R v Carter

[2023] SADC 25

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v CARTER

Criminal Trial by Judge Alone

[2023] SADC 25

Reasons for the Verdict of her Honour Judge Schammer 

4 April 2023

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

The accused is charged with one count of rape, allegedly committed at Parkside on 12 December 2020.

The accused and the complainant, JB, first matched on the dating app, Tinder, on 25 October 2020.

After communicating by way of social media and other platforms, over a period of approximately 6 weeks, the accused and JB met for the first time, at JB’s Parkside unit, late on 11 December 2020, after JB’s work Christmas party.

There is no dispute that the accused and JB engaged in penile vaginal intercourse in JB’s bed, at the unit, during the early hours of Saturday 12 December 2020. The issue in dispute is whether that sexual intercourse occurred with JB’s consent.

The prosecution case is that JB was asleep and woke to find the accused on top of her, having sexual intercourse with her, such that she could not and did not consent to the activity. This is denied by the accused, who maintains that JB was an active and consenting participant in the act of sexual intercourse.

Verdict:

Not guilty.

Criminal Law Consolidation Act 1935 (SA) s 48; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) s 34M, referred to.
Murray v R (2002) 211 CLR 193, considered.

R v CARTER
[2023] SADC 25

[Criminal]

Introduction

1. The accused, Corey Carter, is charged on Information dated 11 February 2022 with one count of rape, pursuant to s 48 of the Criminal Law Consolidation Act 1935 (the Act).

2. The complainant, JB, first matched with the accused on the dating app, Tinder, on 25 October 2020. The accused communicated with JB by way of social media and other platforms, on and off, over a period of approximately 6 weeks. The accused and JB then met for the first time, at JB’s Parkside unit, late on 11 December 2020. There is no dispute that the accused and JB engaged in penile vaginal intercourse in JB’s bed, at the unit, during the early hours of Saturday 12 December 2020. The issue in dispute is whether that sexual intercourse occurred with JB’s consent.

3. The prosecution case is that JB was asleep and woke to find the accused on top of her, having sexual intercourse with her, such that she could not and did not consent to the activity. This is denied by the accused, who maintains that JB was an active and consenting participant in the act of sexual intercourse.

4. The accused elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act 1927. He gave evidence denying the offending.

   The Charge

   Statement of Offence

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

   Particulars of Offence

   Corey Jay Carter on the 12th day of December 2020, at Parkside, engaged or continued to engage in sexual intercourse with JB by inserting his penis into her vagina, without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact that she was not so consenting.

   Elements of the Charged Offence

5. The prosecution must prove the following three elements beyond reasonable doubt:

   (1)An act of sexual intercourse took place between the accused and JB.

   (2)JB did not consent to engaging in sexual intercourse.

   (3)The accused knew or was recklessly indifferent to the fact that JB was not consenting.

6. ‘Sexual intercourse’ includes any activity involving or consisting of the penetration of a person’s vagina or labia majora, by any part of the body of another person, or by any object, and includes the continuation of such activity.

7. There is no dispute that the accused engaged in an act of sexual intercourse with JB.

8. As to the second element of the offence, consent to sexual intercourse must be freely and voluntarily given.

9. It is not necessary for a person to demonstrate that they do not consent, for example, by protesting or physically resisting, nor is it necessary for a person to be physically injured in the course of sexual activity to indicate a lack of consent.

10. A person is taken not to have freely and voluntarily consented to sexual activity if the activity occurs while the person is asleep or unconscious. As such, in the circumstances of this case, if the prosecution proves beyond reasonable doubt that sexual intercourse occurred, that is, it commenced or continued, at any time while JB was asleep, then this element will be proved.

11. The third element of the offence relates to the accused’s state of mind. The prosecution must prove beyond reasonable doubt that the accused knew that JB was not consenting, or that he was recklessly indifferent to the fact she was not consenting. As to the latter – the prosecution will establish the accused was ‘recklessly indifferent’ to the fact JB was not consenting, if it proves beyond reasonable doubt either:

    1.that the accused was aware of the possibility that JB might not be consenting to sexual intercourse, but decided to proceed regardless of that possibility; or

    2.that the accused failed to take reasonable steps to ascertain whether JB did in fact consent to the activity; or

    3.that the accused did not give any thought as to whether or not JB was consenting but proceeded regardless.

12. The accused gave evidence that he had been drinking alcohol in the hours before the alleged offending and in the record of interview, he told the police he was ‘pretty drunk’. If the accused was intoxicated at the time he had sexual intercourse with JB, this is completely irrelevant to my determination of the issue as to whether he knew that she did not consent to engaging in sexual intercourse with him or was recklessly indifferent to the fact she did not consent.

    Witnesses and Exhibits

13. The prosecution called evidence from the following witnesses:

    1.The complainant, JB.

    2.Mr D Derrick, JB’s work colleague.

    3.Ms V Scowcroft, JB’s former work colleague.

    4.Dr I Musgrave, Senior Lecturer in Pharmacology at the School of Biomedicine at the University of Adelaide.

    5.Ms T Markham, Registered Nurse.

14. In addition, numerous exhibits were tendered, including copies of various communications between the accused and JB made over Tinder and other platforms,[1] an audio recording of JB’s call to police comprising the initial complaint,[2] a booklet of photographs taken of the complainant at Yarrow Place by Ms Markham on 13 December 2020[3] and an audio-visual record of the interview conducted by police with the accused on 13 December 2020.[4]

    [1]     Exhibit P1.

    [2]     Exhibit P6.

    [3]     Exhibit P8.

    [4]     Exhibit P10.

15. The accused elected to give evidence but did not call or tender any other evidence.

    Legal Directions

    General

16. The prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. There is no onus on the accused to prove anything. It is not for the accused to prove that he did not commit the offence as charged.

17. The accused is presumed by law to be innocent of the charge unless and until the evidence that I accept satisfies me that every element of the offence has been proved beyond reasonable doubt. Nothing short of proof beyond reasonable doubt will suffice.

18. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. Before the accused is convicted of the offence, I must be satisfied that the prosecution has proved beyond reasonable doubt each element of the offence. I must reject beyond reasonable doubt the accused’s denial and any explanation(s) proffered by him.

19. In these reasons, if I use the words ‘proved’, ‘established’ or ‘satisfied’, I mean to a standard of beyond reasonable doubt. If I am satisfied that there is a reasonable explanation consistent with the innocence of the accused, or I am uncertain where the truth lies, then I must find the charge has not been proven beyond reasonable doubt.

20. I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence that a witness gives. I can reject or accept all or a part of a witness’s evidence.

21. JB’s evidence is critical to the prosecution case. I must carefully scrutinise her evidence before I can be satisfied beyond reasonable doubt of its truthfulness and accuracy.

22. When JB gave evidence, the court was closed, she was accompanied by a court companion and there was a screen placed between her and the accused. Her evidence was recorded. I must not draw any inference adverse to the accused in light of these arrangements, nor must these arrangements influence the weight I give to JB’s evidence.

23. The accused elected to give evidence. He was under no obligation to do so. I should give him whatever credit I see fit for subjecting himself to cross-examination. I must assess his evidence in the same way as I assess the evidence of any other witness.

24. In presenting a case, the accused has not assumed any burden of proof, that burden always remains with the prosecution. I remind myself that if I was to reject the accused’s evidence in its entirety, that does not bolster, nor strengthen the prosecution case. The prosecution must prove each element of the offence charged beyond reasonable doubt.

25. The accused gave a record of interview to the police. He was under no obligation to do so and I am entitled to give him whatever credit I consider appropriate for cooperating with the police. Any statements or expressions of opinion made by the police officers to the accused during the record of interview are not evidence. Only the responses given by the accused are to be used as evidence in this case, bearing in mind that those responses were not given while the accused was under oath.

26. There were several potential witnesses who were not called to give evidence, including JB’s sister, her parents and her friend, Damien. Although a toxicology expert, Dr Musgrave, was called, he was not questioned at all about the potential impact on memory (or decision making) caused by a combination of alcohol and cocaine, either in general terms or on the basis of assumptions specific to this case.[5]

    [5]     Noting JB gave evidence that she had consumed both alcohol and cocaine in the hours prior to the alleged offending.

27. The prosecution bears the onus of proof in this case. I must decide the case only on the evidence before me. If that evidence is insufficient to support a finding of guilt beyond reasonable doubt, I must find the accused not guilty. I must not speculate about the nature of any evidence I have not heard. I simply do not know what evidence may have been given by any absent witness. I must decide the case only on the evidence before me.

28. There was evidence that JB had consumed both alcohol and cocaine and that the accused had been drinking alcohol in the hours immediately prior to the alleged offending. Similarly, Ms Scowcroft gave evidence that she had been drinking during the afternoon, prior to the alleged offending.

29. Although there was no expert evidence on this specific issue, it is a common experience that intoxication can have an adverse bearing on a witness’s recollection of events and/or a person’s subsequent recall of relevant events. It is also a common experience that intoxication may reduce a person’s inhibitions, it may cause them to be more relaxed or more outgoing, and it may cause them to do things they may not do if they were not intoxicated.

30. As such, the intoxication of a witness by alcohol may affect the proper assessment of his or her reliability as a witness. It is a matter for me to make findings, based on the evidence that I have heard, as to the extent to which a witness may have been affected by alcohol and what effect that has had on their general reliability. This is particularly important in the case of JB’s evidence, as her evidence is critical to the prosecution case.

31. As to the making of inferences, I must not guess or speculate. There must be a logical and rational connection between the facts I find and the inferences I draw.

32. I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice, or fear and must not be influenced by public opinion in relation to this matter.

    Complaint

33. JB gave evidence that she reported the alleged offending to the police by way of a telephone call made on Sunday, 13 December 2020. A recording of that conversation, between JB and ASO Featherstone, was admitted as evidence of complaint pursuant to s 34M of the Evidence Act 1929.

34. Complaint evidence is an exception to the rule which prohibits proof of prior consistent statements made out of court. Complaint evidence is admitted to inform the trier of fact how the allegation first came to light and as evidence of the degree of consistency of conduct of the complainant. It is relevant therefore to my assessment of JB’s reliability and credibility.

35. There may be many and varied reasons why an alleged victim of a sexual offence has made a complaint at a particular time or to a particular person. It is for me to determine the significance (if any) of the evidence in the circumstances of this particular case.

