R v B, J
[2017] SADC 7
•25 January 2017
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v B, J
Criminal Trial by Judge Alone
[2017] SADC 7
Reasons for the Verdicts of His Honour Judge Slattery
25 January 2017
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY
Defendant charged with one count of rape and in the alternative, one count of unlawful sexual intercourse.
The court could not be satisfied that the elements of the charges as alleged on the Information had been proven beyond reasonable doubt.
Verdict:
Not guilty.
Juries Act s 7; Criminal Law Consolidation Act s 5, s 48, s 49(3); Evidence Act s 34CB, s 34M , referred to.
R v Hollsten [2015] SASCFC 178; Liberato v R (1985) 159 CLR 507; R v Lavery (2013) 116 SASR 242; R v Schulz [2016] SASCFC 150, considered.
R v B, J
[2017] SADC 7
The accused, JB has made an election pursuant to s7 of the Juries Act for a trial by a judge sitting without a jury. This verdict follows a trial by Judge alone;
The accused is charged on Information dated 3 November 2015 with the following offences:
INFORMATION
First Count
Statement of Offence
Rape (section 48 of the Criminal Law Consolidation Act 1935)
Particulars of Offence
JB between the 31st day of October 2009 and the 1st day of December 2009 at North Adelaide, engaged in sexual intercourse with DNC by inserting his penis into her vagina without her consent and knowing that she did not consent or being recklessly indifferent to the fact that she was not consenting.
Second Count
Statement of Offence
Unlawful Sexual Intercourse (section 49(3) of the Criminal Law Consolidation Act 1935)
Particulars of Offence
JB between the 31st day of October 2009 and the 1st day of December 2009 at North Adelaide, had sexual intercourse with DNC, a person under the age of 17 years, by inserting his penis into her vagina.
The second count is an alternative to the first count.
Although it is not necessary for me to set out every obvious and basic direction which might be given to a jury, I should remind myself of those directions which are essential for me to take into account in the determination of this matter. They are as follows:
1. An accused person is presumed innocent of all charges unless and until guilt on any particular charge has been proved beyond reasonable doubt.
2. The prosecution bears the burden of proving each particular charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of each offence.
3. The accused does not carry any onus of proof and to the extent that he might put forward a defence, he does not have to prove it.
4. It is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. If I am left with a reasonable doubt as to the establishment of any element of a charge, then I must give the accused the benefit of that doubt and find him not guilty of that charge.
5. Each of the counts on the Information concerns a separate offence. I must treat each separately and consider only the evidence relevant to that charge. If I were to find the accused guilty of one of the charges, on the evidence relevant to that charge alone, I must not use that evidence nor the fact of that finding to assist in the proof of any of the other charges. Nevertheless, such evidence may be relevant to the background or circumstances surrounding the events said by the prosecution to give rise to each of the offences charged.
6. The charges do not stand or fall together. If I were to be satisfied beyond reasonable doubt that the accused committed one of the offences charged, it does not follow that he also should be found guilty of the other offence charged. Depending on my findings on the evidence, I may find the accused not guilty of all offences charged or guilty of one or more of them.
7. I have reminded myself of the normal directions given to juries concerning the proper approach to assessing the various witnesses who gave their evidence, their credibility and reliability and the proper approach to drawing inferences of fact. In this case, the accused elected to give evidence. The accused was not obliged to give evidence. He had the right to remain silent in answer to the charge, leaving it to the prosecution to satisfy me of all of the ingredients of the charge. The accused elected to give evidence on oath and I am entitled to give him such credit as I think appropriate for adopting a course that he was not obliged to adopt.
8. In assessing his evidence and the weight to be given to it, I am to approach the task in exactly the same way as with any other witness. It is for me to decide what weight I am prepared to attach to the evidence of the accused in the same way as it is for any other witness.
9. Finally, I remind myself that it is not a question of preferring one version over any other. The sole task before me is to determine whether or not the prosecution has proved the elements of each charge considered separately and beyond reasonable doubt. If I am unable to say where the truth lay in respect of a charge, then it necessarily means that the prosecution has failed in respect of that charge.
I set out hereunder the basic elements of each of the charges. These elements must be proved by the prosecution beyond reasonable doubt for the defendant to be found guilty on either charge.
The elements of the offences
The elements of the offences in respect of both counts are as follows:
Count One: Rape (s 48 of the Criminal Law Consolidation Act 1935)
It must be proved by the prosecution beyond reasonable doubt that:-
1. The accused engaged in sexual intercourse with the complainant;
Sexual intercourse as defined in s 5 of the Criminal Law Consolidation Act is as follows:
sexual intercourse includes any activity (whether of a heterosexual or homosexual nature) consisting of or involving—
(a) penetration of a person's vagina, labia majora or anus by any part of the body of another person or by any object; or
(b) fellatio; or
(c) cunnilingus,
and includes a continuation of such activity;
2. The intercourse occurred, or continued, without the complainant’s consent;
Consent means a free and voluntary agreement to engage in the sexual activity with that person at that time.
3. The accused either knew that the complainant was not consenting or was recklessly indifferent as to the lack of consent.
A person is recklessly indifferent to the fact that another person does not consent to intercourse if he:
(a)is aware of the possibility that the other person might not be consenting 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 but fails to take reasonable steps to ascertain whether the other person does in fact 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 before deciding to proceed.
Count Two: Unlawful Sexual Intercourse (s 49(3) of the Criminal Law Consolidation Act 1935)
The elements of this alternative offence to be proved beyond reasonable doubt are as follows:
1.That sexual intercourse occurred; and
2.That sexual intercourse occurred with someone under the age of 17 years.
Sexual intercourse includes any activity consisting of or involving –
penetration of a person’s vagina, labia majora or anus by any part of the body of another person or by any object; or
fellatio;
and includes a continuation of such activity.
Video link evidence
The court granted leave on the application of the prosecution to lead evidence from the complainant, DNC, via video link. I do not draw any particular inference adverse to the accused as a result of this process being used, nor would I allow any such arrangements to influence the weight that I have placed upon the evidence of DNC or of any other witness in this trial.
Introduction
The complainant DNC is the daughter of KN. DNC was born on 20 February 1993. At the relevant time DNC and her sisters lived with their mother KN. The sister of KN, VB, is married to the accused. DNC is therefore the niece of the accused.
Background
There is only one date associated with the offences. That date is alleged to be November 2009 at which time DNC was 16 years of age. The accused was at that time 39 years of age.
The allegation is that on a Friday or Saturday evening in late November 2009, the accused transported the complainant to an underage disco at Roma Mitchell House on North Terrace, Adelaide. At the time he was driving his blue Toyota Land Cruiser. It is alleged that the accused collected DNC from her home and transported her to the underage disco. He picked up DNC from the disco at about 11:30pm that evening. He was to take her home.
It is alleged that the accused did not take DNC directly to her home but took a detour by travelling west from Morphett Street along War Memorial Drive to the area northwest of the River Café, doing a U-turn and then travelling east along War Memorial Drive and parking the vehicle.
It is alleged that the accused then said to DNC words to the effect “come on, get in the back and we will start.” DNC climbed into the back of the vehicle. The accused got into the middle seat of the vehicle, started to kiss the complainant, groped her breasts and removed her underwear. It is alleged that he then inserted his fingers into the vagina of DNC.
It is also alleged that the accused then removed his jeans and underwear and exposed his erect penis to her. He instructed DNC to lower herself onto him and when she did not move, he reached across, lifted her up from the waist and put her on top of him. The attempted intercourse was unsuccessful.
