R v Bristow
[2018] SADC 128
•5 December 2018
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BRISTOW
[2018] SADC 128
Reasons for the Verdict of Her Honour Judge McIntyre
5 December 2018
CRIMINAL LAW - PARTICULAR OFFENCES
Accused charged with one count of false imprisonment, three counts of rape and one count of threatening life.
Accused acquitted in respect of all counts on the Information.
R v BRISTOW
[2018] SADC 128
The accused was charged on Information dated 12 January 2018 with one count of false imprisonment; three counts of rape and one count of threatening life. The accused entered pleas of not guilty and elected to be tried by a Judge without a jury. For the reasons that I now publish I find the accused not guilty of all counts on the information.
The Information
The particulars outlined in the Information are as follows:
First Count
Statement of Offence
False Imprisonment (Common Law)
Particulars of Offence
Christopher Robert Bristow between the 20th day of June 2017 and the 23rd day of June 2017 at [address provided], unlawfully imprisoned VLM and detained her against her will.
Second Count
Statement of Offence
Rape (Section 48(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Christopher Robert Bristow on or about the 21st day of June 2017 at [address provided], engaged or continued to engage in sexual intercourse with VLM by performing an act of cunnilingus upon her, without VLM’s consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was not so consenting.
Third Count
Statement of Offence
Rape (Ibid).
Particulars of Offence
Christopher Robert Bristow on or about the 21st day of June 2017 at [address provided], engaged or continued to engage in sexual intercourse with VLM by inserting his penis into her vagina, without VLMs’ consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was not so consenting.
Fourth Count
Statement of Offence
Rape (Ibid).
Particulars of Offence
Christopher Robert Bristow on or about the 21st day of June 2017 at [address provided], engaged or continued to engage in sexual intercourse with VLM by inserting his penis into her anus, without VLMs’ consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was not so consenting.
Fifth Count
Statement of Offence
Threatening Life. (Section 19(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Christopher Robert Bristow on the 22nd day of June 2017 at [address provided], without lawful excuse, threatened to kill or endanger the life of VLM intending to arouse a fear that the threat would be, or was likely to be, carried out, or being recklessly indifferent as to whether such a fear was aroused.
Elements of the Offences
The elements of the various offences were not controversial. The key issue in respect of each charged offence was whether the conduct complained of had in fact occurred.
The offence of false imprisonment is committed when an accused unlawfully and deliberately deprives another person of their freedom of movement from one location to another in the sense that the person is restrained from going where that person wishes.
The offence of rape is committed when an accused engages in sexual intercourse with another person without that person’s consent, or knowing that the other person is not consenting or has withdrawn consent, or at least being recklessly indifferent to the fact that the other person was not consenting. Sexual intercourse includes penetration of the anus or vagina, and cunnilingus.
The offence of threatening life occurs when an accused makes a threat directed towards the life of another person in circumstances where, at the time the threat was made, the accused intended to arouse a fear that the threat would be or was likely to be carried out or was recklessly indifferent as to whether such a fear was aroused.
The Trial
In addition to the complainant, V, M the prosecution called H, B and M, McK, a mother and daughter who lived next door to the accused and A, S a former girlfriend of the accused. A number of facts were agreed and exhibits tendered. There was no defence case.
Legal Consideration & General Directions.
The Court of Criminal Appeal in this State has made it plain that it is not necessary for a court, having conducted a trial by judge alone, to set out in the reasons for verdict the standard or obvious directions of which the trial judge is bound to be aware. I do nevertheless remind myself of the following:
·An accused person is presumed to be innocent of a charge unless and until guilt has been proven beyond reasonable doubt.
·The prosecution bears the burden of proving a charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence. 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. It is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate that the accused is probably guilty. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to any element of an offence, then I must give the accused the benefit of the doubt and find him not guilty.
·In making findings of fact I must rely upon the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.
·I have reminded myself of the normal directions given in this State to juries concerning the proper approach to assessing the various witnesses who gave evidence, their credibility and reliability and the proper approach to drawing inferences of fact. I also remind myself of the usual directions given to juries about the topic of prior inconsistent statements given that the complainant was asked about some inconsistencies between her statements to the police and her evidence.
·The accused elected not to give evidence in this court. I remind myself that he was not bound to give evidence. He is entitled to remain silent leaving the prosecution to discharge its burden of proving the case.