36. Importantly, this evidence was not admitted as evidence of the truth of what was alleged and cannot be used as some form of independent evidence to prove what happened.

37. I further remind myself that any statements or expressions of opinion made by ASO Featherstone to JB during that phone call are not evidence and those statements or expressions are before me solely to understand what JB told Ms Featherstone.

    Prior Inconsistent Statements

38. In his closing address, the prosecutor submitted that the evidence given in court under oath by the accused differed from what he had told the police during his record of interview. Counsel for the accused also highlighted aspects of what JB told the police during her initial complaint, as being potentially inconsistent with her evidence, insofar as it was submitted there was some uncertainty around the facts as she described them to police, but certainty and clarity as to those same facts in her evidence.

39. While this case is to be determined by the evidence given on oath and subject to cross-examination in court, evidence of out of court statements is relevant and can assist me to determine the reliability and credibility of the evidence given by the maker of those out of court statements.

40. Before I have regard to a prior inconsistent statement there must be some evidence that the prior inconsistent statement has been made. I may use evidence that a witness has said something different on a previous occasion or omitted to say something on a previous occasion as evidence affecting their credibility and their accuracy as a historian.

    Discreditable Conduct

41. JB gave evidence that after the accused arrived at her unit, he offered her a line of cocaine, which she declined.[6] The accused denied ever offering JB cocaine.[7]

    [6]     T 19.4-7.

    [7]     T 100.16-19, noting that my recollection of the evidence is that the accused was asked if he had offered JB cocaine ‘at any stage’, not ‘at this stage’, as recorded in the transcript.

42. The evidence was relevant and admitted to provide a better and complete understanding as to the context in which the alleged offending occurred. If I accept JB’s evidence on this issue, I can use it for that purpose. However, I must not reason that because the accused acted this way, he is a bad person, and therefore the sort of person who it is more likely to have committed the offending. To do so would deny the accused the presumption of innocence.

    Background Evidence – Not in Dispute

43. At the relevant time, JB was aged 30, worked at Bedford Industries and lived with her younger sister at a unit in Parkside. The unit comprised an open plan kitchen/dining/living area, two bedrooms and a bathroom.[8]

    [8]     Exhibits P2 and P3.

44. The accused was aged 28 and worked as a ‘fly in fly out’ (FIFO) worker in the mines at Roxby Downs. When in Adelaide, he lived at Blakeview.[9]

    [9]     MFIP11 at Q.1-11.

45. JB and the accused first matched on the dating application, ‘Tinder’ on 25 October 2020[10] and thereafter ‘chatted’ to each other on an intermittent basis, over various social media platforms, including SnapChat, Instagram and Facebook Messenger. The content of some (but not all) of those communications is in Exhibit P1. As JB explained, it is no longer possible to access the SnapChat messages because of how that platform works and the Instagram messages were deleted by her, shortly after the alleged offending.

    [10]   Exhibit P1.

46. The messages exchanged are best described as friendly, flirty banter between two young adults wanting to get to know each other better. There is nothing untoward in those messages, and nothing overtly sexual.

47. There was no dispute that at some stage, while messaging, JB had told the accused that she was not interested in a one-night stand, and that he had responded with words to the effect of, ‘he liked a challenge’.[11]

    [11]   T 10.9-15; T 97.33-98.7.

48. It took some time for JB and the accused to first meet because of their various work and other commitments. A planned meeting on Friday, 4 December 2020 did not eventuate. As a result, JB and the accused arranged to meet each other in person, for the first time, on Saturday, 12 December 2020.

49. On Friday, 11 December 2020, JB attended a work Christmas function at the Edinburgh Hotel in Mitcham. This was a lunch, held outside in the beer garden. She gave evidence, which was not challenged, that the function started at 1:00pm, and that she left the Edinburgh Hotel, in an Uber, with some colleagues, to head to Casablabla in Leigh Street, at around 8:15pm.

50. The accused spent much of the Friday afternoon drinking with his friends at the Blacksmiths Hotel at One Tree Hill.

51. During that day, JB and the accused were in communication and made loose arrangements to meet up that night, rather than the next day as was originally planned. One of those communications was a brief video call made by the accused to JB via SnapChat, during her Uber journey from the Edinburgh Hotel to the city.

52. There is no dispute that during that day, both JB and the accused were consuming alcohol. However, precisely how much alcohol they consumed and their respective levels of sobriety was the subject of cross-examination, and I will refer to that in more detail later. In addition, JB gave evidence that she consumed cocaine at about 5:00pm.[12]

    [12]   T 19.8-11.

53. When JB arrived at Casablabla, she assisted a drunk work colleague to catch a taxi home. She then returned to join her two work colleagues, Mr Derrick and Ms Scowcroft, at Casablabla, where she stayed until around 10:00pm. JB and Mr Derrick shared an Uber home. The Uber dropped JB home first, at around 10:15-10:30pm.[13] Mr Derrick stayed in the Uber and arrived at his home at 10:51pm.[14]

    [13]   T 14.22-24.

    [14]   T 58.35; Exhibit P9, noting there was no evidence as to precisely where Mr Derrick lived, albeit from Exhibit P9 it appears the journey ended in a southern suburb of Adelaide.

54. Although there was some minor difference in the evidence given by JB and the accused as to precisely when the ‘loose’ arrangements they had made to meet up that night were confirmed, JB gave evidence, which was not challenged, that she called the accused when she arrived home, gave him her address and said he was more than welcome to come over.[15] The accused was at his home at Blakeview when the arrangements were confirmed and then caught an Uber to JB’s house.

    [15]   T 14.25-37.

1. As to what she did while waiting for the accused to arrive, JB said:[16]

   I got ready for bed, took off my make-up, changed out of my clothes, brushed my teeth.

   [16]   T 15.13-14.

2. She said she kept the same underwear on (black G-string and bra) but changed out of her long sleeve black dress and boots into a jumper and short pyjama pants.[17] JB’s sister was not home, meaning JB was at the unit alone.

   [17]   T 15.19-30.

3. The accused arrived at JB’s home around 11:00pm.[18] JB went outside to meet him, hugged him and then accompanied him inside. They entered the open plan area and JB offered the accused a drink, which he declined. They then went into JB’s bedroom, where they both sat on the bed, and started chatting. It was in that bed, sometime early on Saturday, 12 December 2020, that the alleged offending occurred.

   Complainant’s Evidence

   [18]   JB said ‘about’ 11pm; T 15.32, the accused said around 11, 11:30pm; T 99.24.

   Reaction Upon First Meeting

4. The complainant gave evidence that her first thought when she saw the accused, in person, outside her unit, was ‘No thank you’ and that she ‘wasn’t interested’.[19] She said she did not find the accused attractive and had no intention of having intimate sexual relations with him. She said that at no time thereafter did her intention in that respect change.[20] Rather, her intention was simply to ‘hang out’ with the accused as ‘we had had quite good banter’ and that ‘he seemed to have quite a good sense of humour.’[21]

   [19]   T 16.3-5.

   [20]   T 16.8-12.

   [21]   T 16.21-23.

5. In cross-examination, JB agreed that in addition to having seen the accused’s profile picture on Tinder prior to first matching with him, she had also looked at other photographs of him on Tinder. He had sent her SnapChat photos of himself and she had engaged in a brief Facetime video call with him on Friday, 11 December 2020.[22]

   [22]   T 33.4-28.

6. The complainant gave evidence that after offering the accused a drink, which he declined, they engaged in some small talk and she then asked him if he wanted to come and sit down. Rather than sit on the couch in the living room, or at the kitchen table, they went into her bedroom and sat on the bed. She said it was ‘more than likely’ that she shut the bedroom door.[23]

   [23]   T 37.28-29.

7. As to why they had gone into her bedroom, rather than stay in the open plan area to chat, JB gave evidence:[24]

   So because my sister is younger, I didn’t know when she was coming home, I just didn’t want it to be awkward, she had never met him before, yeah.

   [24]   T 18.19-21.

8. In cross examination, JB was asked how it would be awkward if her sister came home and she and the accused were sitting in the lounge, talking. She said:[25]

   Because it’s someone that I don’t know, first time meeting and she’s my younger sister.

   [25]   T 38.14-15.

9. JB agreed she had been communicating with the accused, on and off, for almost a couple of months at this stage and that their banter had been good. She gave the following evidence:[26]

   [26]   T 38.32-39.22.

   Q.So how, then, if it’s even the first time you’ve met him in person, would it be awkward if your sister comes home and the two of you are sitting talking in the lounge. How would that be awkward.

   A.I think you’d have to meet my sister to know. She finds that stuff a bit awkward. It’s hard to explain her, really, so - and because she’s my younger sister, I would just not talk to her about that kind of stuff, so, to avoid any questions, just went and sat in my room.

   Q.But when you say ‘that stuff’, what does that mean, because at this point you were just planning on being friends with Corey Carter.

   A.For sure. My sister and I don’t have a relationship where we discuss relationships. We’re not, you know, gossipy kind of sisters, you know. We’re quite above board in what we talk about. We don’t discuss relationships. We, you know, I don’t go on nights out with my sister, we don’t have that kind of relationship.

   Q.But you told us you’d determined by this point that Corey Carter was only going to be your friend.

   A.Yeah.

   Q.There was no relationship.

   A.For sure.

   Q.So how is that awkward if you’re sitting with a friend.

   A.Because it’s still a strange man in our house at midnight.

   Q.Wouldn’t you just say, if she comes home, you’re sitting in the lounge, you say ‘This is my friend Corey’.

   A.I could have, yes.

10. She disagreed, in strong terms, with the proposition that the reason they went in the bedroom was because she was still weighing upon whether to pursue a girlfriend/boyfriend relationship with the accused.[27]

    [27]   T 39.23-27.

    Talking in the Bedroom

11. JB gave evidence that she and the accused spent about 30 to 45 minutes chatting in her bedroom, talking about their night, engaging in small talk. She said he offered her a line of cocaine, which she declined.[28] She told the accused of her plans to go to a friend’s birthday celebration at a winery the next day.[29] He lent in to kiss her, but she pulled away.[30]

    [28]   T 19.4-7.