It is alleged that the accused then pushed DNC onto the left hand side or passenger side of the back seat and then attempted to have penile vaginal intercourse with her. The prosecution case is that DNC asked the accused to stop the attempt but these requests were ignored. This act is the subject of count 1 or alternatively count 2.
It is alleged that the accused then drove DNC to her home where the accused was met by the complainant’s mother, KN. At that time, which on the prosecution case would have been between 12:30 and 1:00am, KN met DNC at the front gate, waved to the accused and he then left in his motor vehicle.
The accused gave evidence: no burden of proof
The accused is not required to prove anything and no burden falls upon him. He was not required to give evidence and he could have chosen not to do so. He did give evidence. His evidence is entitled to be treated and assessed in the same way as any other witness called before the court but always in the context that he is not required to prove anything at all. I have proceeded to assess the evidence of he accused in the same way as I have assessed every other witness at trial.
Complaint – s 34M of the Evidence Act
The allegations in this matter arise from conduct alleged to have occurred in November 2009. Evidence was led in relation to a complaint allegedly made by DNC to her mother in 2014. I remind myself that, if accepted by me, this evidence is not admitted as to the truth of what was alleged; if it is admitted, then it would only be admitted as evidence that may go to the consistency of conduct on the part of the complainant and thus tending to enhance her credibility. I also remind myself that if the complaint is inconsistent with the occurrence of the conduct complained of then, depending on the level of inconsistency, the evidence has the capacity to detract from the complainant’s overall credibility. I remind myself that evidence of complaint must relate to the conduct on which a charge or charges are based before it can have any potential to enhance the complainant’s credibility.
The approach to these matters must not be unduly technical. It must be a common sense approach having regard to the fact that this is a matter of fact and degree. There is only one aspect of complaint evidence before me and therefore the question of elaboration does not arise in this instance.[1]
[1] cf R v Hollsten [2015] SASCFC 178.
Forensic disadvantage
I have taken into account the content and operation of s 34CB of the Evidence Act.
The period of time that has elapsed since the alleged offending and the commencement of this trial in my view has resulted in a significant forensic disadvantage to the accused. I will develop aspects in relation to this disadvantage later but one example relates to the evidence given by TS, the manager of the Cavern nightclub in the city at which the underage disco is alleged to have taken place. This trial commenced on Wednesday 9 November 2016. It was not until September 2016 that the police provided to the defence a statement from TS and the defendant then used whatever time was available to him to attempt to ascertain where he may have been at particular times. I will deal with this evidence later. I am satisfied that in the short time available to him the defendant did the best he could to gather any objectively available information concerning his whereabouts and the fruits of his effort raise a real possibility that on the night of the underage disco, the defendant may have been absent from Adelaide. The disadvantage suffered by the accused is that, depending upon the issues arising on the individual counts, someone may have been able to vouch for his movements or provide an alibi or he may have been able to find other relevant forensic evidence that might have been available. There may have been other issues that he may have been able to raise.
When discussing the whole of the evidence in this matter and when making the findings that I have made about the evidence, I have taken into account the forensic disadvantage suffered by the accused.
I am also required to scrutinise the evidence of the complainant with great care on that same basis. There was no independent support for the evidence of the complainant because of the effluxion of time. These complaints relate to charges concerning events that were alleged to have taken place in 2009, but for reasons which I develop hereunder, I am satisfied could only have taken place in 2008. Similarly, there is no independent support for the evidence of the complainant in relation to the events of 2008. A court siting without a jury is not obliged to give a warning that it is unsafe to convict an accused on the uncorroborated evidence of an alleged victim but the circumstances of this case mean that I have approached DNC’s evidence with a measure of caution. I have scrutinised it with care.
Legal principles
The legal principles that guide me in the process of my decision making are as follows:
1. The focus is and remains upon the findings that I make about each of the elements of the offences and whether they have been proved to my satisfaction beyond reasonable doubt;
2. It is not sufficient merely to, for example, reject the version of events of the accused;
3. It is not sufficient for me to merely prefer the version of events of the prosecution witnesses;
4. The proper test is when having regard to the evidence the prosecution witnesses separately and as a whole, the prosecution has proved each of the elements of the offences beyond reasonable doubt.[2] This exercise requires far more than for me to conduct an exercise in relative persuasiveness;[3]
5. It is necessary for me to assess the whole of the accused’s evidence and keep constantly in mind that if it raises a reasonable possibility, then that is a matter to be taken into account by me in making an assessment whether the prosecution has proved each of the elements of the offence beyond reasonable doubt; and
6. In order to be satisfied of proof beyond reasonable doubt, it is necessary for me to be satisfied that there is sufficient evidence to support a finding by me of guilt beyond reasonable doubt. This will include an assessment of the reliability of the evidence of the prosecution witnesses and whether it establishes the offence sufficiently to satisfy the criminal standard.
That is the way that I have proceeded in this matter.
[2] Liberato v R (1985) 159 CLR 507; R v Lavery (2013) 116 SASR 242.
[3] Lavery at [3].
The Evidence – a summary
I have now taken the opportunity to consider all of the evidence given in the trial as well as the addresses of counsel. The complainant gave evidence of events that occurred either seven or eight years ago and I have made an allowance for the age of the complainant and the elapse of time when assessing the evidence given by her.
For the reasons which I set out later, I have found the evidence of the complainant DNC to be inconsistent in some respects. I have accepted some parts of her evidence and although I have generally found that she attempted to be a truthful witness, I have doubts about the reliability of her evidence. I also found that the evidence given by DNC’s mother KN, whilst she attempted to be truthful, was not necessarily reliable or compelling. I have accepted the evidence given by RC as being truthful and credible but lacking in reliability in relation to the date of the underage disco. Otherwise I accept her evidence beyond a reasonable doubt. I accept the evidence of TS. I found her to be a compelling, truthful, reliable and credible witness. I also accept the evidence of NAB as being compelling, truthful, reliable and credible. I will accept her evidence beyond reasonable doubt. I found that VB attempted to give her evidence in a truthful way but it lacked reliability. I will develop those matters when discussing her evidence.
The accused gave evidence. I found his evidence was generally truthful and credible. On some occasions his evidence was not reliable but this was on minor issues and this evidence did not in any way adversely affect the overall reliability of the evidence of the accused. I will develop those matters hereunder.
The evidence of the charged offences
The complainant, DNC has a sister, B who is 19 years of age and a step-sister P who is 12 years of age. Her parents split up when she was roughly seven years of age. When the family split up, they were living at Mintabie and at that time, her family was very close with her mother’s sister, VB and her uncle JB, the accused. They were also close to her grandparents.
DNC said that she lived in Mintabie until she was about 11 years of age when the family moved to Melbourne with a person called A who is the deceased partner of her mother. He was the father of P. VB and the accused JB also moved to Melbourne a few days later and they lived there for about six months. They then returned to Adelaide.
Upon her return to Adelaide, DNC and her family lived with her grandparents for a few months and then moved to an address at Greenacres. At that stage she was not in close contact with the accused and VB but they slowly came back into their lives[4] and eventually caught up on a weekly basis.[5]
[4] T12.9-10.
[5] T12.14-15.
