incident put to her as occurring in August 2005 when she got into a fight at the Tea Tree Plaza shopping centre. The complainant admitted striking another person but said that was only after she was herself attacked.[27]
[24] T194-198.
[25] T388.
[26] T389-390.
[27] T390-393.
The complainant was asked about a further event in 2002 when she went to the basketball but subsequently stayed over at a friend’s house without permission. She said that she was scared she would be kicked out of the house and have to go back to Adelaide. She agreed she told her grandmother that she had been abducted, so her grandmother took her to the police and she initially told them that as well, before telling everyone the truth. She said “I just wanted to go to this party, and everyone was going to the party. I had no excuse, and I knew she was going to kick me out and I was going back to Adelaide, so I made up a stupid lie that someone was going to kill me and that’s why I couldn’t make it home, and I escaped. It’s the most dumbest thing, now I look back. I don’t know what was going through my head but yeah, that’s how stupid it was, over going to a party.[28]I take into account, without repeating, all the evidence given in relation to that topic.
[28] T202.
Indeed I take into account, without repeating, all the details put, asked, answered, and records tendered by the defence, in relation to the all the matters raised with the complainant, including the matters adverted to above. In particular I emphasise that while I have not repeated it all, I have carefully considered it all.
Other witnesses concerning the events of November 2010
The prosecution also called a person I will refer to as HS. He gave evidence that he knew the complainant and her partner who I will refer to as JT. As at November 2010 JT had been away for work for three months. HS’s job was to clean JT’s house. He recalled that on the day before the evening in question he did some cleaning there that day. He recalled later that evening that the complainant came over with Richard. His recollection was that she was looking for her handbag. They couldn’t find it, so he went back with them to her house and found it for her there. He saw a couple of people there, and at a later time he identified one of them from a police photo array.
In cross examination HS said he was there at a time he thought was before 9pm when there was a phone call whereby he thought the complainant temporarily broke up with JT. He said she came round to his place with Richard later and he said that he went back to the complainant’s house to look for her handbag at about between 10.30 and 11pm. He said that earlier in the day he recalled the complainant saying she was missing JT. He said that when he went over there in the evening the group were laughing and having a good time, although he had a bad gut feeling which is why he did not stay very long. Under cross examination he was asked about the complainant and agreed that the complainant drank most days but that whilst he had seen her intoxicated she always seemed to be fine.
The prosecution called MB, the complainant’s grandmother. She gave evidence that the complainant rang her at around 9am on 25 November 2010 and after speaking to the complainant picked her up from her next door neighbour’s house and took her to the police station. She said that the complainant appeared very untidy, and that while the complainant’s hair was normally pretty tidy, that morning it was messy, everywhere, and she looked like she had been through a hurricane. She said that the complainant was bruised from one end to the other, appeared to have been crying her heart out and when she saw her grandmother started crying again. She said that the complainant also cried on the way to the police station, and that the complainant also appeared very angry. While she could smell alcohol, the complainant did not appear drunk.
In cross examination MB was asked about the 2002 occasion when the complainant had rung several times and asked to be allowed to stay at a friend’s house, which MB had refused. She reiterated her recollection of those events, that the complainant had not come home that evening, and that the complainant had been scared to say where she was and therefore told a story about it that she should not have, which she repeated when MB took her to the police, although the complainant then admitted the story was untrue. She had no recall of an incident concerning a bicycle.
The prosecution called JT. He gave evidence that he had started a relationship with the complainant on 11 June 2010, and that he was indeed still in a relationship with her. He said that as at 23 November 2010 he had been in Darwin for three months working and that the complainant was minding his house in Head Street. He said they spoke regularly on the phone. He said that he was meant to have been back for his birthday but had not been able to. He said he told her he should be able to get back in the next couple of days. He was speaking to her on the phone when two other people he knew turned up at his house and spoke over the phone also, Richard and Archie Taylor. He said the conversation with the complainant did not end too well, in his words:
QHow did the phone conversation with (the complainant) end.