    [29]   T 19.18-38. In cross-examination, JB said this party was to start at about midday or 1pm on the Saturday 12 December 2020; T 36.1.

    [30]   T 20.6-8.

12. As to what happened next, JB gave the following evidence:[31]

    [31]   T 20.10-38.

    A.We carried on chatting, yep.

    Q.Were you sitting up, were you lying down.

    A.I was kind of lying down but like on my, on my arm, so you kind of, I was like leaning into the conversation.

    Q.Right. Did that change.

    A.When I went to sleep.

    Q.When you went to sleep, was there any discussion about him staying or going.

    A.Not from memory.

    Q.What happened next.

    A.He moved to try and put his hand in my bra.

    Q.What happened next.

    A.I told him ‘No’, we weren’t going to be doing that.

    Q.What did he say.

    A.He took it away and he left it.

    Q.Okay. Were you facing towards -

    MR COATES:       Can we just slow down? I’m just trying to catch up. Hang on. Thank you.

    DR SALU:Thank you.

    Q.From your perception, how did he respond to the rebuff.

    A.Didn’t seem happy but he respected what I said and he stopped.

    Q.Okay. What did you do.

    A.I said that I was getting really tired and I turned off the light, rolled over and went to go to sleep.

    Q.At the time that you were going to sleep, about what time would that have been.

    A.That was about 10 to 12.

13. JB explained that she knew it was around this time because she had a missed call from a friend, Brad, at 11:45pm, which she did not answer and that she went to sleep shortly after that.[32] She said that at the time she went to sleep, the accused was in the bed, under the covers, next to her.[33] As to her thought processes in terms of letting him stay the night, she said:[34]

    It didn’t bother me because he had tried to kiss me and stuff and I had said ‘No’ and he respected that. I didn’t feel threatened, I didn’t feel that I had any reason to doubt him doing anything more, so I had no dramas with him staying.

    [32]   T 21.1-13, Exhibit P4.

    [33]   T 21.29-32.

    [34]   T 21.35-22.1.

14. In cross-examination, JB said it was about five minutes after the accused had tried to kiss her, that she told him she was going to go to sleep. She said she turned the bedside lamp off and took off her jumper as it was really hot that night and there was no air conditioning in her room.[35] She agreed that by that point in time, the accused had taken off his shoes and his shirt and put his wallet and keys on the side of the bed.[36] She said there had been no discussion about him staying or going.[37] She disagreed with a proposition that she was happy for the accused to stay the night as she was still contemplating him as a potential boyfriend.[38]

    [35]   T 40.12-41.6.

    [36]   T 41.18-22.

    [37]   T 41.23-24.

    [38]   T 41.28-31.

15. During her evidence-in-chief, JB described herself as being exhausted. She wanted to go to sleep as she wanted to be functioning and alert the next morning in preparation for her friend’s party.[39]

    [39]   T 19.15-17, T 19.18-29.

    The Alleged Offending

16. JB gave evidence that after falling asleep, her next recollection was of waking up, with the accused on top of her. She was wearing only her bra. The accused’s penis was in her vagina. She said:[40]

    So I was still on my side, the left-hand side of the bed, my head had fallen between the two pillows and I had the pillow that I was lying on kind of slightly over my face. He was holding my right leg in the air, kind over his shoulder and holding it with his arm (INDICATES).

    [40]   T 22.25-29.

17. JB described her breathing as being laboured as the accused’s left hand was on her throat. He then moved his hand so it was on her face and she said his finger went into her left eye. He then put her left leg over his shoulder, similar to the right, and was holding both of her legs.[41]

    [41]   T 22.31-33; T 23.13-20.

18. JB gave evidence that she was petrified, so she lay there and pretended to be asleep. She said that as the accused had had one of his hands on her throat when she woke up, she was scared about what he might do if he knew she was awake. She feared he may hurt her or even kill her.[42] She said at the time she weighed around 65 kg and was five foot two. He was about 5 or 6 inches taller and about 30-40 kg heavier than her.[43]

    [42]   T 24.4-7; T 32.3-12.

    [43]   T 30.12-21.

19. JB described her body as limp and denied engaging with the accused in any way during the act of sexual intercourse.[44]

    [44]   T 24.8-9; T 23.38-24.3.

20. JB said the sex was painful, as at one stage the accused’s penis came out of her vagina and when he jammed it back in, it was quite painful.[45]

    [45]   T 23.33-37.

21. JB gave evidence that the accused asked her if he could come inside her. She did not answer, however, he said ‘yes’, in answer to his own question.[46]As to what happened next, she said:[47]

    Then he did come inside of me and he stayed there for a couple of seconds after and then he pulled himself out and just let, like let me flop onto the bed, so he didn’t place my legs down, they just kind of gave way and then he went into the bathroom.

    [46]   T 23.21-29.

    [47]   T 24.13-17.

22. In cross-examination, JB agreed that her phone was on the bedside table at this time. When she was asked if she thought to call someone, while the accused was in the bathroom, she said that she did think about doing that, but she was absolutely petrified, so she just lay there.[48]

    [48]   T 45.24-26.

23. JB also explained that she did not say anything to the accused when he returned to the bed, as she was scared. The accused went sleep. She lay there, uncovered and without her underwear on, for what felt like a couple of hours, before eventually falling asleep.

24. JB awoke and checked her phone, at 6:12am. The accused was still in the bed next to her. She said that he kind of stroked her back and in response, she moved away. She asked him ‘why’ she did not have her underwear on and he said, we had sex last night. She said that she did not remember saying yes or agreeing to that. In response he kept repeating ‘You did say yes, you did say yes’. JB gave the following evidence:[49]

    AHe said you did say - he just kept saying ‘You did say we could have sex, you did say yes, you did say we could do that’ but the way he was saying it, it’s just – it just wasn’t in a way that I would talk.

    QSo the phrase he was using –

    ANothing I would say.

    [49]   T 25.5-10.

25. She found her underwear and pyjama shorts at the foot of the bed. The pyjama shorts were pulled out of shape in the sense that the drawstring was still tied.[50]

    [50]   T 25.13-21.

26. JB said she started crying and asked the accused to leave. She could not look at him. He kept asking if they could talk about it, but she said no, she did not want to talk about it, she wanted him to go. He said sorry and left. This was around 6:30am.

27. In cross-examination, JB was asked why she had asked the accused “why” she was not wearing any underwear, if she knew that he had had sexual intercourse with her. She said she asked him this, as she knew she had not taken her underwear off. She disagreed with a proposition put to her that she asked him this, because she was trying to remember whether she had actually had sex with him. She maintained that she vividly remembered him having had sex with her that night.[51]

    [51]   T 46.24-47.13.

28. JB denied that it was possible that she may have agreed to have sexual intercourse with the accused, and that it was not the case that she was simply having difficulty remembering what had happened. She said she had a clear memory of everything that had happened.[52]

    [52]   T 47.19-26.

29. In cross-examination, JB was asked what was unnatural about the accused’s claim that he had asked her if she had wanted to have sex and she had said yes. She gave the following evidence:[53]

    A.For me, I just, I don’t know, I - I’ve never had someone say to me ‘Do you want to have sex?’. I’ve had someone say, you know, ‘Shall we do more?’, or ‘Is this okay?’, and I’d say ‘Yeah, this is fine’ or ‘Let’s keep going’.

    Q.What about it, the phrase that he was using, was ‘Nothing that I would say’, that was your evidence, what about that.

    A.It just seemed very - ‘You said yes’, ‘But you said yes’. It’s like - it was like he was trying to justify what had happened ‘But you said yes’. We hadn’t had that conversation.

    [53]   T 48.14-24.

    Accused’s Text Message

30. The accused sent a text message to JB at 6:56am that morning, in the following terms:[54]

    Fuck Jess I feel actual terrible but you have to know that this is not how I wanted it I’m seriously not like that! I get that you don’t remember anything and I would not of done anything without your saying. I hope we can sort this out because talking to you means a lot to me and I enjoy it! I don’t want it finish like this! I wouldn’t show you off to all my mates. It’s very rare I get this excited over talking to someone. Reply or don’t just know that I truly am sorry and I never wanted you to feel this way!

    [54]   Exhibit P1, last page.

31. This was the last communication between JB and the accused.

    What Happened Thereafter?

32. JB gave evidence that after the accused left, she had a very long shower and then caught an Uber to her parents’ house at Mitcham. She could not stop crying. She sent a message to her friend to say she could not come to her birthday party.[55] Although the evidence is somewhat unclear on this point, at some stage during the morning, JB became aware that her sister was at home, in the unit.

    [55]   Exhibit P5.

33. After JB returned home from her parents’ house, she had another shower and washed the clothes she had been wearing and the towels. A friend, Damien, messaged her asking if she wanted to catch up. He came over, they watched a movie together and had some food. He left around 4:00pm. She then went back to her parents’ house, as her sister was not home and she did not want to be alone. She described herself as a mess and very emotional. When she got home that night, she had another shower and went to sleep on the sofa, as she could not face sleeping in her own bed.[56]

    [56]   T 26.26-27.35.

34. The next morning, as was her Sunday routine, JB went to get a coffee and a croissant. She then drove to visit her parents, but on the way, was overcome with emotion, so she pulled the car over. She cried for a while, and then called the police.[57]

    [57]   T 27.36-28.8.

    Complaint Evidence

35. The audio recording of JB’s telephone call to police was admitted as complaint evidence.[58] JB started the conversation by enquiring what she needed to do to report an assault which happened on Friday night. She can be heard crying. The following conversation ensued:[59]

    Featherstone     Ok alright so umm without wanting to you know delve too hard or too far was it were you raped or was it umm something else?

    [JB]I think I was raped

    Featherstone     Ok so you’re not, were you drugged or you’re not sure

    [JB]I woke up and he was having sex with me

    [58]   Exhibit P6. A transcript of that recording is MFIP7.

    [59]   MFIP7 at lines 15-18.

36. ASO Featherstone asked JB if she had told anyone else about what had happened and she said, no. She explained the incident occurred after a work show. She said she had been drinking but that she remembered everything. When asked if she could remember going to bed, she said:[60]

    [JB]Yeah I remember going to bed and he had tried to put his hand on like in my bra and I said no and I was like we’re not doing that and then I fell asleep and then I woke up and that was what was happening.

    [60]   MFIP7 at line 60.