At the time that DNC was living at Greenacres with her mother, VB and the accused moved back to Mintabie but they then moved back to Adelaide and lived with the accused’s parents at Gulfview Heights.[6] DNC gave evidence that she moved with her mother to the Clearview address in about 2006 when she was about 12 or 13 years of age.[7] DNC thought that her relationship with VB and the accused changed slightly when they moved to Clearview because of the deterioration in her relationship with her own mother due to them arguing.[8] The accused and VB became more involved in her life when she moved to Clearview than they had been previously.[9] Her relationship with the accused changed at the time because of the fact that her father was not around and she said that she saw him as a father figure and the dominant male person in her life.[10]
[6] T12.19-31.
[7] T13.4.
[8] T13.10-15.
[9] T13.27-30.
[10] T13.38-14.2.
DNC gave evidence that sometime after 2006, the accused began to show her pornography on his mobile phone.[11] She said this occurred on a few occasions for a period of up to a year.[12] She alleged that the accused asked her whether she ever watched pornography herself.[13] She said that she had some discussions with the accused of a personal nature. She said she told him she was terrified (as a young girl) of having a partner and having sexual intercourse for the first time.[14] Her initial evidence was that the accused did not say much to her at all when she expressed this view[15] but she changed that evidence later.[16]
[11] T14.8-11.
[12] T14.13-15.
[13] T14.22.
[14] T14.33-35.
[15] T15.1-2.
[16] T17.29-34.
DNC gave evidence that she was not comfortable looking at pornography and was confused about her role with the accused. She then said that the topic of her fear about sexual intercourse came up in discussions with the accused roughly two years prior to the alleged sexual assault.[17] She then alleged that the accused told her that the next time she was in the shower she should finger herself to loosen herself up.[18] Then, different to earlier evidence, she said that the topic of sexual intercourse arose in a discussion that she had with the accused on the second occasion that she was shown pornography[19] and she thought that that was about six months to a year before the incident.[20] In cross-examination, DNC confirmed that the accused showed her pornography about a year prior to the incident[21] but he asked her on one occasion whether she watched pornography[22] and that she told him that she in fact did watch pornography.[23] She then said that all conversations about pornography and fingering herself occurred in the car.[24] It was only on the second conversation about pornography that she expressed her fear of having sexual intercourse, DNC then said that the initial conversation of her fear of having sexual intercourse occurred about two months before the accused showed her the pornographic video and he told her to finger herself[25] but that is something that she could not clearly recall.[26]
[17] T17.24-27.
[18] T17.29-34.
[19] T27.5-6.
[20] T27.9.
[21] T43.22.
[22] T43.36.
[23] T44.17.
[24] T44.20-32.
[25] T45.38.
[26] T46.4-5.
In her evidence DNC could not explain why she did not have a discussion with her mother about her fear of having sexual intercourse. She said that she did not talk about those things with her mother but that she looked up to the accused as a father figure.[27]
[27] T46.10-12.
It was then put to DNC in cross-examination that the only time she talked about sex with the accused was when she was 18 and she was complaining to him that she could not go out socially because of the strictness of her mother’s requirements. She then complained to the accused that she had not had sex yet. DNC did not deny that conversation but then said that in that discussion she was talking about consensual sex.[28] She could not be sure that the conversation had occurred when she was 18 years old.[29] There appeared to be no reason why DNC would say that she was only talking about consensual sex. I could discern nothing from her earlier evidence that she was talking about anything except consensual sex. She then said that she could not recall having the conversation about not being able to go out even though she was then 18 years old.[30] She then said that she could not recall saying that she had not even had sex yet.[31] This is inconsistent with the evidence that she gave earlier.[32]
[28] T46.26.
[29] T46.28.
[30] T46.38.
[31] T47.5.
[32] T46.26.
DNC agreed that the accused would come to her home on occasion in the absence of his wife VB.[33] At that time, VB had the care of her small child. She said that the accused would stay at their home talking for hours on end and may have had a drink with her mother.[34] DNC also said that on occasion she was at the accused’s home and he would be sitting on a couch and asked her to sit with him. She said when she was just with him, he would spread his legs and have her to sit between his legs on the couch and watch television.[35] This occurred sometime between a few months to a year prior to the alleged sexual assault and it occurred on one or two occasions.[36] She denied that she would sit near the accused of her own accord.[37]
[33] T15.31.
[34] T15.36-37.
[35] T16.9-12.
[36] T16.14-20.
[37] T48.2.
The complainant alleged that the accused, in his own home when it is likely that his own family would be present somewhere in the home or its environs, would ask her to sit between his spread legs on the couch whilst he was watching television. I consider that this is both peculiar and risky behaviour on his part.
DNC said that she spent time at the Gulfview Heights house[38] and on occasions stayed overnight.[39] She agreed that she either got to the Gulfview Heights home through her mother or there were occasions when she was in the car by herself with the accused after she had been at the Gulfview Heights house[40] and was returning to her home.
[38] T16.30.
[39] T16.35.
[40] T17.6.
DNC said that in 2009 she was attending a school in Adelaide. She had a close friend RC.[41] Towards the end of 2009, she and RC went to an underage disco at Roma Mitchell House underground on North Terrace.[42] She had never been there before.[43] She said that it was a ticketed event although she could not recall who had arranged the tickets.[44] DNC said that from memory, the event was on a Saturday night[45] however, she cannot recall who was playing or whether it was a DJ.[46] DNC was adamant that it was an underage event. She said that she was 16 at the time and therefore only underage people were there and there was no alcohol.[47] There was a big crowd there.[48] She remembers the name of the venue as being the Cavern Club.
[41] T19.15-16.
[42] T28.33.
[43] T19.35.
[44] T19.37-T20.1.
[45] T19.3.
[46] T20.6-7.
[47] T20, T21, T22.
[48] T20.8-11.
DNC said that she got a lift to the Cavern Club from the accused.[49] She recalled that he was on his way out to the Archer Hotel on O’Connell Street. He passed by her mother’s place at Clearview unannounced. Her mother was unable to take her to the disco so the accused offered to take her.[50] He drove her to the disco alone in his Toyota Land Cruiser.[51] She arrived at the disco at about 7.00pm and arranged for the accused to pick her up once the event had finished at about 10:45-11:00pm.[52]
[49] T20.17.
[50] T20.25-26; T30.33.
[51] T20.35-37.
[52] T21.4-8.
At the time she was wearing a tight black Supre skirt that came up to her mid-thigh, a dressy singlet with a zip up the back, black heels and a grey silky cardigan.[53] She met RC outside the event and stayed there until about 10:45 – 11.00pm. She said that she left with RC who had other arrangements to get home.[54] She said that at the time she left, the accused was parked nearby[55] and she said that she distinctly recalled waiting until she saw RC get into her mother’s car.[56]
[53] T21.10-14.
[54] T21.27-34.
[55] T21.37.
[56] T22.2-3.
DNC gave evidence that after leaving North Terrace, the accused drove to the Morphett Street bridge and down to Memorial Drive. He then turned left onto Memorial Drive.[57] This was not the normal way to go home and she asked where they were going. She alleges that the accused said “don’t worry, it’s all OK.”[58] DNC gave evidence that she thought they drove past the River Café, did a U-turn and were facing in a southeast direction on the strip of gravel on the northern verge of War Memorial Drive.[59] When the accused parked the car, DNC was not sure what they were doing there.[60]
[57] T22.10-18; T22.20-22.
[58] T22.29.
[59] T22.32-33.
[60] T22.24-26.