AWell, the phone conversation with me and (the complainant) didn’t end too well because she was a bit, bit angry with me that I wasn’t back for me birthday, so goes ‘All right, I’m going. I’ll see you later.’ And she just hung up the phone, so that was the last I spoke to her.
As a result JT said that he didn’t think they were still going out, but she rang him back a few days later, and to his mind the relationship recommenced. It is notable however to observe that there was no actual statement that there was a break up or that the relationship had ended. In cross examination JT recalled another phone conversation that evening whereby he spoke to both BB and the complainant when amongst other things he and the complainant discussed the upcoming wedding that they had been meant to attend in Port Lincoln. He said she was also angry that he could not make that event as it was all booked and he thought him not coming with her made her feel very small. She said that she would go to the wedding anyway. He said that while she did have a drink like everybody else, she did not drink large quantities. He said he was aware that she had difficulties with her mother over time.
Other evidence
There were a number of agreed facts.
It was agreed that on Thursday 25 November 2011 police seized clothing on the bed in the main bedroom depicted in photographs 6-10 of the booklet, in particular pink and green underwear, stockings/pantyhose and a black and grey striped shirt, and secured them.[29]
[29] Statement of agreed facts, exhibit P7.
It was agreed that the complainant attended the Whyalla Police Station and spoke to police at about 11.45am on Thursday 25 November 2010 and was flown to Adelaide to attend the Yarrow Place Rape and Sexual Assault Service at the Womens and Childrens Hospital. The next day she returned to Whyalla and was interviewed by Police on video, on 10 January 2011 signing a 9 page statement that had been compiled from a transcript of the video interview. On 7 June 2011 she signed a 3 page addendum statement.[30]
[30] Statement of agreed facts, exhibit P2.
It was agreed that the accused was arrested on 2 December 2010. On 22 December 2010 the complainant selected the accused from a series of 12 photographs as the person who had sexual intercourse with her on Thursday 25 November 2010. On 7 June 2011 HS selected the accused from a series of photographs as one of three aboriginal males he had seen in the complainant’s house on Wednesday evening 24 November 2010. It was further agreed that the accused had sexual intercourse with the complainant at the Head Street Whyalla property in the early hours of the morning of Thursday 25 November 2010.[31]
[31] Statement of agreed facts, exhibit P2.
It was further agreed that the complainant was examined by a doctor at Yarrow Place and his report formed part of the agreed facts. That report recorded multiple injuries to the legs, arms, abdomen, chest and face, which the doctor observed were consistent with the history of physical assault prior to the alleged sexual assault, and which I find are plainly consistent with the complainant’s evidence of being beaten up by the women who attended her house. The report documented a linear abrasion on the left inner thigh which showed no sign of healing, a friction type abrasion in the inner lip of the vagina, and an abrasion at the opening of the vaginal canal. The doctor concluded that these abrasions would have been caused by a combination of pressure and movement by an object rubbing over and injuring the genital tissues, which such object could include a penis, finger, tooth or other blunt object. It was agreed that these abrasions could have been caused by any degree of sexual intercourse, and not necessarily forceful or rough sexual intercourse. It was agreed that vaginal swabs, blood and urine samples were taken from the complainant and secured. The attached reports note the alcohol reading in the complainant’s blood and include a countback assessment to the time of the alleged offence, with a “best estimate” of about .255% at about the time of the alleged offence, taking the history given into account. The report indicated that at the estimated level, assuming that the complainant had considerable tolerance to alcohol, she may have appeared intoxicated although the signs may have been subtle and not necessarily obvious, and that impairment of faculties and disinhibited behaviour could have been effects at that level of intoxication. Indications of valium were also located, but the report concluded that the complainant was unlikely to have been under its influence at the time of the incident. It was agreed that DNA samples were taken from the accused upon his 2 December 2010 arrest. The DNA report found that the accused’s DNA was located in the complainant’s vagina.[32]
[32] Statement of agreed facts, exhibit P1.