·There are five separate charges. They are tried together as a matter of convenience. Each is a separate offence. I must therefore consider each separately and return separate verdicts on each.
Background & Prosecution Opening
The complainant, V, M and the accused were in what Ms M described as a loving romantic relationship from about September/October 2016 until about the end of December 2016. They had limited contact with each other in the months leading up to the alleged offending.
On 21 June 2017 the accused came to the complainant’s house and they spent time together at her house and at other locations. The complainant said that the accused’s car had been impounded and he prevailed upon her to drive him home. He lived at a rural property at [address provided]. There are two houses on that property; the accused’s house and one occupied by a mother and daughter, Ms B and Ms McK.
The charged offences are alleged to have occurred between the time that the complainant and the accused arrived at his house at about 8:00 pm on 21 June 2017 until the following day, 22 June 2017, when the accused left his house. The prosecutor in her opening, described the relevant events as follows:
·Count 1 was the accused keeping the complainant at the premises against her will throughout the night and into the next day.
·Count 2 is an allegation of rape in the form of cunnilingus. It was said that the complainant would give evidence that, after they had been at his house for some time, the accused undressed her bottom half and started to perform cunnilingus on her in a rough manner. The complainant tried to lift his head away telling him to stop it but the accused pushed her hand away and continued.
·Count 3 was said to have occurred immediately after the events that are the subject of count 2 when the accused forced the complainant to remove her top, removed his own clothes, grabbed his penis and inserted it into the complainant’s vagina without her consent.
·Count 4 is the third count of rape alleged to have occurred when the accused grabbed the complainant on the waist, flipped her over and then placed his penis into her anus. She told him to stop but he continued.
·The prosecutor referred to a number of uncharged acts of sexual activity both that night and the following morning.
·The accused’s former girlfriend, A, S attended the house at about 11.00 am. After this it is said that the accused again tried to have sex with the complainant but she said she wanted to have a shower. The accused is alleged to have put the complainant in the shower and turned the cold tap on. After this they got dressed and went outside.
·Count 5 occurred outside when the accused wanted to go for a drive in his car. The complainant refused and told him that she would wait at the house. The accused then said to the complainant that if he came back to find her in her car leaving he would kill her.
The Evidence
Ms M, the complainant, was the main witness for the prosecution. Indeed the prosecution case rests almost entirely upon her evidence. I must accept her evidence beyond reasonable doubt if I am to convict the accused of any or all of the charged offences. If I accept her evidence then it is evidence upon which the accused could lawfully be convicted of all 5 counts on the Information. I am not however satisfied beyond reasonable doubt about the reliability of the complainant’s evidence. I will not address all of the issues that have given rise to a doubt however I will point to some of the aspects of her evidence which have caused me to doubt its reliability.
I accept the evidence of Ms B, Ms McK and Ms S. They appeared to do their best to recount these events honestly. All gave cogent and coherent evidence that was congruent with other evidence. Where there is inconsistency between these witnesses and the complainant, I prefer the evidence of these three witnesses.
The prosecutor’s opening was presumably based on what the complainant told the police and the prosecution. There were two significant differences between that opening and the complainant’s evidence.
First, Ms M did not give evidence that immediately after the allegations of cunnilingus in count 2 the accused forced her to take her top off and then inserted his penis into her vagina thus committing the offence alleged in count 3. Second Ms M said that, at the time of the threat to kill alleged in count 5, she was naked.
The complainant’s evidence about count 2 was consistent with the prosecution opening. She then gave evidence saying that the accused forcefully removed both her top and her bra and that in the process, her necklace was broken and some hair was pulled out. She did not however give any evidence that immediately after this occurred he took his own clothes off and inserted his penis into her vagina. Indeed her evidence suggested that there was a break in sexual activity, and that the first act of penile vaginal intercourse occurred in the context of circumstances giving rise to count four. That is, she said the accused had flipped her over and made her go on all fours and penetrated both her vagina and her anus.
I was invited to find that there was no case to answer in respect count 3. This was resisted by the prosecution on the basis of the complainant’s evidence that the accused inserted his penis into her vagina on a number of occasions and indeed committed a number of sexual acts throughout the course of the evening such that she could not place precisely what incident occurred after what incident.