37. JB explained that she had not told the accused to stop. She said she did not know what to do as he was a lot bigger than her and she was scared, so she just pretended she was asleep.[61]

    [61]   MFIP7 at lines 66-68.

38. ASO Featherstone asked JB if she had any injuries. She said that she had a weird bruise in her eye and it was bloodshot, as the accused had put his finger in her eye during intercourse. She said, ‘my right breast is really sore and my throat hurts. I think he was holding my throat at one stage’.[62]

    [62]   MFIP7 at line 102.

39. In evidence, JB said that she had not told her sister about the alleged offending on the Saturday morning because she was having almost ‘an out of body experience’. She said it did not feel real and she did not know what to say.[63] She had not told her parents because, ‘I didn’t know how to say that, I hadn’t processed what happened.’[64]

    [63]   T 32.16-22.

    [64]   T 27.24-25.

40. In cross-examination, JB was asked what she had meant when she told ASO Featherstone ‘I think I was raped’. She gave the following evidence:[65]

    A.This was the first person that I had spoken to about it and it was the first time that those words had kind of left my mouth and it was very confronting, even having to tell someone over the phone what had happened, so that’s just how I said it.

    Q.Were you unsure at that point whether you’d actually - there’d been an act of sex.

    A.As in if it had occurred at all?

    Q.Yes.

    A.No.

    [65]   T 51.29-38.

41. As to why JB had told ASO Featherstone, ‘I think he was holding my throat at one stage’, if she had a clear recollection of waking to the accused having sex her and with one hand holding her throat, JB said she was sure that had happened and was unsure why she had used that terminology.[66]

    [66]   T 52.26-53.8.

    Yarrow Place

42. Arrangements were made for police to attend JB’s home but that did not eventuate. Instead, JB attended the police station and thereafter attended at Yarrow Place Rape and Sexual Assault Service, where she underwent a physical examination performed by Ms Markham, Registered Nurse.

43. Both JB and Ms Markham gave evidence about that examination, which was undertaken between 9:40pm and 10:30pm on Sunday, 13 December 2020.[67]

    [67]   T 88.23-27.

44. JB gave a history over the telephone prior to being physically examined. Ms Markham described this as a full body examination, albeit guided by the history provided by JB.

45. Ms Markham took photographs to document various bruises and other injuries she observed on JB. These photographs were tendered as Exhibit P8. By reference to those photographs, the following injuries were observed:

    ·a cluster of red petechial spots (very small pinpoint bruises) spanning 3 cm in height on JB’s back.[68] Ms Markham explained that such bruises could be caused by blunt force trauma, such as a forceful impact with an object such as furniture, the ground or a body part.[69]

    ·Redness within JB’s left eye, but with no associated external bruising of the eyelids or face.[70] Ms Markham said this ‘could be’ consistent with JB having been poked in the eye.[71]

    In cross-examination, Ms Markham agreed that this presentation was also consistent with JB having done a lot of crying. She said there were other potential causes, such as strong sneezing, vomiting, strangulation, irritation of the eye by sand or grit, or simply non-specific inflammation.[72]

    ·1.0 cm x 0.7 cm purple bruise on JB’s left inner arm near her elbow.[73]

    ·3-4.5/5 cm pink/red linear marks on JB’s stomach.[74] Ms Markham gave evidence that these marks could have various causes, including blunt force trauma or pressure, clothing or fingernail scratches.[75]

    ·3 cm x 5 cm purple/grey/brown bruise on JB’s right outer thigh.[76]

    [68]   Exhibit P8 at images 2-4.

    [69]   T 87.15-17.

    [70]   Exhibit P8 at images 5-8.

    [71]   T 87.28-30.

    [72]   T 92.27-93.2.

    [73]   Exhibit P8 at images 9-11.

    [74]   Exhibit P8 at images 12-14.

    [75]   T 88.36-38.

    [76]   Exhibit P8 at images 15-17.

1. JB gave evidence that she did not have (and/or was unaware of having) any of these injuries/bruises prior to the alleged offending.[77]

   [77]   T 29.6-30.8.

2. Ms Markham said that during the examination, JB complained of ‘non- specific’ tenderness upon palpation/touch on the right outer thigh (in the area of the bruise depicted in images 15-17), in the right upper chest/breast area and on the left side of her neck. Ms Markham did not photograph those latter two areas as no bruises or injuries were observed in those areas.[78]

   [78]   T 89.7-90.6; T 91.16-28.

3. In cross-examination, Ms Markham agreed that a potential cause for tenderness in the neck may be the result of sleeping poorly or the neck being on an awkward angle during sleep, for example after sleeping on a couch.[79]

   [79]   T 91.29-35.

4. As to the bruises she did observe, Ms Markham confirmed it was not possible to ‘age’ those bruises with any degree of certainty, nor estimate the force necessary to create those bruises. She agreed with a proposition that bruises that arose from the one incident may age or discolour at different rates and further that multiple bruises which appear similar in discolouration may have been sustained at different times.[80]

   [80]   T 91.36-92.10; T 93.3-15.

5. Ms Markham examined JB’s external genitalia and conducted an internal examination of the vagina. Both the labia majora and labia minor were tender. Ms Markham gave evidence that such tenderness may be indicative of trauma, or infection or another disease process, however she observed no objective signs of vaginal infection.

6. No internal injuries were noted. The absence of any such injury is a neutral finding, in the sense that it does not assist to determine whether JB had engaged in non-consensual or consensual sexual activity.[81]

   JB’s Level of Intoxication

   [81]   T 90.7-91.14.

   JB’s Evidence

7. JB gave evidence that she consumed about six glasses of rose and two shots, both containing Baileys, while at the Edinburgh Hotel.[82] She did not give any evidence as to precisely when those alcoholic drinks were consumed. JB gave evidence that lunch was booked for 1:00pm and that she arrived at the hotel at about that time. She did not say when she started drinking. She left the Edinburgh Hotel around 8:15pm.

   [82]   T 11.38-12.9

8. JB also gave evidence that she consumed a quantity of cocaine at around 5:00pm.[83] She gave no evidence as to how much cocaine she consumed, how she consumed it, or whether she was a first time, irregular or regular user of that drug.[84]

   [83]   T 19.8-11.

   [84]   Noting Dr Musgrave’s evidence proceeded on an assumption, not otherwise established on the evidence, that JB had consumed ‘a line’ of cocaine between 5:00pm and 6:00pm that day.

9. Upon arriving at Casablabla, she had two to three sips of a sloe gin, which she did not like, and a couple of sips of sauvignon blanc.[85]

   [85]   T 11.38-12.9; T 13.26-36.

10. As to how she felt when she was at Casablabla, in terms of her level of intoxication, JB said, ‘I would say I was a bit tipsy, I was having a good time, but I wasn’t drunk’.[86] She said there was no change in her level of intoxication after she arrived home at the unit.[87] She denied experiencing any ‘gaps’ or ‘black spots’ in her memory of what had occurred that evening.[88]

    [86]   T 14.1-2.

    [87]   T 15.4-7.

    [88]   T 15.8-10.

    Mr Derrick and Ms Scowcroft

11. As at Friday, 11 December 2020, Mr Derrick and Ms Scowcroft were work colleagues of the complainant. Both were present at the Edinburgh Hotel and at Casablabla, with the complainant, on the day prior to the alleged offending.

12. Mr Derrick confirmed that he arrived at the Edinburgh Hotel at around 4-4:30pm, as he had attended a farewell function, earlier that afternoon. He remained at the Edinburgh Hotel, where the Bedford Phoenix Christmas party was being held, until around 8:00pm.

13. Mr Derrick gave evidence that at about 8:00 pm he, JB, Ms Scowcroft and another colleague, Jessemy, caught a cab into the city to Casablabla.

14. Mr Derrick was asked to estimate the complainant’s state of sobriety at the time they left the Edinburgh Hotel, on a scale of one to 10, if one was stone-cold sober and 10 was falling over drunk. He said JB’s level of sobriety was ‘say 5 to 6’ and that she had no difficulty walking or talking.[89]

    [89]   T 56.33-57.3.

15. Mr Derrick was not asked at all about his own level of sobriety and/or whether he had consumed any alcohol and if so how much, as at the time he left the Edinburgh Hotel, and/or thereafter. He was not asked what, if any, alcohol he saw JB consume at the Edinburgh Hotel.

16. Mr Derrick confirmed that after arriving at Casablabla, Jessemy was very drunk and that JB put her in a cab to go home.

17. He recalled JB ordering a drink at Casablabla that she did not finish, being either a gin or a vodka. He said she also drank some water that was on the table.

18. Mr Derrick and the complainant left Casablabla together in an Uber at around 10:15pm. The complainant was dropped home first and Mr Derrick continued the journey in the Uber to his home. Mr Derrick estimated JB’s level of intoxication at that time at four to five on the same scale.[90]

    [90]   T 58.19-22.

19. Ms Scowcroft gave evidence that her last day of employment with Bedford Industries was on 11 December 2020 and that there was a farewell function for her ‘that day, that evening’.[91] There was another function that same day at the Edinburgh Hotel. She arrived at the Edinburgh Hotel at approximately 2:30pm and was late arriving as she had to finish some work.

    [91]   T 60.36.

20. Ms Scowcroft remembered seeing JB at the Edinburgh Hotel and confirmed that she had caught an Uber to the city with JB, Mr Derrick and Jessemy at around 8:15pm. She was not asked what, if any, alcohol she saw JB consume at the Edinburgh Hotel.

21. As to her observations of JB’s sobriety at the time they left the Edinburgh Hotel, to travel to the city, Ms Scowcroft said: ^[92]

    [JB] was coherent, but we had been drinking, so she was intoxicated as, as in drinking, but coherent, yep.

    [92]   T 61.33-34.

22. On the one to 10 scale, she estimated that both she and JB were a five.

23. Ms Scowcroft confirmed that upon arriving at Casablabla, JB helped Jessemy get a taxi home, and then returned to Casablabla. She could not remember seeing JB drink any alcohol while at Casablabla.

24. Ms Scowcroft was the first of the group to leave Casablabla. As to JB’s level of sobriety at that point in time, she said: ‘She was fine. The same. No different’.[93]

    [93]   T 62.33.