DNC gave evidence that after the accused stopped the car he said to her that she should hop into the back seat.[61] She said that she got into the back seat by climbing between the front passenger seats.[62] She did not say anything when she was asked to get into the back seat because she trusted the accused and thought that he would not do anything wrong.[63] When she asked the accused what was going on, he responded by saying “this will help you later on.”[64] She was confused and terrified. She gave evidence that the accused said to her that she should hop in the back seat and they will get started.[65] She did not question the accused about what he meant by that statement.[66] Later in cross-examination, she agreed that when the accused asked her to get into the back it came as something of a surprise to her but she did not say anything.[67] She was adamant that the seat in the rear of the vehicle was empty.[68]
[61] T20.31-33.
[62] T24.7-10.
[63] T24.13-15.
[64] T24.22-25.
[65] T27.1-2.
[66] T24.27-28.
[67] T51.24-27.
[68] T51.32-34.
When she got into the back passenger seat, the accused was sitting behind the driver’s seat. DNC was sitting behind the passenger seat. She gave evidence that he then used his right hand to push her skirt up to a point above her waist,[69] took her underwear off and then put his fingers into her vagina.[70] She alleges that he then asked her for sex[71] but she did not respond. DNC gave evidence that this conduct by the accused went on for about 2 minutes[72] and he started kissing her, first on the cheek and then on her mouth.[73] She said that she felt very uncomfortable and sore because of the roughness of his hand.[74] The kissing went on for over a minute and she tried to pull her head back because she did not want to be kissed by him.[75]
[69] T24.32-34.
[70] T25.3-6.
[71] T26.29.
[72] T25.8.
[73] T25.13-14.
[74] T25.16-19.
[75] T25.21-24.
DNC said that the accused then started to remove his jeans and underwear, exposed his erect penis and grabbed her from the waist and lifted on top of him. He attempted penile vaginal intercourse but was unsuccessful.[76] This went on for about 15 – 20 minutes.[77]
[76] T25.32-36.
[77] T25.38.
Following these unsuccessful attempts, the accused changed position. He spun DNC around so that they were in a reverse position. She was sitting on the seat with her back against the back of the seat and sitting in an upright position; he was facing her.[78] She said that she was on the passenger side of the seat. She was still wearing her top.[79] In cross-examination, she confirmed that when she was in that position and her legs were on the floor of the motor vehicle.[80]
[78] T28.1-4.
[79] T28.13.
[80] T52.8.
DNC gave evidence that the accused then continued to attempt to have sexual intercourse with her for 15 minutes.[81] This caused her real pain because he was unable to penetrate her vagina and he was using increasing force upon her. She said that it was becoming more and more painful and she asked the accused to stop.[82]
[81] T28.16-19.
[82] T28.21-26.
When she complained about the pain that she was suffering, she said that the accused became a little bit more aggressive and tilted her head away from him so that he was using a hand on her chest.[83] She also said that at this time she was slightly elevated so that her bottom was not touching the seat itself. The accused was holding her and her head was leant over the back of the seat.[84] He was holding her from her waist up[85] and was between her legs.[86]
[83] T28.38-T29.2.
[84] T29.5-8.
[85] T29.10-11.
[86] T29.14.
DNC gave evidence that he reached around to the centre console and retrieved lubricant and placed some of it on top of his penis and then continued to try to penetrate her.[87] DNC then gave evidence that the accused had placed a condom on his penis that he had obtained from his wallet. She thought his penis was circumcised. I note that it is an agreed fact that the penis of the accused is circumcised.
[87] T29.17-22.
DNC gave evidence that despite using the lubricant, the accused was unable to successfully have intercourse with her.[88] He tried for a further 10 minutes.[89] She said she told the accused that she was in pain because of the friction and pressure. He continued for a further 20-25 minutes approximately to attempt to have intercourse with her after he had put the lubricant on his penis. DNC said that he achieved penetration to about 3-4cm.[90] She gave evidence that at one stage whilst the accused was allegedly on top of her, a car was coming towards her and so the accused asked her to duck down which she was able to do.[91] She said that she slid her back down the seat and then went back into the same position when the car had passed.[92]
[88] T30.21-22.
[89] T30.25-27.
[90] T31.2-5; T31.8-10; T31.14.
[91] T37.26-29.
[92] T52.11-17.
DNC gave evidence that she wanted to clean up the blood that was on her inner thigh.[93] She was given a yellow towel to do so by the accused. She put her clothes back on, the accused put his clothes back on and thereafter there was no conversation between them. DNC said that she was distressed and crying and did not want to look at the accused.[94]
[93] T31.20-23.
[94] T31.25-26; T31.28-29; T31.36; T32.1-5; T32.8-9.
DNC said that once she had dressed herself, she got back into the front seat by getting out of the car and entering via the doors of the car.[95] She did not have any shoes on.[96] She confirmed this evidence in cross examination.[97] This is inconsistent with the content of her statement to the police.[98] She gave evidence that at the time she got back into the front seat of the car, she could see that the time was close to midnight.[99]
[95] T32.22-24.
[96] T32.30-31.
[97] T52.24-25.
[98] T66.8-21.
[99] T53.31.
On the drive back from Memorial Drive to her home, she turned the volume of the radio up and there was no conversation. She was looking out the window.[100] DNC gave evidence that she was very upset, angry and could not believe what had happened. She thought she was in shock.[101] She gave evidence that when they arrived at her home, the accused said to her: “don’t ever tell anybody that this happened”.[102] However later in cross examination she could not recall the exact words that he used[103] and she recalled that she spoke in a soft voice.
[100] T33.2-11; T33.14-18.
[101] T33.22-23.
[102] T33.32-34.1.
[103] T54.20-32.
She only saw her mother briefly that night and had a short conversation with her. DNC gave evidence that she was a mess when she got home; she had been crying on the journey, and her face was puffy and red.[104] Her mother enquired what was wrong and she said she had an argument with RC.[105] She said she did not tell her mother the truth because she was in shock and she was upset.[106] She went inside the house and went upstairs into her bedroom. She was unable to go to the toilet because of the pain[107] and she could only sleep by lying on her back with her legs apart and up.[108]
[104] T34.10-11.
[105] T34.14-15.
[106] T55.19-22.
[107] T34.21-22.
[108] T34.26-32.
Several years later she informed her mother of what she alleged to have happened.[109] That conversation occurred in about May 2014. She was sitting with her mother in their backyard at an outdoor table. Her mother mentioned something associated with D, her partner at the time, and the accused who was his friend and made a comment about the accused. She said to her mother words to this effect: “look you really just don’t know how bad he is.”[110] The conversation continued and her mother asked if something had happened and she said yes. Eventually her mother asked whether they had sex and DNC said yes.[111]
[109] T35.6-8.
[110] T35.14-21.
[111] T35.14-21; T35.23-25; T35.27-28.
DNC told her mother that it occurred on the night when she was out with RC at an underage disco. She said to her mother words to the effect: “do you remember how upset I was and I had said to you that it was because I had an argument with RC.” Her mother agreed. DNC told her mother that that was not the reason.[112] KN gave evidence. She did not give any evidence of being reminded about a fight with RC at the time of the complaint. DNC said she had not seen the accused and her aunty VB since the time of leaving that home in 2013 after her mother’s partner D moved in.[113] She agreed that she was angry with the accused for introducing D into her family. She thinks that it tore apart any relationship that she had with her mother and that she also had concerns about her younger sister.[114]
[112] T36.2-7.
[113] T68.28-34.
[114] T69.25-28.
In her evidence, DNC said she had very little contact with the accused after the incident. She would see him only when he came to her mother’s home or she would go to her grandparents’ home at Gulfview Heights.[115] She said she felt completely uncomfortable and disgusting in a way. She avoided the accused as best she could and she actively tried to avoid any contact with him.[116]
[115] T36.21-22.