The complainant may be forgiven for forgetting the precise order of sexual offending during the course of what is alleged to have been a terrifying evening but the opening was clear that, whilst there had been a number of uncharged acts, there were two acts which occurred in quick succession in the context of removal of articles of clothing. The first being the act of cunnilingus alleged in count two following the removal of clothing from the lower part of the body, and the second being the penile/vaginal penetration following the removal of clothing from the upper part of the body. The fact that the complainant did not give evidence of any sexual act immediately following the removal of her top falls short of establishing the allegations set out in the opening. Further, what she described as occurring once she was on all fours was a very different scenario to that outlined in the opening.
The prosecution opening indicated that, at the time of the alleged threat to kill, the complainant and the accused were both dressed. The prosecutor’s opening was in line with what the complainant told the police in her statement dated 29 July 2017. She told the police that the accused let her put on her clothes before she went outside. When this statement was put to her the complainant said she could not remember telling the police that. She was then asked as follows:[1]
[1] TX 82
Q.Would you like to have a look at your statement.
A.If I need to?
Q.Would you like to.
A.No.
Q.Do you accept then that that's what you told the police.
A.I accept that.
Q.And that's different to what you told us yesterday, isn't it.
A.Must be. Yes.
Q.I mean, that would have been something that stood out in your mind, wouldn't it, being outside naked.
A.Yes.
The complainant did not proffer an explanation for this inconsistency.
There were other troubling inconsistencies in the complainant’s evidence. She gave evidence of seeing chains, axes and metal poles on the walls. [2] She was at pains to stress that she felt intimidated by the presence of these items during her examination in chief. She also indicated that this was a very different state of affairs to that which existed when she was in a relationship with the accused. The complainant also gave evidence about the accused kicking holes in the wall during the course of the evening.
[2] TX 13-14
Exhibit P3 contains photographs taken by the police shortly after these events are said to have occurred. There are no holes apparent in any of the walls photographed; this includes the lounge room, hallway or what can be seen of the kitchen. There is no sign of any chains, axes or metal poles on the walls. When the photographs were put to the complainant in cross-examination she initially denied that she had said that there were chains, axes or metal poles on the walls. She then volunteered that there was an item that looked like a chain and possibly an axe in a bag on the floor of the lounge room. There was no explanation as to how those items, if that is what they are, got there. There is no indication on the walls that such items had been located there. The complainant was also unable to account for the lack of holes in the walls other than to imply that perhaps photographs were not taken of the relevant areas. The photographs were however taken by an experienced crime scene investigator and appear to me to be comprehensive albeit they do not show the entirety of the kitchen area.
There is also inconsistency between the complainant’s evidence and that of the other witnesses. For example, the complainant denied that she and the accused were arguing when they arrived at the [address provided] property. Ms B gave evidence that she could hear the accused yelling and swearing. Ms McK gave evidence that she heard raised voices; the accused and a female voice.
The complainant gave evidence that the accused’s house was some distance from the other house and she said that the accused’s car and boat was parked some 5 minutes from the front door of the accused’s house. The tenor of her evidence was that the accused’s house was remote from the neighbouring house. The fact that the two houses are relatively close together can be observed in exhibit D4; an aerial photograph. The complainant said that she did not recognise what was shown on exhibit D4. I found her evidence on that topic unconvincing.
Both Ms B and Ms McK recognised exhibit D4 and agreed that it was an accurate representation of the relative positions of the two properties. The evidence of Ms B was that the accused’s car was some 50 metres from their back door and about 100 metres from the accused’s home. Ms McK described the car as being parked near her brick wall. She described the two houses as being about 80 metres apart, or as she described it “a stones’ throw”.
The complainant gave evidence that after the accused left the property she approached Ms B who took her to her mother’s home. The police were called. She said that she remained in Ms McK house until the police arrived. She then gave evidence as follows:[3]
[3] TX 86
Q.Just moving forward to when Mr B left the property, he came back to the house and by that stage you had gone to the neighbour's place; is that right.
A.Yes.
Q.After he'd left and come back, did you see him again.
A.No, but I could hear him because he was screaming and yelling, looking for me. So the other women and myself could hear Chris screaming on the property, looking for me.
Q.How long do you say that went on for.
A.Until the police got there.
Q.Where do you say you heard that noise coming from.
A.From the property, from the atmosphere.
Q.From outside.
A.Yes.
Q.Are you able to say whether it was nearby or far away.