The defence case
The accused did not give evidence. That was his legal right and I repeat there can be no adverse inference whatsoever arising from that.
The defence did call evidence from a medical practitioner who performed a psychiatric examination and assessment of the complainant when she was admitted to the Royal Adelaide Hospital in May 2009. At the time his role was as a senior psychiatric registrar at the RAH emergency department. A psychiatric registrar is a qualified doctor who is also a trainee working in the psychiatric field under supervision with a view to becoming a psychiatrist. The doctor had obtained medical and psychiatric qualifications from Bangalore, India, but whilst he said he had completed his Australian training he had not obtained formal national psychiatric registration in Australia at the time of the events, nor at the time of trial.
Whilst the doctor had no recollection of the complainant, he gave evidence with reference to notes taken at that time. Whilst I have examined this evidence in detail, to respect insofar as possible the complainant’s privacy in these reasons, I will refer to it in very general terms. I have considered it all, but I will not mention it all.
The doctor examined the records of the May 2009 admission, noting the history and the observations of those who saw her prior to his assessment. He noted a blood alcohol reading of .263, and a history given to other staff upon admission in relation to drinking and the events. He met and assessed the complainant some time after admission. He made no notes at the time, writing up the history given and his observations after the event. The ultimately noted history contains notations of several aspects of matters put by defence counsel to the complainant which she denied saying, for example “binge drinking”, and a denial of matters similar to what the complainant had indeed complained of when she was age 5-6. The complainant’s mother was however present throughout and he spoke to both of them, with the notes being made an hour or an hour and a half later. He noted a number of issues, and questions, and was of the view she was not at that time coping adequately with her stressors, and was using various strategies to deal with that. His view at the time of the examination was that she displayed 4 “Cluster B borderline personality traits”, 4 being insufficient to diagnose her with any disorder. He said that in any event he would need more than a single interview to come to any such diagnosis. The doctor was asked to assume a range of matters put by defence counsel, which I refer to in full but do not repeat, and on that basis said that such matters would strengthen a probable diagnosis of the relevant disorder. He said that if she did suffer from the disorder, such people can suffer perceptions of abandonment and loss with only a small trigger, and intense anger can follow, and they can react in a range of impulsive and unusual ways to that.
In cross examination the doctor agreed that intoxication can be a cause of many of the symptoms described, particularly noting a reading of .263, and that indeed he was not really prepared to give a diagnosis of disorder in court without seeing the patient again.
The defence tendered the subpoenaed records and notes relating to the matters dealt with by the doctor and also tendered records relating to the other background matters put to the complainant in cross examination. The defence tendered two documents signed by the accused, one from 2002 and one from 2003, as examples of the complainant’s signature,[33] to suggest she had in fact signed another document relating to a historical matter that she said was not hers.
[33] D7 and D8.
The defence tendered a statement of 4 further agreed facts, firstly that the top, skirt, bra and panties worn by the complainant at the time of the alleged incident and seized by police were not damaged. Secondly that the complainant’s father was taken into custody on a date in 2007, and sentenced on a date in 2009 for various enumerated charges including murder to a lengthy (specified) non parole period. Thirdly that police interviewed (two of the complainant’s siblings) at Whyalla police station in January 2002 about their relationship with their sister (the complainant). Fourthly that the file containing all relevant documentation re the complainant’s false report to the police in 2002 had been destroyed in accordance with Whyalla Police archiving procedure.

The defence tendered the photos of the complainant’s injuries,[34] and a bundle of what are described as “SAPOL materials”.[35] These contain details of the police record of the various police matters put to the complainant in cross examination, and a note purportedly signed by the complainant on 7 November 2011 concerning her April 2010 admission to Whyalla Hospital. The defence also tendered, as a purported previous inconsistent statement about the circumstances of the fight with the girls on the night in question, a note taken by a police officer of the complainant’s words which reads “group of girls – (name of girl) – Richards Girlfriend – knocked saying it was police. Opened up door – started abusing me 15 girls”.