[116] T36.25-27.
In cross examination DNC confirmed that she avoided having any car travel with the accused following the alleged incident. However, she then said she continued getting lifts from the accused before she got her driver’s licence. He took her to and from school.[117] She was asked whether she would text the accused and asked him to come pick her up. She said she was not 100% sure.[118] She agreed that the accused taught her to drive a manual car.[119]
[117] T42.26-31.
[118] T42.38.
[119] T43.9.
In cross examination, DNC confirmed that she did not want to have sex with the accused on the night in question, she asked him to stop at least twice and that she looked up to him and trusted him.[120]
[120] T37.34-38.16.
When taken to the events of the particular night, DNC said that she was sure the disco occurred in November 2009. She did not think it could have been 2008 but she was not sure.[121] She agreed that if the records show that there was only one disco in 2008 and not one in 2009 then it might have been in 2008.[122]
[121] T39.13-19.
[122] T39.24.
DNC was asked about an attic that was built into the Clearview home after December 2009. She said that when the attic conversion was done, she moved into an upstairs bedroom but prior to that she had a room of her own downstairs.[123] She recalls that the accused built a cubby house at the Clearview home about a year prior to the attic conversion.[124] The attic conversion was built two to three years after they moved to Clearview. She recalls that the accused’s son was born in 2008. She got on well with the accused’s daughter, NAB and described their relationship as being almost like sisters.[125] After the alleged offences, she agreed that she continued to see the accused and his wife until she moved out of her mother’s home in 2013. She denied ever greeting him with a hug and a kiss.[126] She did agree that sometimes she had arguments with her mother and the accused would come to the home and try to resolve these arguments. Many times these arguments were about whether she was permitted to go out on her own.[127]
[123] T40.12-20.
[124] T40.34-41.4.
[125] T42.6-13.
[126] T47.9-12.
[127] T48.5-11.
Her memory was that RC invited her to attend the disco[128] but the evidence of RC[129] was that the tickets for the disco were arranged by DNC. Her mother agreed to allow her to attend the underage disco because of those arrangements.[130] She said she knew it ended somewhere around 11.30pm and she did not recall there being a lockdown before the event finished.[131]
[128] T48.16-21.
[129] T102.24-25.
[130] T48.23-27.
[131] T48.27-49.7.
In cross examination, DNC agreed that after the alleged offences, she stayed in contact with the accused’s family until 2013. She went for sleepovers at their home and she stayed in the spare room or in NAB’s bedroom.[132] She continued to attend birthdays and other functions at their home. She had a party for her 17th birthday at their home and she requested that it be held there.[133]
[132] T55.28-33.
[133] T56.1-24.
DNC was then shown a bundle of photographs (Exhibit D3). These identify various family gatherings.[134] I have reviewed the photographs in Exhibit D3 and they are obviously photographs of family occasions held largely at the Gulfview Heights home. In many of the photographs DNC is pictured with the accused and, also in many of them is the accused’s daughter NAB. There is no sign in any of the photographs of any obvious discomfort in the visage of DNC about being in the presence of the accused.
[134] T57.6.
DNC confirmed she had a boyfriend called IS following the incident and he was the cause of friction between herself and her mother. Her mother would not allow her to see him as often as she wanted.[135] DNC also agreed that she moved in with the accused and VB in September 2011 and lived with them for three months.[136] This was after her mother kicked her out of home. She stayed in the spare room.[137] She also agreed that during the time that she stayed at the Gulfview Heights address, she would get lifts from the accused daily, usually to school. She agreed she would ask the accused for lifts.[138] She said that as a result on many occasions she was alone in the car with the accused and she was reasonably comfortable with that.[139]
[135] T60.19-22.
[136] T60.27.
[137] T60.35-38.
[138] T61.3-5.
[139] T61.8-10.
DNC was then shown graduation photographs (Exhibit D6). She agreed that she invited the accused to her year 12 graduation, some two years after the alleged event.[140] She was asked to confirm, as per the photographs, that she was apparently comfortable in the company of the accused. DNC then said that after the incident she had decided she was never going to speak of the incident and that she had moved on.[141] She was then asked when she made that decision and she then said that she had made that decision on the night of the alleged offences.[142] She confirmed she saw the accused at a Croatian Festival at the Croatian Sports Centre (the date of which was not provided) but denied running up and hugging him.[143]
[140] T65.27.
[141] T65.35-38.
[142] T66.29.
[143] T67.3.
DNC was then shown a bundle of text messages (Exhibit D4 and D5) dated between 1 May 2011 and 6 February 2013. Initially she said she could not recall the text messages but she later agreed that she had sent those that could be identified as hers. The accused was the recipient and sender of some of the text messages.[144] She also agreed that some were sent from her phone and some were sent when she was living in the home of the accused as well as after she had moved back to her mother’s home.[145]
[144] T62.3-10.
[145] T63.36-64.2.
As I put to counsel during the addresses, there are a number of quite obvious features of these text messages. The first is that they reflect a comfortable relationship between the accused and DNC. There is no sign of any strain in the relationship when the text messages are viewed separately or together. The second feature is that the text messages evidence what appears to be a trusting or a close relationship between the accused and DNC. The third is that the content of the messages disclose some matters that would cause some discomfort in the mind of the reasonable objective observer. For example, on 26 June 2011 there was an exchange of text messages between the accused and DNC starting at 1.41am. After earlier text messages from DNC, the accused sent to DNC the following text message:-
Sorry U didn’t. I hope we can have a good time next time we go out. We’ll go out without your mum OK I love you xx
DNC responded in the following text:-
Yeah that sounds better I love you to
There are other similar text message exchanges between the accused and DNC. These exchanges occur either two or three years after the alleged events. They do not suggest any level of discomfort or issues between the accused and DNC. To the contrary, it suggests a close relationship that is not uncomfortable.
In re-examination, DNC confirmed that when many of these text messages were sent she was with NAB, the accused’s daughter.[146] She was living with the accused and his wife and her cousin at the time.[147]
[146] T71.21.
[147] T71.3-12.
The complainant’s mother KN, gave evidence. She did not agree with the evidence of DNC that she had an argumentative relationship with her.[148]
[148] cf T73 and T13.10-15.
KN gave evidence of a complaint being made to her by DNC in April 2014. It came up in the context of a discussion about her partner, D, and the accused. The context was that she was concerned about access being taken to pornography and explicit sexual dating sites and that the accused had said to her that it was no big deal.[149] KN said that it was then that DNC said to her these words: “mum, (the accused) is sick, he is really sick.” When asked to explain, DNC said: “he is really sick mum, I can’t tell you until he’s dead and buried one day.” DNC then told her that the accused had done more than touch her.[150] DNC said that it was more than that and she then asked DNC: “did he stick his dick into you?” DNC replied: “yes”.[151] DNC then told KN that she had been shown pornography on the accused’s phone, that he told her she should be fingering herself and this would loosen her up[152] and that this happened on the night she went to an underage disco with RC. She told her mother that it happened at War Memorial Drive. She said that DNC said he picked her up from the disco, he stopped the car, started kissing her, fingering her and they ended up in the backseat. In her complaint DNC said that he had used a condom and lubricant from the centre console of the car.
[149] T75.7-25.
[150] T75.31-76.5.
[151] T76 generally.
[152] T76.17-22.