25. In cross-examination, Ms Scowcroft was asked whether, while they were at Casablabla, the complainant had mentioned to her that she was going to be meeting up with a guy she had been chatting to on Tinder. She agreed that there had been some talk about it. She said: ^[94]

    I don’t remember [JB] telling me directly, I just remember the boys turning up and then I enquired who that was.

    [94]   T 63.3-5.

26. In re-examination, Ms Scowcroft said she did not know who those boys were but that JB seemed to know them.[95]

    [95]   T 63.7-13.

    Expert Evidence

27. During JB’s examination at Yarrow Place on Sunday, 13 December 2020, a urine sample was taken at 9:40pm and a blood sample was taken at 10:22pm.[96]

    [96]   T 86.27-36.

28. Dr Ian Musgrave, an expert pharmacologist, gave evidence that these samples were received by the Forensic Science Centre on 23 December 2020 and analysed fairly shortly thereafter.

29. No alcohol was detected in the urine sample, but cocaine and specifically the cocaine metabolite, Benzoylecgonine, was detected, as was Phentermine (an anti-obesity medication) and the antibiotic, Trimethoprim.[97]

    [97]   T 69.3-37.

30. Dr Musgrave described cocaine as a potent, naturally occurring central nervous stimulant which was rapidly absorbed upon consumption. He stated that typically concentrations in the blood would peak within 15-19 minutes after administration, and that the time it took for the drug to come down from that peak, such that the dose in the blood would drop by 50%, was around 0.7-1.2 hours, albeit this would vary amongst individuals depending upon their metabolisms.

31. JB’s blood contained approximately 0.2 mg of Phentermine per litre and an unstated quantity of Trimethoprim but no cocaine.

32. Dr Musgrave gave evidence that the metabolite in cocaine could be detected in the blood for at least 48 hours post-consumption and in the urine after several days. As such, the analyses were consistent with JB’s history of having consumed cocaine between 5:00pm and 6:00pm on 11 December 2020.

33. There is no evidence as to JB’s precise blood alcohol reading as at 11:00pm on 11 December 2020. However, Dr Musgrave was asked to provide an estimate of that blood alcohol reading, based on several assumptions.

34. Dr Musgrave was asked to assume that JB arrived at the hotel around midday that day, had lunch and drank about five or six standard glasses of rose wine and two shots of an unknown drink containing Baileys liquor. He was also asked to assume that at Casablabla, JB did not eat very much, as she felt quite full from lunch, that she had some sloe gin which she did not finish and two sips of sauvignon blanc wine. He assumed that she arrived home at about 11:00pm, feeling merry but not drunk. He assumed that she did not consume any further alcohol thereafter.

35. Based on those assumptions, Dr Musgrave expressed the opinion that JB’s blood alcohol content as at 11.00pm on 11 December 2020 may have been 0.06% grams. However, this depended on the timing of JB’s consumption of alcohol and food. Dr Musgrave agreed with a proposition put to him in cross-examination, that depending on how much food JB consumed, the reading may have been closer to around 0.08% grams at 11:00pm. He said:[98]

    Yep. Again, I’ve calculated both a very conservative estimate assuming, using figures from situations where people have consumed alcohol immediately after a meal, but with this situation, it’s not clear where the alcohol was consumed in terms of the meal, so if the stomach is largely empty by the time you’ve taken the second drink, the effect of food will be less, so I’ve gone for an extremely conservative estimate but, nonetheless, even using extremely conservative estimates, there is still a substantial amount of alcohol on board.

    [98]   T 79.34-80.6.

36. Dr Musgrave agreed with a proposition that people often underestimate their actual level of impairment by way of intoxication. He said:[99]

    A.Yes. People are, if I may say so, notoriously bad at estimating their degree of impairment and masking it from other people. I’ve referenced, in particular, a motor vehicle accident where the respondent felt not to be drunk, their companions did not think they were drunk, but they were substantially over the driving limit. So people’s awareness of exactly how much alcohol they have on board is not necessarily very good. So again, the statement that [JB] felt merry but not drunk would be consistent with the kinds of concentrations of alcohol that I’ve calculated.

    Q.Alcohol then acts also as a disinhibiter.

    A.It does have disinhibition but it also is a sedative. So these effects are in opposition and the disinhibition tends to occur with much higher concentrations. So what we potentially see with these kinds of concentrations is people are more likely to have the sedative effects predominating.

    Q.It may also cause people to engaged in behaviours that they might well not sober.

    A.It could potentially do this.

    [99]   T 80.13-33.

37. In re-examination, Dr Musgrave was asked when he would expect to see disinhibition in people who had consumed alcohol. He said he would have expected to see that at a concentration of 0.1% grams as opposed to 0.06% grams. He noted that for those people who had consumed both alcohol and cocaine, it was more likely that at those levels, one would see a sedative effect rather than a stimulant effect. He said:[100]

    I would expect to see stimulant effects occurring earlier in the night and again, this is when [JB] had been taking the cocaine, the combined effect of cocaine and alcohol would give you a substantial stimulant effect, but then as the stimulant effect of cocaine comes down, I would expect that to also and you start going into crash phase, I would expect that to also be influencing any stimulant effect from alcohol and that the inhibitory effect, the sedative effect, will begin to predominate.

    [100] T 81.10-19.

38. Dr Musgrave was not asked, either in examination-in-chief or cross-examination as to the impact of the combination of both alcohol and cocaine on a person’s memory.

39. He was not asked as to the potential impact of the consumption of either the antibiotic, or the weight loss medication, when taken in combination with alcohol and cocaine.

    Impact of cocaine/alcohol on sleep

40. JB gave evidence that she was generally a fairly heavy sleeper. By way of example, she said she would not wake when her sister, who worked night shifts, left late at night and slammed the door, nor would she wake in the morning if her sister was doing the washing.

41. JB gave evidence that when she arrived home from Casablabla, she felt exhausted. After falling asleep, she only woke when the accused was on top of her, already engaging in penile vaginal sex with her, and at a time when her left leg was being held by him, over his shoulder.

42. Dr Musgrave’s evidence as to the impact of cocaine on sleep and sleep cycles was led by the prosecution to explain why it was that JB had only woken at that particular point in time and not earlier.

43. Dr Musgrave was asked about the general effect of cocaine on a user. He explained that although cocaine was a stimulant, its euphoric effects did not last long and because cocaine was rapidly absorbed, they were typically felt soon after use. He explained that those effects could last as long as 90 minutes or as short as 15 minutes, during which a user may feel euphoria and alert. However, once those effects fell away, a user may go into what he described as a ‘crash state’ where they became the opposite of stimulated, that is sleepy or fatigued.[101]

    [101] T 71.1-14.

44. Dr Musgrave agreed with a proposition that the complainant’s description of feeling exhausted between 11:00pm and 12:00am was consistent with her coming down from the effects of cocaine consumed between 5:00pm and 6:00pm that evening.

45. As to whether cocaine was a disinhibitor, he said that it was not in the same sense as alcohol, with its effect mostly in increasing alertness, euphoria and the ability to refine motor skills, initially.[102]

    [102] T 71.20-24.

46. Dr Musgrave gave evidence as to how a normal sleep pattern may be impacted by the use of alcohol and cocaine.

47. He explained that there were several basic stages of sleep, known in the literature as ‘sleep stage 1, sleep stage 2 and sleep stage 3’.[103]

    [103] T 72.7.

48. He explained that sleep stage 1 is the very early initiation of sleep, sleep stage 2 is a deeper sleep and sleep stage 3 is the deepest sleep, during which it becomes hard to wake a person. He said interspersed between stages 2 and 3 was REM sleep, associated with rapid eye movement, when most dreaming occurred. He explained that although it was theoretically easier to awake in REM sleep, that stage was also associated with paralysis of the body. That is where you can be conscious but completely unable to move.[104]

    [104] T 72.19-29.

49. Dr Musgrave said that alcohol was well known to affect sleep state as it changed the proportion of deep sleep to REM sleep, increasing the amount of deep sleep and reducing the amount of REM sleep. He noted that deep sleep was very important for regulating the body after fatigue, whereas REM sleep was involved in memory consolidation.[105]

    [105] T 72.32-73.20.

50. Dr Musgrave agreed with a proposition put to him by the prosecutor that if a person’s sleep was divided into two halves, the first part of that sleep would include more deep sleep and he said that this would be made deeper by the effect of alcohol. As to the ability for someone to be aroused when in a deep sleep, Dr Musgrave stated that this could be difficult to quantify. He made reference to a study where face masks were used to interrupt people’s breathing and it was found that it took 30% longer to wake someone by interrupting their breathing, when they had roughly the equivalent of a standard drink before going to sleep.[106]

    [106] T 73.24-30.

51. As to the effect of cocaine on sleep, Dr Musgrave stated that this would depend on when the cocaine was taken, and whether the person was dependent on cocaine. As stated previously, there was no evidence from JB as to whether she was a regular or first-time consumer of cocaine, nor any evidence as to precisely how much cocaine she consumed.

52. However, on the history provided to him, Dr Musgrave expressed the opinion that the stimulant effects of cocaine, which would otherwise interrupt sleep, would have been well over by the time JB went to bed and that it was likely she would have been either into the fatigue phase or there would have been no adverse effect on her sleep.[107]

    [107] T 73.32-74.7.

53. He agreed that if JB was already exhausted, the impact of alcohol on her already fatigued state would induce sleep faster.

54. Dr Musgrave agreed that the circumstances of the offending as described by JB, namely that she was in a deep sleep and awoken midway through an act of sexual intercourse, were made more plausible if that had occurred in the first half of her night of sleeping and less plausible if that occurred in the second half of that same night’s sleep.[108]

    [108] T 75.27-33.

55. In cross-examination, Dr Musgrave confirmed that the timing of the crash stage, which occurred after the euphoric stage, would vary considerably and he simply could not say with absolute certainty whether JB was in a crash phase as at 11:00pm or 12:00am that night, however it was within ‘the range of possibilities’.[109]

    [109] T 77.1-29.