[34] D4.
[35] D17.
The respective cases
Counsel for the prosecution submitted that the court should accept the complainant’s evidence as truthful and accurate and convict the accused of both offences.
He argued that the complainant had plainly had difficulties and challenges in her life, but was clearly a ‘fighter’ with great resilience and positive attitudes despite the significant adversities she had suffered. He argued that she withstood a difficult and very lengthy cross examination well, giving a consistent and reliable account of the events. He argued that any inconsistencies in the complainant’s evidence identified by the defence related to matters far removed from the events in question. He argued that she accepted she did not have a good memory of some other events in her past, or less important details about the night in question, for example in relation to her shoes, and she accepted she could have been wrong about or forgotten some of those details.
Counsel for the prosecution submitted that the complainant’s evidence had the ring of truth about it, and that it is inherently unlikely that the complainant would have consented to intercourse with the accused in the set of circumstances that existed. Counsel for the prosecution put that whilst it was clear she had been drinking, clearly the complainant would have had a high alcohol tolerance in light of her regular drinking habits. He emphasized that she had a boyfriend, was living at his house, missed him, and wouldn’t have wanted to jeopardize her relationship and living arrangements. He observed that they continued to speak on the phone after this event, did subsequently meet up in Port Lincoln albeit after the wedding, and are still together today.
He argued that at the time the accused re-entered the house the complainant was injured from the fight with the girls which the accused had not lifted a finger to stop, had already previously demanded that the accused leave with the others, and was expected back next door, so would scarcely have wanted to have sex with the accused, let alone have somehow arranged for him to return for it as suggested in some of the cross-examination.
He argued that her responses to cross examination, in particular the lengthy and repeated suggestions that she had invited the accused back to her house and even initiated sex with him, had the ring of truth to them.
He argued that everything located and observed subsequent to the event was consistent with the complainant’s version of events, for example her underwear and torn stockings as found on the bed, and the complainant’s disheveled appearance, distress and anger observed by her grandmother the next morning.
Counsel for the prosecution argued that if the court accepts the complainant’s evidence of the events beyond reasonable doubt, then it is plain that she did not consent and that the accused must have known that she did not consent, both to his presence in the house and to sexual intercourse with her.
Counsel for the prosecution submitted that the various events of 2002 and 2005 occurred when she was a child or at least much younger, all of which she owned up to, and should not cause the court not to accept her evidence now. He urged caution in relation to the evidence from the doctor in relation to the complainant’s examination and condition.
Counsel for the defence submitted that neither alleged offence had been proven beyond reasonable doubt.
She argued that there was in reality no support for the complainant’s version of events.
She submitted that the evidence showed that the complainant was upset and angry at the failure of her partner to return to Adelaide as expected or to be able to make the Port Lincoln wedding, and emphasized that both HS and JT had the impression from the phone calls that the complainant had ended her relationship, although not in so many words. She put that if that was so, the complainant may well have agreed for the accused to return to the house and may well have had consensual sex with him. She submitted there were inconsistencies in the evidence about the phone calls relating to this, and also about whether she was angry or only just upset at his failure to return. She referred to the complainant’s evidence that she was upset rather than angry, and evidence from HS and JT that their impression was that the complainant was angry.
Counsel for the defence emphasised the complainant’s antecedent history, particularly the 2002 false report to police, as affecting her credibility. She emphasized the complainant’s drinking and estimated level of intoxication at the time of the incident, and the possible disinhibiting effects of such intoxication.
Counsel for the defence emphasised the evidence she had called from the RAH concerning the complainant’s admission in May 2009. She observed that the complainant had been assessed at the time by the doctor as having some of the symptoms of a borderline personality disorder, and that with the additional information available, assuming the matters she had put to him, the doctor was at the point of in fact diagnosing the disorder. She emphasized the doctor’s evidence that people with such a disorder are very sensitive and small incidents can trigger perceptions of abandonment and possibly result in impulsive behaviour of various kinds.