KN was cross examined and asked whether DNC had asked her if she remembered the day of the disco, that she was upset and had said she had an argument with RC. KN said that did not occur.[153] She could not recall what time of year that event occurred nor the age of DNC at the time.[154] She disagreed with DNC’s evidence that there were arguments about her going out. Her memory of the incident was that she thought it occurred in 2010[155] and that DNC was in year 10. She recalls that the arrangements were for DNC to meet RC at the disco, that the accused gave her a lift in his car. She could recall the outfit that DNC wore apart from her top. KC said that DNC went out at about 7.00pm and returned at about 12.00 – 12.30am. The accused pulled his car onto the driveway, she unlocked the gates for DNC and could see that DNC was upset and had been teary and was crying.[156] KN then said that after that night DNC became reserved, angry and did not take too much interest in her schooling.[157] She also confirmed that DNC moved in with the accused and his wife after the alleged incident but thought it was only for two weeks.
[153] T92-93.17.
[154] T93.31-94.10.
[155] T77.26.
[156] T76.2-23.
[157] T80.6-8.
KN was then cross examined about the attic conversion. She was shown Exhibit D7, a bundle of Google street pictures which showed the attic conversion before and after.[158] KN agreed that the pictures disclose that the attic conversion was not completed before December 2009.[159]
[158] T91.
[159] T91.14-92.5.
She gave evidence that at some stage the accused called her sister who then lived in Cairns regarding her relationship with D and concerning her mental health.[160] Before the relationship with D ended, she said that the accused had called mental health services for her.[161]
[160] T86.31.
[161] T88.7.
The complainant’s friend, RC gave evidence. Her recollection was that the evening at the Cavern Club was in 2009 when they were both in year 10 although she cannot recall the name of the venue. She remembers that DNC organised the tickets. She knew that it was an underage disco and there was no alcohol on the premises. She gave evidence that she left the venue at the same time as DNC which was some time before midnight.[162] She said that she saw DNC at school on the following Monday and as far as she was concerned everything was normal.[163]
[162] T103.
[163] T104.
TS was the proprietor of the Cavern Club. She gave evidence before the court. She said that the club usually opened between 5.00pm and midnight and her events were usually open to all ages. The club did have some underage events which followed the strict guidelines of liquor licencing. She said that it was necessary to cover up the alcohol, for there to be security, for metal detectors to be used and for the venue to inform the police on Hindley Street.[164] There was a lockdown of the event so that children could not leave before 11.30pm unless a parent had come to pick them up.[165]
[164] T109.32-35.
[165] T109.37-38.
She was shown Exhibit P13 which was a document recording events booked for the club. There was no underage events in November 2009 nor were there any DJ only events.[166] The only solely DJ events were underage events.[167] There were underage events on Friday 8 August and Friday 21 November 2008.[168] There was another one in July 2010[169] but there were none in 2009.
[166] T111.18-23.
[167] T112.5.
[168] T112.38-113.3.
[169] T113.21.
The accused gave evidence. He has known DNC since she was very young; he is her uncle.[170] He thought that he had a good relationship with DNC and that she felt comfortable with him.[171] He said that his only conversation with DNC about sex was when she was 18 years of age when she said to him words to the effect of: “I am 18 years old… and I still haven’t had sex yet”. At that time she was angry with her mother for not letting her go out.[172] He said that he was embarrassed about what she had said and suggested to her that she get a job and move out of home for her own privacy.[173]
[170] T118.34-38.
[171] T119.3.
[172] T119.18-23.
[173] T119.32-34.
He denied the allegation about the night of the underage disco. He said that he had been with DNC many times in the car and she had never seemed reluctant to get in the car with him.[174] He said that he bought his Land Cruiser in 1999 or 2000 and also has a truck and a utility vehicle. He said he uses the truck for work and the utility vehicle for transport to work.[175] He said that usually his wife drove the Land Cruiser. Once their younger son, DB was born, she typically used the Land Cruiser. He said that a booster seat was kept in the Land Cruiser until DB was about five or six years of age.[176] He said that the booster seat was very rarely removed from the Land Cruiser.
[174] T120.2-25.
[175] T120-121.
[176] T121.21- T122.7.
The accused gave evidence that in November 2008 he would see DNC, her mother and their family perhaps fortnightly during the winter time. He said that in summer he was generally always working on weekends.[177] In 2008 he was working for a builder. He has his invoices for that period. The accused said that although he has no clear independent memory, he thinks that he went to the family shack at Ardrossan on 21 November 2008. That is because there is no relevant invoice for work done on that date and in that week of 2008 until the following week.[178] He said that he thinks that he drove to Ardrossan after finishing work on Friday to do some work at the shack on Saturday and he drove back on Saturday evening. Exhibit D14 is a summary of invoices rendered by the accused’s business. There is a series of invoices delivered for work done in the week of 14 November 2008 and the next invoices are dated 28 November 2008. However he did work on 21 November 2008 at a site at Cashel Street, Pasadena. He had done work also on 19 November and 20 November at Munno Parra West and Virginia. In the usual course, he would use Friday afternoons to do his billings for the week so that he could maintain cash flow. However there were no bills rendered in the week ending 21 November 2008. The account for Cashel Street Pasadena was rendered on 28 November 2008. This indicates to the accused that he did not follow his usual practice of doing the billings on a Friday afternoon but did something else. He said that this is why he thinks that it is a reasonable possibility that he went to Ardrossan at that time.
[177] T122-126.
[178] T124.19-21.
He also says that there is some other confirmatory evidence that this was the case. He has a Westpac banking account. He made a withdrawal from the BP service station at Port Wakefield on Saturday 22 November 2008.[179] The copies of the Westpac Bank account statements are Exhibit D16. They show a withdrawal from the BP on that day at Port Wakefield. The relevant entry on page 9 of 10 of the bank statements show a withdrawal on 22 November. The date on the bank statement is 24 November. It is an amount which he thinks would have been for a purchase of fuel.
[179] T126.25-26.
The accused said that in 2008 and 2009 his relationship with DNC and her mother was good.[180] At that time he was working long hours on foundations for a school gymnasium at Elizabeth according to his invoices.[181] He gave evidence that in 2010 DNC had her 17th birthday party at his house.[182] He thinks it is most likely that it was her idea.
[180] T127.16.
[181] T127.21-25.
[182] T127.31-37.
He gave evidence that he helped DNC learn to drive her first manual car, at her request. He gave her two lessons. One was in the company of DNC’s sister and NAB and the second with just the two of them in the car.[183] He recalls that DNC often stayed over at their home during this time. He did not identify that she had become more anxious and angry.[184] He said that his work hours were very busy, he would come home, lie down and watch television. He said that DNC would sometimes lie with him or just sit on the couch. He would never ask her to sit with him.[185]
[183] T128.12-20.
[184] T128.26-34.
[185] T129.1-10.
He gave evidence that DNC had many fights with her mother. He understood she wanted more freedom than her mother was prepared to give her.[186] He got involved with those arguments and on a number of occasions went to the Clearview home in an attempt to calm things down.[187] He said that he would get phone calls on a weekly to fortnightly basis about DNC and her mother fighting; this was around the time when DNC was 17 years of age.[188] He said that his relationship with DNC was very good and when she was 18 she would invite him to things such as her graduation and to accompany her to the city.[189]
[186] T129.13-16.
[187] T129.18-27.
[188] T129.29-33.
[189] T130.2-8.
He thought that DNC stayed at he and KN’s home for about three to six months. He gave evidence that he would drive her to school every morning during this period.[190] He said that at the Croatian Sport Centre function DNC came up to him hugged him and said that she missed him although the date of this event is unknown.[191]
[190] T130.16-21.