56. Dr Musgrave agreed that other behavioural indicators associated with cocaine use (for example increased acuity and increased attention span) also decayed at roughly the same rate as the euphoric state caused by such use. As such, he would have expected those things to also have been decayed completely by roughly 11:00pm (assuming cocaine use at 5:00pm to 6:00pm), however he stated: ‘I am not sure what the ability to discriminate tasks would be in this particular state’.[110] By way of explanation he gave the following evidence:[111]

    A.Yes. So for example, there’s a range of different behavioural effects of cocaine. You focussed on euphoria because that’s the recreational effect most people want, but it also comes with the ability to have increased reaction time, an ability to maintain attention, an ability to discriminate between closely related events. So in terms of going to sleep or being disturbed in your sleep, the ability to pay close attention to something is probably not going to affect sleep. Even if it that effect was to occur four hours, five hours after the use of cocaine, so or to be able to discriminate between two closely occurring events. But again, the behavioural effects of cocaine, not just euphoria, decay on roughly the same rate. So it’s very implausible that any other behavioural effect will have lasted to the time of sleep initiation.

    Q.So you’d anticipate, then, by 11, 12 p.m. on our hypothesis -

    A.Yeah.

    Q.- that any of the euphoric, or stimulant, or alertness effects have certainly decayed.

    A.Yes.

    Q.In terms of if someone is then in a crash or a fatigue stage post cocaine use, does that have an impact in terms of a person’s acuity or ability to process information.

    A.The fatigue states would reduce your ability to process information.

    [110] T 78.7-9.

    [111] T 78.26-79.15.

    Accused’s Record of Interview

57. Police attended the accused’s home at Blakeview on Sunday, 13 December 2020 at around 8:53pm and arrested him on one count of rape. The accused voluntarily participated in a record of interview. He was told the allegations related to him seeing JB towards the end of Friday night or the early hours of Saturday morning and he agreed that he had seen her at that time.

1. When asked to explain what had happened, he said: [112]

   Um I got there um we went to bed and um we started making out and we had sex.

   [112] MFI P11 at line 54.

2. The accused told the police that he had matched with JB on Tinder and that they had been talking for a few weeks. He said he was supposed to see her ‘last night’, but it was changed to the Friday night. When asked what arrangements were made, he said: ‘ah just that I go around there and stay cos we were both pretty intoxicated’.[113]

   [113] MFI P11 at line 62.

3. He said that when he arrived at JB’s home, he went into her room and that they lay in bed, cuddled, kissed and talked. When asked what they had talked about the accused said:[114]

   Off the top of my head I can’t remember just stuff about her night and her work show and stuff like that and what I did that night.

   [114] MFI P11 line 70.

4. The accused was asked how intoxicated he was and described himself as ‘pretty drunk’.[115] When asked for further details as to whether he was moderately intoxicated, or mildly intoxicated he described himself as ‘highly I mean I couldn’t drive’.[116]

   [115] MFI P11 line 72.

   [116] MFI P11 line 76.

5. He was asked if he could remember everything that had happened and he said ‘not really no’.[117] After some contemplation, he recalled that JB was wearing a jumper and shorts when he first arrived.[118]

   [117] MFI P11 line 78.

   [118] MFI P11 line 80.

6. The following exchange occurred:[119]

   [119] MFI P11 lines 81-90.

   Q.Okay alright because she says that she had made it clear to you that sex was never going to happen that she wasn’t the type to meet on the first date and have sex

   A.She did say that yes

   Q.She did say that?

   A.Yes this was last week sometime

   Q.Okay so what changed

   A.Nothing I just read the situation

   Q.So how did you read the situation mate tell me what made you think that she wanted to have sex

   A.I asked her

   Q. Wanted you to have sex

   A.I asked her and she said yes I asked her to be sure because she said she wasn’t the first time and when I said are you sure and she said yes[120]

   [120] The precise words used by the accused in his response at line 90 were difficult to hear and the transcript MFI P11 is not completely accurate.

7. It was put to the accused that at one stage he had placed his hand inside JB’s bra and touched her breasts. The accused said he could not recall that, nor could he recall that thereafter she had told him ‘we’re not going to do that’ or that he had replied that it was okay.[121]

   [121] MFI P11 lines 95-98.

8. The police told the accused of JB’s allegation, namely that she woke up to find him on top of her having penile vaginal sex. He said: [122]

   To my knowledge she was conscious the whole time.

   [122] MFI P11 line 104.

9. By way of further elaboration he stated: [123]

   Well she was well pushing back on me like when you do when you have sex.

   [123] MFI P11 line 108.

10. The accused told the police that while they were having sex, his hands were on JB’s side in order to hold himself up. It was suggested to the accused that when JB woke up, one of his hands or thumb was pressed into her eye socket. He said, ‘that doesn’t sound like something I’d do’ and ‘I don’t recall that’.[124]

    [124] MFI P11 lines 118-120.

11. It was also suggested to the accused that at one point in time, one of his hands was on JB’s neck, grabbing it really tightly, to the point that JB was struggling to breathe. The accused said that this was not something that he would do and ‘I’m not a violent type of person’.[125]

    [125] MFI P11 lines 123-126.

12. He agreed that while having sexual intercourse with JB he had ‘hooked her right leg up onto her shoulder’ (my emphasis).

13. He maintained that to his knowledge JB had consented to having sex with him. He said ‘I asked her and she said yes’.[126]

    [126] MFI P11 line 136.

14. When asked by police to explain how he asked her, he said: ‘I said hey are you sure you want to do this and she said yes’.[127]

    [127] MFI P11 line 138.

15. The accused explained that he had not gone to JB’s house with the intention of having sex with her. When asked how it then transpired that they ended up having sex, he said: [128]

    Just the way that we were cuddling and I just read the situation as if she wanted it. That she was into it.

    [128] MFI P11 line 146.

16. When asked to explain how he had read the situation he said:[129]

    A.Well she had her hand on the inside of my thigh and she

    Q. Right

    A. And like yeah she was rubbing my leg and stuff and (cough) we were making out and then yeah I um put my hand down her pants and she didn’t stop me or say no or anything because if she did I wouldn’t have proceeded.

    [129] MFI P11 lines 150-152.

17. He said that JB took her pants and her shorts off together and that they were on the bed. He had not worn a condom as ‘there wasn’t an agreement to wear’. He said ‘she didn’t say anything’.[130]

    [130] MFI P11 lines 163-168.

18. The accused denied that he had taken the liberty to have sex with JB while she was asleep. He said he was sure that she was awake because she was kissing him back.[131]

    [131] MFI P11 lines 177-182.

19. The accused was asked: ‘and had you been asleep and woken up to have sex or were you awake you and her awake the whole time’. He answered: ‘I couldn’t tell you’.[132] He said that he was in a state where he was ‘half asleep sort of thing’.[133]

    [132] MFI P11 lines 186-187.

    [133] MFI P11 line 189.

20. As to what had happened the next morning, the accused said:[134]

    She yeah she woke up and I could tell there was something wrong with her and I asked her and then we spoke about it um and then I said just what I told you that I asked her and she said it doesn’t sound like something she’d do and I mean yeah I’m being honest with you I’m not going to lie I’m not type sort type of person I’m not going to force myself onto you and you didn’t want it.

    [134] MFI P11 line 170.

21. He said he asked JB whether she wanted him to leave and that she said yes, so he left. He then sent her a message apologising because he felt bad because she was upset.[135]

    Accused’s Evidence

    [135] MFI P11 lines 172-176.

    First Meeting – JB

22. The accused gave evidence that after matching on Tinder with JB, he communicated with her via several social media platforms. He described that communication as flirtatious and fun with banter going backwards and forwards. There was chat to the effect that he wanted a girlfriend and she was saying that she wanted a boyfriend.[136]

    [136] T 97.26-28.

23. The accused gave evidence that at one stage, while messaging, JB had told him that she was not into one-night stands and wanted something more long term. He said that he had responded by saying ‘I like a challenge’. When asked what he meant by that, he said: [137]

    Well, I was looking for a relationship myself, so I wanted to kind of put in the long game sort of thing. The chats between us were going good, so I thought this is something I want to pursue.

    [137] T 98.9-12.

24. He explained that by ‘pursue’ he meant that he wanted to pursue a relationship with JB, as her partner.[138]

    [138] T 98.15.

25. The accused gave evidence that on Friday, 11 December 2020 he had been at a pub at One Tree Hill with his friends drinking alcohol. When asked how much alcohol he had consumed before going to JB’s house he said: ‘from memory 8 or 9 pints, I think’.[139] He was unable to say over what period this was consumed, but said it was ‘over most of the day’.[140]

    [139] T 99.12.

    [140] T 99.15.

26. In cross-examination, the accused said he had consumed between seven and eight pints that day. He said that this was ‘just a rough estimate’.[141] He denied that he could have had as many as nine or 10 pints, ‘because I wouldn’t have drunk that much’.[142]

    [141] T 117.29.

    [142] T 117.20.

27. The accused gave evidence that final arrangements were made for him to meet up with JB at ‘around 8-ish’ and that he had arrived at JB’s house, via Uber, at around 11, 11:30pm.[143]

    [143] T 99.22-24.

28. As to his level of intoxication at that time, he rated it at about a six out of 10 on the scale.

29. The accused gave evidence that it was his intention that when he arrived, he and JB would just sit and chat and talk because it was the first time they had met.

30. Upon his arrival, JB met him at the end of the driveway, hugged him and escorted him into her house. They went inside the unit into a main living area. JB offered him a drink; he said no and she then led him into her bedroom and shut the door.[144]

    [144] T 100.8-15.

    Talking in the Bedroom

31. The accused gave evidence that once they were in the bedroom, he sat on the end of the bed closest to the door and JB sat on the top end on the right-hand side. He said they chatted about how her night was and he asked her how her work show was. There was no discussion about him staying over or leaving at any stage. He denied offering JB cocaine.[145]

    [145] T 100.16-29.

32. In cross-examination, the accused maintained that despite being in JB’s bedroom, he was not thinking that they might end up having sex. He said he just wanted to sit and chat with her.[146]

    [146] T 111.5.

33. The accused gave evidence that after about 20 minutes, JB hopped up, took her jumper off, turned out the light and got into bed.[147] He put his keys, phone and wallet on the bedside table, took off his shirt and got into bed. He said he was wearing his shorts and underwear. JB was under the covers but he was still on top of the covers.[148]

    [147] T 100.34-35.

    [148] T 101.13.

34. The accused said that he then leant in to kiss JB, but she pushed him away and that he had said ‘Ok, no worries’.[149]

    [149] T 101.15-16.