Counsel for the defence submitted that the complainant’s evidence was problematic, and referred to a number of instances in the medical notes where notes of histories or her problems provided to medical staff in earlier years were she argued inconsistent over time, or with her evidence to this court.
Counsel for the defence argued there were some inconsistencies between the complainant’s evidence and HS’ evidence about earlier in the day, and the reason why she came round to his house in the evening, he saying it was about her handbag and she not saying that. She pointed to some inconsistency between the complainant’s recollection of the detail of the assault on her by the 15 aboriginal women, and previous statements.
She referred to other aspects of the complainant’s evidence that she said were cause for concern, for example that she said her clothes had been destroyed but elsewhere admitted that they were not actually ripped or damaged, apart from her panty hose.
She argued that her story was not credible in a number of ways, and in particular suggested that her evidence that he lay on the bed talking to her after was incongruous with the allegation of rape, but if it happened was also consistent with the accused appearing to think she had consented.
Assessment of evidence
The court has been assisted by both counsels’ comprehensive addresses in this matter, which I have considered in detail and give the fullest consideration to, and of which the above is only a brief summary.
The evidence that the complainant was living at the Head Street address, and the evidence of the injuries to the complainant was not disputed. A significant amount of evidence was also given by way of agreed facts. I note that no evidence suggested to amount to evidence of complaint was called.
The primary factual issue in this case is whether the complainant’s evidence as to the events of the evening in question should be accepted beyond reasonable doubt.
The court therefore scrutinized the complainant’s evidence with great care as it was given. It was subject to very extensive and comprehensive cross examination.
In making an assessment of that evidence I have also given the fullest consideration to everything tendered and submitted by the defence.
Evidence was given that the complainant had committed several offences, in particular an assault in 2005, and an assault, a false report and a larceny of a bike in 2002. In 2002 the complainant was 14 years old. This evidence was put forward by the defence for the purpose of adversely affecting the complainant’s credit. I have heard each matter raised with the complainant in cross examination, and her answers thereto. In relation to each matter she admitted her responsibility at the time, albeit not always immediately. I do not regard the two assaults as of much significance in relation to her credibility in this court, although the two dishonesty offences have I find more potential to affect her credibility, particularly a false report of a crime. I note that she was aged 14 at the time of these offences, and the false report was primarily made to her grandmother to try and avoid getting in trouble for going to a party without permission. It was her grandmother who took her to the police. She did not accuse any particular person of abducting her, then after speaking to her mother told the truth to all concerned, that she had made it up. I accept her explanation in this court for why she did what she did, and conclude in the final analysis that it does not significantly affect her credit in relation to her evidence in this court as to the alleged offences in question, however I do bear the matters in mind when assessing her credibility.
Evidence was given that the complainant was intoxicated at the time of the alleged offending against her. I have closely considered the effect that might have had on her, including the effects described in the expert evidence on that topic of potential disinhibition and the like, and the submission by defence counsel that it may have contributed to her agreeing to have consensual sex with the accused. I bear in mind that despite the relatively high reading, she was an experienced drinker and according to the expert evidence likely thereby to be more able to cope than otherwise, perhaps only exhibiting subtle indications of affectation.