[191] T131.2-3.
The accused said that he knew D from Mintabie and that he had moved to Melbourne. D rang him and told him that he wanted to move to Adelaide and he helped D do this by sending some money to him and said that he would give him some work. These are the circumstances in which D came to know KN.
D commenced a relationship with KN. The accused said that this relationship was good at the start but soon deteriorated. The accused said that there were a lot of arguments between D and KN and that both D and KN confided in him about the issues that they were experiencing.[192] The accused recalls a conversation with KN about her being concerned about D accessing pornography on his phone.[193] He said that KN raised with him the possibility whether D was tracking her phone. She then got angry and suggested that the accused was also involved in D tracking her on the phone.[194]
[192] T133.28-T134.14.
[193] T134.32-33.
[194] T135.2-9.
The accused gave evidence that he became so concerned that he rang KN’s sister in Cairns soon after D and KN had split up. He had removed D from KN’s home. He went back to the home and KN was making suicidal comments.[195] He asked KN’s sister to come to Adelaide from Cairns to deal with KN but she was too busy. It was she who called the government mental health services to come and collect KN.[196]
[195] T135.20-32.
[196] T135.20-T136.4.
There was some troubling aspects about the evidence given by the accused in cross-examination. For example, he said that he would only collect or pick up DNC during the day to come to their house or to take her home.[197] However this evidence was not supported by his wife, VB.[198] He also said that he only went to the Archer Hotel on an occasion or two. That evidence was not supported by the context of the email exchanges to be found in Exhibit D4 and Exhibit D5.
[197] T138.8-10.
[198] T161.30-31.
He was then asked a rather innocuous question about how far the Archer Hotel was from the Gulfview Heights home. He said that he was not sure but it was probably about five kilometres.[199] This is in the context where, as is obvious from the content of Exhibit D15, that the accused was working all over Adelaide. The distance between the Archer Hotel and Gulfview Heights was checked and was found to be more likely as 20 kilometres. He said that he could not be sure about that.[200] He did maintain that the booster seat for his infant son DB was in the middle row of seats in the Land Cruiser on the passenger side[201] and that VB was the main transporter of DB.[202]
[199] T146.7-49.
[200] T147.14.
[201] T148.10-13.
[202] T148.21.
VB gave evidence. She is the wife of the accused. She said that when she moved to Gulfview Heights she was not on speaking terms with KN. That changed after the birth of DB.[203]
[203] T152.10-24.
VB said that the accused was a father figure for DNC[204] and she did not ever notice a change in that relationship at any time or discern anything which would indicate DNC had become uncomfortable with the accused or was avoiding him.[205] She recalls DNC coming to stay with them for a few months after having arguments with her mother.[206] She also confirmed that the accused would go to Ardrossan alone for work purposes, to clean the yard or to go fishing. She said that he normally left Saturday morning or thereabouts.[207]
[204] T153.6.
[205] T153.14-19.
[206] T155.5.
[207] T155.35-T156.5.
VB said that it was she who usually used the Land Cruiser to transport DB. She said that the booster seat in the Land Cruiser was behind the passenger seat.[208] She said that it was always left in that car because it was bulky and had straps that had to be secured by bolts to the floor of the vehicle.[209] She also recalled that when DNC and NAB were 18 years and older, they would often call and ask for a lift home from town.[210] This contradicts the evidence of the accused at T138.8-10.
[208] T156.24-25.
[209] T156.13-T157.3.
[210] T161.30-31.
NAB gave evidence. She said that she thought the last time she saw her cousin DNC was around 2013.[211] She thought that DNC had a very close relationship with the accused, her father[212] and she did not notice any change in their relationship between 2006 and their graduation in 2011. She also did not notice DNC get more angry or anxious in that period.[213] She said that she may not have gone to DNC’s graduation but she was not sure.
[211] T166.36-37.
[212] T168.
[213] T169.4.
She went out to town with DNC and on occasions got her father to pick her up from town. She was unaware of DNC being picked up by her father in the city without her being present.[214]
[214] T173.
Findings available on the evidence
I find that DNC and RC attended an event at the Cavern Club on North Terrace. I am satisfied on the evidence that this event occurred in November 2008. This is because I am satisfied from the evidence, particularly the evidence given by RC that this was an underage event and I am satisfied that the only underage event in a November occurred in November 2008. The evidence of a number of witnesses was that this was specifically was an underage event. RC gave evidence that the tickets were obtained by DNC (contrary to the evidence given by DNC) but she also clearly remembers that there was no alcohol served. She recalls it specifically as being an underage event. An explicit inference arises from her evidence that she would not have been permitted to go to the event if it had been an underage event. RC was collected by her mother at or about 11.30pm. I also accept that the event was a lockdown style event and that unless the attendees were escorted out of the event by their parents, they could not leave until that time. I am also satisfied that a clear inference arises that DNC’s mother KN would not have allowed her to have attended the event unless it was an underage event. The evidence on that topic is less explicit however that inference arises from the rules set by KN for the socialising of DNC. It became clear to me from all of the evidence that KN exercised strict control on DNC’s socialising and set very specific rules in relation to the time at which she was required to return home. I am therefore satisfied that this was a once off event which was an underage event.
RC was unclear as to when the events took place although she first thought that it was in 2009 when both she and DNC were in year 10. For the reasons that I have already indicated, I am not satisfied that the event took place in 2009 and I am satisfied that the event took place in 2008. I rely upon the evidence of TS and the content of Exhibit P13, the schedule of events. Exhibit P13 discloses that an underage event was conducted at the Cavern Club on 21 November 2008. Both DNC and RC recalled that the event took place late in the year. I accept that the event took place on that date and I accept that both DNC and RC attended the event on that date.
Having established that date, I turn then to the allegations of what took place in the motor vehicle. I will leave aside for the moment any consideration of the arguments of the accused that it is a reasonable possibility that he was not in Adelaide on the evening of 21 November 2008.
I have set out in detail earlier in these reasons the evidence given by DNC concerning these events. I have identified the inconsistency between the police statement given by DNC about her climbing from the middle seat back to the passenger seat after the event. In my opinion that is a matter that only goes to credibility. I will approach the matter on that basis.
It is alleged by DNC that on two occasions the accused showed to her pornography on his phone. There is some inconsistency in the evidence because after initially giving evidence of her abhorrence of that suggestion, DNC later gave evidence that when she asked whether she wanted to access that pornography she said that she did. The evidence of DNC also was that this discussion about pornography was associated with her suggestion of having a fear of sexual intercourse for the first time.[215] Later the evidence of DNC was that those two occasions where there was a discussion of pornography occurred in the accused’s motor vehicle. That is the place where she was allegedly shown the pornography. Her evidence was that this occurred between a few months to a year before the alleged attack upon her. However, inconsistent with that evidence, DNC then said shortly afterwards[216] that the conversation about pornography occurred some two years prior to the incident, the subject of these charges. Also, the second occasion in which pornography was discussed was allegedly the continuation of a previous discussion. If that be the case, the version of events put by DNC was that these conversations took place some 18 months to 2 years prior to these alleged events. Even if I accept that this conversation took place, it is unclear whether any pornography was actually shown to her. The submission of the accused was that on that basis, the allegations were made up and the pornography incident had no real connection to the alleged offences. The accused gave evidence that the only discussion he had with DNC was that she had expressed her frustration to him about the strictures upon her socialising when she was 18 years of age. It was in that context that the discussion about her sexual experience was raised by DNC.
[215] T44.
[216] cf T16 and T17.