35. He said there was some further general chat about what she and he were doing the next day and that he then got under the covers, they both lay there and chatted some more. They had been facing each other but they then rolled over.

    The Allegations

36. The accused said that after about 20 minutes trying to get to sleep, he rolled back over and put his arm over JB. He said: [150]

    She wiggled her bum towards me. I’ve started kissing her neck. She turned her head around and we started making out.

    [150] T 101.29-32.

37. He said they were kissing each other on the lips.

38. In cross-examination, the accused was asked why he had put his arm over JB, given she had pushed him away earlier when he tried to kiss her. He said that was just to cuddle her. He agreed he did not tell that to the police.[151]

    [151] T 118.17-30.

39. As to what happened next, the accused gave the following evidence: [152]

    I hopped on top and started having dry sex, as such as we continued to kiss.

    [152] T 101.37-38.

40. At this stage he still had on his shorts and underwear, as did she.

41. The accused said that he then asked JB if she wanted to have sex and that she replied with ‘yes’. He then said, ‘are you sure?’ and she said ‘yes’.[153]

    [153] T 102.13-19.

42. In cross-examination, the accused maintained that he asked JB whether she wanted to have sex, when he was on top of her, they were making out, kissing and having dry sex. He agreed he did not say this to the police in his statement. He was asked what he meant when he told the police that he ‘just read the situation’. He explained that when they were in bed, JB had wiggled her butt towards him and was kissing him back.[154] He agreed he had not said that to the police and said he had told the police a ‘short version’.[155]

    [154] T 111.25-26.

    [155] T 111.32.

43. The accused then gave the following evidence:[156]

    Q.What then happened from there.

    A.She took her pants off, I took mine off as such and we had sex.

    Q.Was anything else said once you’d both taken your clothing off.

    A.I just double-checked with her, as it was the first time that we’d met and I know she’d sent me that message, so I just wanted to make sure she was okay with it.

    Q.What happened from there.

    A.We continued to have sex. I lifted her leg up onto my shoulder and just continued to have sex.

    [156] T 102.20-30.

44. The accused denied that the sex was in any way forced, as JB’s vagina was lubricated from the dry sex. He said they were kissing the whole way through. In cross-examination, the accused agreed with a proposition that he had not told the police that they were kissing throughout the whole of sexual intercourse.

45. The accused said he was not wearing a condom. He agreed that he said to JB ‘can I come inside you’. He said JB responded and said ‘yes’.[157] He then proceeded to do so.

    [157] T 103.13-19.

46. He said he then ‘hopped off’, went to the toilet, came back and they both went to sleep.

47. The accused denied having sex with JB at any stage whilst she was asleep, or taking her pants and knickers off while she was asleep. He denied ever having his hand around her throat or his thumb in her eye.[158]

    [158] T 104.22-30.

48. The accused was cross-examined about what he told the police about being half asleep prior to engaging in sexual intercourse with JB. He gave the following evidence:[159]

    [159] T 112.27-113.3.

    Q.So when you were making out, when you were touching her before sexual intercourse, you were half asleep.

    A.No.

    Q.Did you not just say a moment ago that you were half asleep.

    A.At that point I was, yes.

    Q.So were you awake until the sexual intercourse happened, or were you asleep, or you just can’t remember.

    A.I was awake.

    Q.Were you fully awake or half awake.

    A.Half awake.

    Q.Half awake or half asleep.

    A.Isn’t that the same?

    Q.Is it just that you were drunk and you can’t remember.

    A.No.

49. The accused explained that at the point he and JB started kissing, he changed from being half asleep to more awake.[160]

    [160] T 114.15-17.

50. The accused denied having fallen asleep at any time, other than being half asleep. He acknowledged that he had answered ‘yes’ in the record of interview, in response to a question,[161] “Okay and she said you both laid down on the bed. She’s not denying that took place and you both went off to sleep”.

    [161] MFI P11 at lines 99-100.

51. The accused said he was uncertain why he had agreed with that statement if they had not both fallen asleep.[162]

    [162] T 119.6-20.

    The Next Morning

52. The accused gave evidence that the next morning when he woke up, JB was sitting up. He started to stroke her back. He said she looked upset and he did not like that, so he asked her what she was upset about. She then asked him, ‘where are my underwear’. He had replied ‘if you are asking if we had sex, we did’.[163] He said to her, ‘I asked if we had sex. You said yes, we can. I asked you if we can’. In response, JB had said ‘that doesn’t sound like something I would say’. He had responded ‘I asked you if it was okay and you said yes’.[164]

    [163] T 103.34-37.

    [164] T 104.1-7.

53. The accused gave evidence that he then asked JB if she wanted him to leave and she said ‘yes’. He ordered himself an Uber and left. As he left, he sent JB the message reproduced at paragraph 84 herein. He did so because when he had left, JB was upset and he felt bad about that.

54. The accused was cross-examined about what he had said in that message about ‘showing her off to [his] mates’. He explained that he had showed his mates pictures of JB before he met up with her, because she was attractive, he was happy talking to her and he thought something might have come of it.[165]

    [165] T 115.37-116.14; T 117.3-4.

55. As to why he had said, in the message, that he understood that she would not remember what had happened at all, he said ‘she would remember, there’s just certain little things’.[166]

    [166] T 125.1.

56. He said the reason he thought he needed to explain to her that she had had sex was because she had asked him “where” her underwear was. He gave the following evidence:[167]

    Q.So if the question was 'Why don't I have underwear on?', and your answer was, as I understand it, your evidence was - I best turn it up. At p.103 '"Where are my underwear?". What did you say to that? I said "If you're asking if we had sex, we did"' and what I'm asking you is: why go to that topic if all she's saying is she's upset and asking where her underwear is.

    A.Because I asked what she was implying.

    Q.But if she was awake, willing and active in the sex act why would you have to say that.

    A.Because we didn't know where they were in the morning.

    Q.And that's your answer.

    A.Yes.

    [167] T 125.31-126.5.

57. In cross-examination, the accused was asked why, if JB was awake the whole time they were having sex, he had said in that text message ‘I get that you don’t remember anything’. He said, ‘that would be because of the alcohol’.[168]

    [168] T 104.36.

58. As to how drunk he thought JB was, he said ‘she would have been about the same as I was, maybe about a six on that scale’.[169]

    [169] T 104.38-105.1.

59. The accused was asked whether a six on the scale was ‘very drunk’ and he said ‘no, it’s not’. He was then asked why then had he told the police that he was very drunk. The accused gave the following evidence: [170]

    To be honest, when the police came in, there was four of them standing around me, it’s pretty daunting having them standing around and asking you those sort of questions.

    [170] T 105.6-9.

60. In cross-examination, the accused explained that he had been intimidated by the police at his home, as he had never been in a situation like that before.

61. He agreed that he had been too drunk to drive that night but disagreed that he was ‘highly intoxicated’, despite having told the police that.[171] He said he told the police he had been highly intoxicated because he just wanted them out of his house.

    [171] T 108.14-28.

62. The accused was cross-examined as to his memory of aspects of the evening and it was suggested to him that he could not recall much because of the fact he was so intoxicated. For example, the accused could not recall what time he had got home from the pub, or what time he had left home to travel to JB’s house.[172]

    [172] T 106.22-27.

63. The accused disagreed that he could now no longer remember those things because he had had a lot to drink. He denied having any problem with his memory as a result of having consumed alcohol that night. It was put to him, that if that was the case, why had he suggested to JB the following morning, that he was not surprised she had no recollection of them having sex. He said, ‘because of the alcohol in her system. She was the same level I was’.[173]

    Closing Addresses of Counsel

    [173] T 121.5-6.

    Prosecution Submissions

64. The prosecutor acknowledged that JB’s evidence was critical to the prosecution case. He submitted that when I carefully analysed JB’s evidence, I could be satisfied beyond reasonable doubt that she was an honest witness, who had given a frank and compelling account to the court, which should be believed.

65. The prosecutor noted that there was much common ground between the parties on what had occurred in the weeks before the offending, up to and including when the accused and JB were in JB’s bedroom, on the bed, chatting, late on Friday, 11 December 2020. It was only thereafter that the accused and JB’s recollection of events diverged.

66. While being careful not to ask the court to undertake a balancing exercise (that is, asking the court to have a preference for the complainant’s evidence, as compared to that of the accused), the prosecutor submitted that when both accounts were carefully scrutinised, having regard to all of the evidence, the court could be satisfied that there was no reasonable doubt as to the accused’s guilt and that JB’s recollection of the offending was both truthful and accurate.

67. While JB had been drinking, and up front about taking cocaine, she had consistently maintained that she was only a bit tipsy, and not drunk and that she had a complete memory of the day and of the alleged offending. The prosecutor submitted that this was supported by the evidence of both Mr Derrick and Ms Scowcroft, in terms of their observations of JB during the evening and was further confirmed by the fact it was JB who had assisted her drunk work colleague, into the cab at Casablabla. It was submitted that not only was there no evidence as to the potential impact of JB’s consumption of alcohol and cocaine on her memory, she had not been cross-examined on the basis that she was simply too drunk to remember what had occurred that night.

1. The prosecutor submitted that Dr Musgrave’s estimate of JB’s blood-alcohol reading as at around 11:00pm on 11 December 2020 of between 0.06% gm and 0.08% gm was consistent with JB’s own description of her level of sobriety. Further, Dr Musgrave had confirmed that the euphoric effects of JB’s consumption of cocaine would have well and truly worn off by 11:00pm, albeit she may well have been moving into a fatigue stage, consistent with JB’s own recollection of feeling exhausted at that time.

2. The prosecutor noted that there was no dispute that JB had made it clear to the accused that she wanted a relationship and was not interested in a one-night stand. Similarly, there was no dispute that JB had rebuffed the accused’s attempt to kiss her on the bed and made it clear to him at the time that there would no sexual activity. JB had trusted the accused would respect the boundaries she had set. She was enjoying talking to the accused and wanted to continue talking to him. It was submitted that the court should accept JB’s explanation as to why she had taken the accused into the bedroom to talk, that is, due to her concerns about her sister’s feelings of awkwardness, given the circumstances.