Counsel for the defence noted in her final address that no more witnesses were called than those that were called, in particular Richard, BB or the next door neighbour were not called. Defence counsel referred to the complainant’s evidence at various stages that others could support her evidence in various respects. Those witnesses were in the main peripheral, although Richard was said to have attended the house with the accused during the earlier part of the evening and was present when the girls attacked the complainant, and the neighbour was where the complainant ran after the event. There may be any number of reasons why a witness is not called by the prosecution in a case, and in the absence of evidence as to why, it is important not to leap too quickly to speculation. They may be unwilling to get involved, have some other difficulties, not remember relevant details, be ill, absent, otherwise unavailable, assessed as unreliable by the prosecution, and so on. In the circumstances of this case, there was little or no dispute that the complainant was assaulted by the women earlier, and what happened earlier with BB was quite peripheral to events. No evidence of complaint was led, and no criticism was made of that decision nor was the complainant cross-examined about whatever complaint she may or may not have made when she went next door or when she was taken to the police station the next day, although as a matter of law and practice such evidence, were there any,[36] would have been the subject of the prosecution’s ongoing obligation of disclosure to the defence. The court may if it thinks appropriate draw an inference if a potentially important witness for the prosecution is not called, the inference being that they would not assist the prosecution case,[37] and should draw such inference where there appears to be no good reason for the prosecution to call a witness.[38] The court should consider all the circumstances of the case in determining whether there is any adverse inference that should be drawn. In all the circumstances of this case, I consider that no such inference should be drawn.
[36] About which I do not speculate.
[37] R v Nguyen (1998) 102 A Crim R 577 at 589.
[38] R v Heinze [2005] VSCA 124.
I have considered all the other matters submitted by defence counsel as relevant to the complainant’s credit generally and her credibility in relation to the evidence she gave alleging that the accused committed these two offences against her.
The complainant has clearly had challenges in her life, difficulties in her childhood, and a number of issues over time. The complainant however gave evidence about the events of the evening in a clear and forthright way. Her evidence about the evening in question, and particularly about what happened the moment things started to go very wrong, ie when 15 aboriginal girls arrived and violently assaulted her, was striking and believable. Some inconsistency about her recall of the detail of that assault was established, however that was in my view a result of either partial rather than inconsistent descriptions being given at various times, or the wholly understandable confusion that a person subject to a sustained and violent assault including many blows to the head would suffer. The documented injuries support her evidence about the assault. Some inconsistency about one or two aspects of the evening were also established, for example how many phone calls there were to her partner, the reason for going to someone else’s house earlier in the evening, and what shoes she was wearing or retrieving at the later stages of events. These issues were all entirely peripheral to the events concerning the charges against the accused and had comparatively little importance, and any such inconsistency is I find explicable in terms of memory inaccuracy about minor matters, the passage of time and the trauma of the physical assault suffered. I conclude that her responses and explanations in court were honest, and that none of the inconsistencies raised about the evening create a risk that her sworn evidence was in general, or on the topic of the alleged events basing the charges, unreliable.
The complainant’s evidence about the accused returning to her house in the early hours of the morning, entering without her consent, ignoring her protests, and forcing himself on her, was striking and believable. Whilst the complainant was calm for nearly all of her considerable time in the witness box over several days, she became visibly and audibly upset, sniffing and tearful, and angry, in a way that appeared palpably genuine, at the point of having to describe the accused forcing himself on her and the sex itself. At other times, when defence counsel repeatedly suggested she not only consented but initiated the sexual contact with the accused in a range of specified ways, she reacted with what appeared to be spontaneous and apparently genuine shock and anger. Her responses to these questions also had the ring of truth. Overall, she came across in the witness box as an honest witness telling the truth about what had happened to her.
Further, I consider it inherently unlikely that the complainant would have invited the accused to return later to her house as suggested to her in cross examination, an invitation that seemingly would have had to have been given whilst she was in the throes of screaming at the three men including the accused and the 15 aboriginal women who had beaten her to get out of the house. Even if the accused returned on his own account without being invited, I consider it inherently unlikely that the complainant who was plainly injured by that time, would have agreed to have sex with a man she had earlier told to leave, and who even if she had not told him to leave, had stood by with his mates for some 20 minutes not lifting a finger to help her while she was being beaten and robbed by 15 aboriginal women.