Also, when she was cross examined about the conversation allegedly had with the accused about her frustration with the strictures imposed upon her by her mother, DNC agreed that any discussion about sex was about consensual sex. It is not clear to me why DNC would give that evidence when there was no prior evidence of any discussion about non-consensual sex. DNC later said that she did not recall that conversation.[217]
[217] T47.5.
I am left in a situation where the evidence of DNC was that there was at least two occasions some time apart and possibly up to some years prior to the alleged event when there may have been a discussion about pornography in a motor vehicle and her fear about having sex for the first time and then evidence about consensual sex when she was 18 years old. I will leave aside the conversations that may have occurred when DNC was 18 and therefore I am left only with the evidence of those conversations that may have occurred some two years prior to the alleged incident.
I turn to the evidence on that topic. I have earlier recounted the version of events given by DNC about the motor vehicle being stopped on the side of War Memorial Drive at a point east of the entrance to the River Café. The evidence of DNC was that she was told to get into the back of the car and she complied without question. She said the middle seat of the car was empty. On the evidence I have received I have real doubt about the accuracy of that evidence. I accept the evidence of VB that at that time, a booster seat was permanently positioned in that row of seats. I will leave aside the question of the ability of the accused to lift DNC onto him whilst he was sitting in the seat facing towards the front of the car. The evidence of DNC was that this took some 15 to 20 minutes. However, when that further attempt failed, it is alleged that DNC was then pushed to a position with her back against the seat and her bottom slightly elevated. My understanding of the evidence was that the accused is alleged to have then put himself into the foot well between the front passenger seat and that row of seats but in fact in a position where, on the evidence of VB there would have been a booster seat. It is alleged that the accused was positioned between her legs and he then attempted to continue to have sexual intercourse with DNC. I have significant doubts that, having made observations of the accused, the events as then described by DNC were physically possible. Also, DNC said that she was being held by her waist and I interpolate here that she was being held up by her waist as well as being held across her chest. It is not clear to me how it was physically possible for someone such as the accused to have achieved that fact with only two arms. I have a real doubt about the accuracy of that evidence as described by DNC.
DNC gave evidence that on the way home, nothing was said by her or the accused. The evidence from DNC was that when she arrived home she had been crying continuously for 15 minutes, her face was puffy, her eyes were red, her cheeks were red and there were obvious signs of distress. She then said that she went upstairs to her bedroom. I am satisfied that there was no bedroom upstairs until at least after 2009. KN did not go and check upon her daughter despite the fact that she had arrived home in such a distressed state as she alleged. Also, if it be accepted that DNC and RC left the disco at finishing time, then DNC and the accused would not have arrived at the Clearview address until sometime between 12:30 and 12:45am. It is accepted that the trip from Adelaide to Clearview would take some 15-20 minutes at that time of night. Accepting some leakage of time at 11:30am, it would be very likely that KN would have expected DNC to be at home by midnight. She would have arrived home well after that time. Nothing seems to have been said about that.
DNC then gave evidence that her attitude to life and her relatives changed dramatically after these events. There is insufficient evidence for me to make any finding, one way or the other in relation to the question of DNC’s prior attitude to life. All that is known is that she graduated at the end of year 12. There is evidence about her attitude to her relatives. I am satisfied from all of the evidence that there was no discernible change in her attitude to the accused. The evidence and the exhibits satisfy me that however that relationship may have been described before the alleged incident, it appeared to have been close after the incident. I have expressed my misgivings about the tone or content of some of these text messages but I will leave that matter aside. That tone and content is to the opposite effect of the evidence given by DNC.
I am also satisfied that DNC did not change her attitude to the accused after the alleged events. No observation was made of any such change by persons close to her including NAB. This fact is borne out also by the other evidence including that DNC lived with VB and the accused for a period of three months, she often stayed over at the house and she was an active participant in all family functions. She trusted the accused sufficiently to make a number of requests to pick her up from Adelaide when she was socialising. All of the evidence discloses an ongoing close relationship between the accused and DNC and that is borne out by such things as DNC inviting the accused to her graduation dinner in 2011. She may not have invited NAB but invited NAB’s father. It may be accepted that there is a limited number of people who may be invited to a graduation dinner but this would make it all the more likely that a person would invite their closest friends to such a dinner.
When confronted with this evidence, and why it was that, objectively speaking, it could be said that she had continued contact with the family of the accused, DNC said that she had decided not to think about the events.[218] Her initial evidence was that she had effectively withdrawn from contact with the accused and his family. I am unable to accept that evidence. I am also unable to accept the evidence of DNC that she attempted to avoid the accused and would not get into his car. I am satisfied that the accused gave driving lessons to DNC on at least two occasions, and the second of which they were together alone. I am also satisfied that an inference arises from the text messages in evidence (Exhibits D4 and D5) that there is a likelihood that on some occasions the accused collected DNC when she was on her own in Adelaide.
[218] T65.
I am also satisfied from the evidence led by the accused that there is at least a reasonable possibility that the accused was not in Adelaide on 21 November 2008. I have earlier referred to the accused’s list of invoices and the summary of invoices. The accused gave evidence that his usual practice was to prepare his invoices on a Friday afternoon to reflect the work done for the previous week. Obviously enough, this is done for cash flow purposes and is a common enough process for contractors carrying on machinery type businesses. No such process occurred on the week of 21 November notwithstanding that work had been done in that week and the content of that work is clear from the actual invoices of 28 November 2008 which disclose work in the week of and including on 21 November 2008. That work was not invoiced until the week of 28 November 2008.
I am also satisfied that a reasonable possibility arises that the accused was involved in a banking transaction at the BP service station at Port Wakefield on Saturday 22 November 2008. Although the accused cannot specifically recall any such trip and his position is that he would have been purchasing petrol on his return trip from Ardrossan where he had work to do, I think that a reasonable possibility arises that this transaction was associated with a trip to Ardrossan which took place the previous day. I make that finding because of the absence of the invoicing for the week ending 21 November 2008 which ordinarily would have been carried out on 21 November 2008. Therefore I think that a reasonable possibility arises that the accused was not in Adelaide in the afternoon, he had travelled to Ardrossan and that he was returning from Ardrossan on 22 November 2008 when he called into Port Wakefield to refuel. I do not need to make any particular finding about those matters rather I need to weigh those matters in the balance as to whether or not the elements of the offences charged against the accused have been proved beyond reasonable doubt. I am conscious of the recent Court of Criminal Appeal decisions on the topic.[219] Adopting the approach of the CCA on the topic, I have taken into account that reasonable possibility in making an assessment as to whether or not the case against the accused has been proved beyond reasonable doubt.
[219] R v Schulz [2016] SASCFC 150 per Vanstone J at [11] – [30].
In all of the circumstances I am not satisfied that all of the elements of either of the offences charged against the accused have been proved beyond reasonable doubt. I consider that DNC was attempting to give truthful evidence but I consider that in a number of respects the version of events given by her has not stood up to the necessary scrutiny and it was not sufficient for me to be satisfied that the elements of the offences against the accused had been proved beyond reasonable doubt.
I have earlier expressed some misgivings about the evidence of the accused but I remind myself that no burden of proof falls upon him and even if I accepted or rejected everything that he said in evidence as a reasonable possibility, my task remains to decide whether I am satisfied that the elements of the offences charged have been proved beyond reasonable doubt.
In the circumstances, and based upon the findings that I have made, I am not satisfied that the elements of the charged offence or the alternative charge have been proved beyond reasonable doubt.
I find the accused not guilty.
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