A.I'm unsure of that.
Q.But you say that there was yelling coming from Mr Bristow until the police arrived; is that right.
A.Yep.
Q.Isn't it the case that when he got back, he just yelled out that he was coming over to collect the lawnmower.
A.I doubt it very much, but if you want to go with that, excellent. But I'm telling - I doubt that very much.
Q.And that that was the only yelling that he directed to the house where you and M and H were.
A.Well, M and H, you know, can tell the judge what they think as well as what I think, and I - I - I believe he was screaming out for me.
Neither Ms B nor Ms McK gave evidence of the accused yelling and screaming looking for the complainant.
Ms B said that whilst the complainant was in their house the accused came to grab the lawnmower and said “M, I am grabbing the lawnmower” and left.[4] Ms McK said that whilst Ms M was in the house the accused came through her garden area and grabbed the ride on lawnmower. He said something but she cannot remember what it was. He used more of a loud voice and agitated voice.[5] She said that after he took the lawnmower back to his place, she did not hear any further yelling and that the police arrived about 30 or 40 minutes later.
[4] TX 92
[5] TX 100
The complainant told the police in her statement of 19 August 2017 that it was dark when the accused drove away from the property at [address provided] on 22 June 2017. In her evidence, she said that the sun was setting and it wasn’t dark; it was nearing dark. She did not think that she told the police that it was dark.
Ms B says that Ms M approached her after the accused’s departure around about 1.30 pm. Ms McK said that she heard shouting at around 1:30 pm and shortly after this her daughter H came back to the house with Ms M. Both estimated this time by reference to the time at which they finished work.
Their evidence is supported by some agreed facts about times. The police arrived at 3:33 pm. When police attended, Ms M, Ms McK and Ms B were all in the main house and at 4:06 pm the police went to the cottage and located the accused lying in his bed. Accepting as I do, the evidence of Ms B and Ms McK, it is apparent that it could not have been dark or approaching dark. It is further clear that the accused was not, as the complainant said, vocally searching for her until the arrival of the police. Ms B and Ms McK indicated a short visit by the accused to collect the lawnmower and the police found the accused in bed.
There are also differences between the complainant’s evidence and that of Ms S. It appears common ground that Ms S went to the accused’s house at about 11:00 am on the morning of 22 June 2017. The complainant said that when Ms S arrived she and the accused heard footsteps coming down the hallway. The accused opened the dressing gown that the complainant was then wearing and started to perform cunnilingus on her. The complainant was asked what was happening at the time Ms S came to the lounge room:[6]
[6] TX 74 - 75
Q.Do you say that him giving you oral sex was happening when Ms S came into the room.
A.I had pushed Chris's head off of me as she had entered the room, so she saw me there with the dressing-gown open, laying on the mattress. I assumed that she saw that.
Q.You can't say what she saw, but what you're telling us is the position you were in when she came in; is that right.
A.Yes.
Q.You say you were lying down, do you.
A.On my back.
Q.On your mattress.
A.On Christopher's mattress, yes.
Q.With your dressing-gown open.
A.Yep, and I was, yep, naked, embarrassed. I pushed his head off of me.
Q.So his head would have been quite close to your vagina, would it.
A.Yes. I asked him to 'Stop it', 'Get off me', 'What are you doing?'.
Q.So you'd say it's wrong that you were lying on the mattress and talking with Chris at that stage when A came in.
A.Telling him to get off of me, confused as to why he was doing what he was doing when the footsteps were coming down the hallway.
Q.How was he positioned - that is, Mr Bristow - when she came in.
A.I can't recall. I'm unsure of that.
Q.So you were trying to cover up, were you, quickly.
A.Yes.
Q.You weren't looking friendly towards Chris at that stage.
A.I was concentrating who was coming into the room because I was terrified. I didn't know whether it was someone extra that was going to help me. I was at first a little relieved that it was A, obviously, but I was - A was so hurt and upset and Christopher and her started fighting - arguing and fighting.
The complainant said that the accused told Ms S to “fuck off” a couple of times, telling her that he was in love with Ms M. Ms S appeared very shocked and was crying. The complainant said she felt very bad for Ms S and she too started crying. The accused went to hit Ms S and Ms S left shortly after she came into the room.