I have closely considered the inconsistencies raised by defence counsel and put to the complainant. I have closely considered the complainant’s responses to them. Where those inconsistencies are between medical or other records concerning the complainant over time and the complainant’s responses concerning those historical issues in court, I find that the complainant’s responses in court were honest reflections of her attitude about herself, her problems and conditions now, and when asked to recall, about her previous problems. Where a history given on one of those occasions differed to her current evidence, there are in my view a range of explanations likely. On some occasions the history was taken and noted in summary form some time after the event, or taken from the complainant and another person such as her mother, as indeed both occurred in the case of the RAH psychiatric registrar who gave evidence about the complainant’s 2009 admission, such that it is not necessarily a reliable verbatim statement by the complainant. Indeed little of the medical recording of histories even purports to be a verbatim account, rather it appears in abbreviated note or summary form. On occasions a history appears to have been taken when the complainant was significantly under the influence and the accuracy of it must be viewed in that light. Further, the complainant has no reason to recall the details of those admissions, and what were her particular problems or issues at those moments. She presented as a forthright and positive person who did not dwell on the past, and who was very determined to put any problems she may have in the past, which I find likely to include trying to forget about such matters. She has had the family and other problems reflected in the tendered records, and has a history of significant alcohol ingestion, which together I find may well also have contributed to an inaccurate memory concerning the matters raised with her arising from those records. In the final analysis, I find that the inconsistencies identified by defence counsel were answered honestly by the complainant, albeit not always accurately. In any event they were historical matters relating to her own situation that I find peripheral and incidental to the issues raised in this trial. In the final analysis I find that her answers were honest and the inconsistencies raised do not create a risk that her sworn evidence was in general, or on the topic of the alleged events basing the charges, unreliable.
I have closely considered the medical evidence called about the complainant. I find the doctor was qualified and competent to give such evidence. Whilst I accept that evidence, I find it somewhat limited in terms of the single consultation that occurred and the range of assumptions that the doctor was asked to accept. However I have taken it into account in the court’s assessment of the complainant, her credibility and her evidence.
I have taken into account everything submitted by defence counsel concerning the complainants evidence and credibility.
I have considered the totality of the evidence and all the circumstances in assessing the complainant’s credibility.
Whilst it is not corroboration in the legal sense, the damage to the complainant’s stockings, several small round holes, is consistent with them being forcibly torn off by hand, as alleged by the complainant. Her appearance and condition when seen by her grandmother in the morning, whilst neither complaint evidence or corroboration, is also consistent with what the complainant alleges.
In the final analysis, I formed the overwhelming impression that the complainant was an honest witness, telling the truth about the matters the subject of the two charges against the accused. I also consider that evidence to be accurate and reliable. She was consistent about it throughout her evidence, and no material inconsistencies were raised with her concerning it. She was clear and forthright about it. I accept beyond reasonable doubt that her evidence concerning the events the subject of the two charges was accurate.

I therefore turn to consider whether that evidence proves either of the offences charged against the accused.
Aggravated serious criminal trespass in a place of residence – count 1
In relation to count 1, that of aggravated serious criminal trespass in a place of residence, the prosecution must prove beyond reasonable doubt that the accused entered or remained in the complainant’s house, a place of residence, as a trespasser, intending to rape her, with the complainant being lawfully there, knowing she was there or being reckless as to whether anyone was there.
Firstly, the prosecution must prove that that the accused entered or remained in a place of residence. I find that the complainant’s evidence clearly establishes that he entered her house, which I find was a place of residence.
The second ingredient is that the accused did so intentionally as a trespasser. In other words, that he entered or remained in a place of residence without the consent of the occupier, he knew he did not have the consent of the occupier, and he entered or remained notwithstanding. I find based on the complainant’s evidence that the accused had been told to leave earlier in the evening after he had witnessed the complainant being assaulted by the aboriginal girls, and therefore knew he had no consent to return and enter the house without the complainant giving permission. Further, I find based on the evidence of the complainant that upon his entering the house by the rear door and entering the complainant’s bedroom, she said to him ‘what the fuck are you doing in my house? Like who the fuck – you can’t just walk in here’ and that at that point he plainly knew he was not permitted to remain but did so. The complainant was clearly lawfully there. I find proven that he entered and remained intentionally as a trespasser.
The third ingredient is that, at the time of his trespass, the accused intended to commit an offence, namely rape. I find, based on the complainant’s evidence that the accused immediately upon entry grabbed the complainant, threatened her and forcibly had intercourse with her over her screams for help and her objections prove that he was there for, and remained there for, the purpose of raping her. I find proven that at the time of his trespass the accused intended to rape the complainant.
The fourth ingredient is the ingredient of aggravation. The fourth ingredient is that another person was lawfully present in the place of residence and the accused knew of that person’s presence or was reckless about whether anyone was in the place. I find based on the complainant’s evidence of the course of the evening that the accused knew that the complainant would be there, as indeed his reason for going back there was for her. I find proven that the complainant was lawfully present and that the accused knew she was there.
I find each of these four elements proven beyond reasonable doubt.
Accordingly I find the prosecution has proven beyond reasonable doubt that the accused committed the offence of aggravated serious criminal trespass in a place of residence as particularized in count 1 of the information.
Rape – count 2
In relation to count 2, the prosecution must prove beyond reasonable doubt that the accused had penile vaginal sexual intercourse with the complainant without her consent, knowing or being recklessly indifferent to the fact that she was not consenting.
Firstly the prosecution must prove that the accused had penile sexual intercourse with the complainant. On the basis of the complainant’s evidence, the DNA evidence and the agreed facts, I find this element proven.
Secondly the prosecution must prove that the intercourse occurred without the complainant’s consent. On the basis of the complainant’s evidence, in all the surrounding circumstances as discussed, I find that she did not at any stage consent to any aspect of the sex the accused had with her. I find this element proven.[39]
[39] I am cognisant of section 34N of the Evidence Act. Section 34N(3) requires that a court must direct a jury, where applicable in the circumstances of the case, in terms of 34N(1). In the circumstances of this case it may be relevant, in relation to the point where the complainant stopped actively resisting the accused, to note that the section provides that the person is not to be regarded as having consented to the sexual activity the subject of the charge merely because—
Thirdly the prosecution must prove that the accused either knew that the accused was not consenting or was recklessly indifferent as to the lack of consent. On the basis of the complainant’s evidence, in particular that she objected to him being there and to what he started doing, that the accused told her to shut up and that he would stab her, and that she screamed “Steve. Fucking help me, I’m getting fucking raped”, and in all the preceding circumstances whereby the complainant had been bashed in the accused’s presence and he had been told to leave, the accused must have known that the complainant was not consenting to sex with him. I find however, on the basis of the complainant’s evidence, that at some stage during the course of having sex with the complainant she stopped resisting when she realized it was no use to resist, and at some point after that the accused became recklessly indifferent to whether she was consenting, possibly thinking that she might no longer be objecting. I make this finding on the basis of his conduct immediately after the event, when he sat there talking to her with a degree of normality, as if things might be OK, as recounted by the complainant. I find that despite the possibility of this state of mind, this element is established as the accused was recklessly indifferent within the meaning of section 47 of the Criminal Law Consolidation Act. I find that although at some point the complainant stopped actively resisting, he must have been aware of the possibility that she might still not be consenting to the act but decided to proceed regardless of that possibility; and also failed to take reasonable steps to ascertain whether the complainant was consenting before proceeding further. I find proven that the accused at the outset knew she was not consenting and at some stage became recklessly indifferent to whether she was consenting, and that this element is accordingly established
Accordingly I find proven beyond reasonable doubt that the accused raped the complainant as particularized in count 2 of the information.
Verdict
Count 1 – guilty
Count 2 - guilty

(a) the person did not say or do anything to indicate that he or she did not freely
and voluntarily agree to the sexual activity; or
(b) the person did not protest to or physically resist the sexual activity; or
(c) the person was not physically injured in the course of, or in connection with,

the sexual activity.