The complainant was asked if she went outside the house and specifically if she went outside and waved Ms S back in the house. The complainant said that she did not do this. She said that the accused would not allow her to go outside or leave the mattress in the lounge room. She could not remember if Ms S came back a second time.
The complainant said that the accused attacked the door to the lounge room several times over the course of the evening of 21 June 2017. He smashed at it and he kicked at it. Eventually she saw him rip the door off its hinges. The complainant said that she assumed that the door was on the floor as it is depicted in the police photographs prior to Ms S arriving.
Ms S said that she went to the accused’s house because he had not been responding to telephone messages and she was concerned about him. They were no longer in a romantic relationship but were still amicable and maintained contact. She arrived at the property at about 11:00 am. It appeared that that there was no-one home because she could not see the accused’s Ute but she went into the house calling out ‘hello’. As she got inside the house she heard the accused talking and thought he was on the phone. When she got to the doorway of the lounge room she saw the complainant, who she knew, lying on one side of the mattress and the accused sitting on the other side. The complainant was wearing the accused’s dressing gown. Ms S said that the lounge room door looked like it was slightly away from the hinges but it was still hanging. The door was not on the floor at the time she got there.
Ms S said she was upset because of the situation and because she saw the complainant was there. She did not recall what the accused said to her but she said that he used a conversational voice. She thought the topic of the conversation was about why she was there and that she told him that she was worried because he hadn’t answered her messages. She denied that he tried to hit her. She said that everything appeared amicable between Ms M and the accused. She said she had a brief conversation with the accused and then left. As she was leaving the complainant said “don’t leave, stay here”. Ms S got in her car and drove down the driveway but then saw the complainant come out of the house waving to her in a way that Ms S thought meant come back to the house. The complainant was by herself when she saw her outside. Ms S stopped and sat in her car for a couple of minutes thinking and then she went back to the house.
Ms S said that she was at the property in all about 10 minutes. It was an awkward situation but she thought that the complainant appeared quite casual. The accused seemed agitated.
These two versions of events are, despite some similarities, quite different. The complainant’s evidence suggested that, at the very least, she and the accused were in close proximity to each other, that she was partially naked and that they had not been conversing rather she was telling the accused to stop. She said that the accused was angry with Ms S, that they had an argument and that he went to hit her. She denied being able to go outside. Ms S however gave evidence of hearing a conversation, of seeing the accused and the complainant some distance apart on the mattress and of the complainant being dressed in a dressing gown. She said the accused and she had a conversation and that she left. She said she returned on seeing the complainant outside, on her own, gesturing to Ms S to return.
Ms S was an impressive witness. Whilst it was clear that she did not like the complainant being with the accused, Ms S appeared to be doing her best to recall what had occurred and she recounted this in a matter of fact way. It is true that her focus was on Mr Bristow rather than upon the complainant, and that she may have been mistaken when she thought the complainant appeared casual. However, it seems unlikely that she was mistaken about the complainant asking her to remain and about her coming out of the house to wave her back. It is also unlikely that she would have missed the fact that the lounge room door was on the floor rather than still attached to the door frame. I accept Ms S’ evidence on those topics.
It was put to me that the complainant’s evidence was corroborated by other pieces of evidence; specifically the DNA evidence and the evidence of the medical examination at Yarrow Place. The accused’s DNA was on various articles of clothing worn by the complainant during the course of these events. The complainant had a number of bruises and abrasions, including an abrasion on the labia minora all of which were consistent with the evidence that she gave.
The difficulty with this submission however is that the DNA evidence, and even the evidence of the bruises and abrasions, was equally consistent with consensual sexual activity. The injuries are not so significant as to be inconsistent with consensual sex. These matters together with other matters pointed to by the prosecutor, being areas of similarity between the complainant’s version of events and that given by the lay witnesses, are not sufficient to overcome the inconsistencies and the issues that I have referred to above.
Conclusion
In all of the circumstances, I am suspicious that something untoward did occur at the accused’s [address provided] over the course of the evening of 21 June 2017 and the morning of 22 June 2017. Suspicion is not however proof. I cannot accept the evidence of the complainant beyond reasonable doubt for the reasons that I have outlined. I simply do not know where the truth lies. Therefore the prosecution has not proven the charges beyond a reasonable doubt. In those circumstances notwithstanding my reservations, I must acquit the accused.
I will record a verdict of not guilty in relation to all 5 counts on the Information.
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