3. The prosecutor submitted the court could be satisfied beyond reasonable doubt that from the time JB first saw the accused outside her unit that night, she had no intention of having sex with him and that at no time did that intention change. Further, it was submitted the court could be satisfied beyond reasonable doubt that JB had no intention of having unprotected sexual intercourse with the accused, in circumstances where she was taking antibiotics which she understood may impact on the viability of the contraceptive pill she was taking.

4. The prosecutor asked the court to accept the accused’s evidence in terms of when the act of sexual intercourse took place, that is, around midnight, in the early stage of the complainant’s sleep pattern. He referred to Dr Musgrave’s evidence, which lent support to JB’s claim that at that time she was, in effect, in a very deep sleep, and her body limp, such that she only stirred from that sleep when the accused was already on top of her and already engaging in sexual intercourse.

5. It was submitted that JB’s reaction and response to the offending – that is, one, initially, of fear, and then of confusion, sadness and disbelief, was perfectly understandable and consistent with the offending as she described. JB’s complaint to police was made soon after the offending and at a time when she had been able to process what had happened. Its terms demonstrated consistency of conduct, lending support to her credibility and reliability.

6. It was submitted that JB’s version, a consistent and detailed version, could be contrasted with that of the accused. The prosecutor submitted that when the accused’s evidence, and what he had told the police, was carefully analysed, it was clear that the accused had a very limited recollection of events, which had evolved over time. He urged the court to accept what the accused told the police as to his level of sobriety, that is, that he was ‘highly’ drunk, meaning the accuracy of his account was questionable.

7. Further, it was submitted that the accused’s evidence as to what occurred, after JB turned off the light, was inconsistent with what he had told the police, insofar as his evidence contained important details which he had omitted to tell the police. For example, the accused did not tell the police that he had tried to go to sleep for about 20 minutes and had then put his hand over JB in order to cuddle her.

8. The prosecutor submitted that when the accused had answered ‘yep’ to a proposition made by Officer Billington namely ‘you both went off to sleep’,[174] he was telling the truth. This was consistent with JB’s account that after she turned off the light, she remained asleep until intercourse had already commenced.

   [174] MFI P11 lines 99–100.

9. In addition, it was submitted that the accused’s evidence that JB was conscious throughout the entirety of the sexual intercourse, and an active participant was inconsistent with what he had said in the record of interview. Officer McKenzie had asked the accused, ‘and had you been asleep and woken up to have sex or were you awake and her awake the whole time’, to which the accused had replied, ‘I couldn’t tell you.’[175]

   [175] MFI P11 lines 186–187.

10. In addition, the accused had told the police that he was half asleep at the time, albeit in evidence he claimed to have woken from that half sleep when JB started kissing him.

11. The prosecutor submitted that the court could have little confidence in the accused’s evidence, in circumstances where he had acknowledged to police that he was ‘pretty drunk’, had limited recollection of certain details pertaining to the day and night in question and had provided inconsistent and/or more extensive evidence to the court than he had provided to the police.

    Accused’s Submissions

12. Counsel for the accused warned the court against embarking on a weighing of the evidence of JB and the accused, in the manner as alluded to by the prosecution. He reminded the court that its task was to determine whether the prosecution had established the accused’s guilt beyond reasonable doubt, and that when all of the evidence was considered, and assessed, applying ordinary common sense and experience, the court could not be so satisfied.

13. It was submitted that the accused was an honest witness, who had made numerous concessions against his interests, both in his record of interview and in his evidence. For example, the accused told the police that he knew, from an earlier discussion with the complainant, that she was not the type to meet on a first date and have sex. He had agreed with the proposition put to him by police that while he was having sex with JB, he had hooked her right leg up onto her shoulder. In evidence, he had agreed that while they were on the bed chatting, he had lent in to kiss the complainant and she had rebuked his advances. He acknowledged she had said words to the effect that nothing like that was going to happen.

14. It was submitted that these were significant concessions, which demonstrated that the accused was an honest witness, and inconsistent with him otherwise lying about the circumstances in which he and JB had engaged in sexual intercourse. As such, the court could not dismiss the accused’s account as not being a reasonable possibility, meaning it must return a verdict of not guilty.

15. The court was asked to consider the brevity of the record of interview when considering the prosecutor’s submissions as to purported omissions in that account, as compared to the full account given by the accused in evidence. It was submitted that when the accused’s evidence and presentation to police was considered, the court could be satisfied that he was a straightforward man, who had done his best to be honest and forthright with police. The accused’s honesty could not be used against him to plug gaps in the prosecution case, rather it simply created a reasonable doubt as to JB’s account.

16. Further, the court was asked to consider carefully what occurred in the lead up to the alleged offending and whether that was, in fact, consistent with JB’s evidence that at no (relevant) time was she interested in pursuing a romantic relationship with the accused. It was submitted that when the evidence was carefully considered, the court could not exclude as a reasonable possibility that what JB had done was to reconstruct events, as she regretted the activity she had engaged in.

17. JB and the accused had exchanged flirtatious messages in the weeks before the offending wherein both had made it clear they were interested in a relationship. JB admitted she had seen the extra photographs of the accused that he had on his Facebook profile, that they had exchanged SnapChats and talked, via Facetime, in the hours before their meeting. Counsel for the accused submitted that in those circumstances, the court should have some doubt as to JB’s claim that any prior interest she had in the accused completely dissipated upon seeing him, for the first time in person, outside her unit, as she had had several opportunities to observe his appearance up until that point in time, in any event.

18. It was submitted that JB’s decision to then lead the accused into her bedroom, rather than simply sit in the lounge to talk, and to then take off her jumper, and allow him to sleep in her bed with him, was simply at odds with her insistence that she had no romantic interest in him.

19. JB had admitted to having consumed alcohol and cocaine in the hours before the alleged offending. The court was reminded of Dr Musgrave’s evidence that people regularly underestimated the impact of alcohol on them, and his evidence as to the disinhibiting effect of alcohol. Further, while Dr Musgrave’s evidence supported the possibility JB was in a ‘crash state’, he had also given evidence as to the impact of such a state on a person’s ability to discriminate tasks, that is, to process information. Counsel for the accused submitted this may well provide an explanation as to why JB answered the accused’s questions in the way he claimed she did, that is, by saying yes in answer to the question whether she wanted to have sex, and yes in answer to whether she was happy for him to ejaculate inside of her.

20. Further, counsel for the accused emphasised JB’s evidence, that when she woke in the morning, she asked the accused ‘why’ she had no underwear on. He submitted there was simply no reason for JB to ask that question if, as she now claims, she knew the accused had engaged in sexual intercourse with her. Further, he submitted that JB’s explanation for asking the question, that is, in order to (effectively) confront the accused, was at odds with her claim of otherwise being petrified of him and what he could do to her.

21. While it was conceded that aspects of JB’s initial complaint could be viewed as being consistent with her account, counsel for the accused emphasised the terminology used by JB. That is, ‘I think I was raped’ and ‘…my throat hurts. I think he was holding my throat at one stage’, as compared to her certainty of the same, in evidence.

22. Finally, it was submitted that the evidence of Ms Markham was neutral and did not advance the prosecution case. It was submitted the bruises identified by JB could not be aged (and therefore linked to the alleged offending), nor did they appear consistent with JB’s description of the offending in any event. Further, the fact JB’s left eye was red, was equally consistent with the effects of sustained crying.

23. Counsel for the accused acknowledged that JB appeared genuinely convinced that the offending, in the circumstances she described, had occurred. However, he submitted that when JB’s evidence was closely analysed, the court must be left with a reasonable doubt as to the reliability of that evidence.

24. In all of the circumstances, he submitted the court must have a reasonable doubt as to the accused’s guilt and therefore must return a verdict of not guilty.

    Observations and Findings

    Lay and Expert Witnesses

25. Before addressing the evidence of JB and the accused, it is pertinent to make some observations as to the evidence of the other lay and expert witnesses called by the prosecution.

26. Mr Derrick and Ms Scowcroft gave evidence as to their observations of JB in terms of her level of intoxication, in the hours immediately before the alleged offending.

27. Both Mr Derrick and Ms Scowcroft were honest witnesses, endeavouring to give an accurate account of their recollection of events. They each described JB as being moderately intoxicated and capable of walking, talking and assisting another more drunken colleague into a cab.

28. However, Mr Derrick gave no evidence as to his own level of sobriety, in order for his reliability to be properly assessed.

29. As for Ms Scowcroft, I have some doubts as to the reliability of her evidence. Ms Scowcroft could not recall seeing JB drink at Casablabla, when, on JB’s evidence, she ordered two alcoholic drinks. Perhaps more importantly, when asked in cross-examination if JB had told her about her plans to meet up with the accused that night, Ms Scowcroft had a recollection of ‘the boys turning up’ and of JB talking to them.[176] The impression I gleaned from Ms Scowcroft’s evidence was that she thought the accused was one of those boys. If any ‘boys’ did turn up, this was not mentioned either by JB or Mr Derrick.

    [176] T 63.1-13.

30. My impression from hearing Ms Scowcroft’s evidence was that she had a limited recollection of the occasion, entirely consistent with her own evidence that she was inebriated.

31. As such, I have placed only limited weight on the evidence of Mr Derrick and Ms Scowcroft.

32. Ms Markham is a very experienced registered nurse and I have no hesitation in accepting her evidence as being both credible and reliable. While some of the injuries she observed on JB were potentially consistent with JB’s allegations, Ms Markham readily acknowledged the difficulties in attributing an age (or specific cause) to a bruise, and that the injuries observed and tenderness described by JB had other potential causes.

33. Dr Musgrave was called to explain why JB may have been in such a deep sleep as to only wake midway through the act of sexual intercourse, and not before. I accept the evidence he gave as to the potential impact of cocaine consumption on sleep and sleep patterns generally. However, his evidence was expressed in very general terms, and, if accepted, simply establishes the possibility that JB was in the ‘crash state’ and/or in the deepest phase of sleep, at the time of the alleged offending.

34. Dr Musgrave was asked to make many assumptions in terms of his opinion, not only as to the effects of cocaine on sleep, but on JB’s estimated blood alcohol reading as at 11:00pm on 11 December 2020. Dr Musgrave assumed JB arrived at the Edinburgh Hotel at midday, had lunch, then had five or six glasses of rose and two shots containing Baileys. He assumed that ‘after this, at an undetermined time, [she] had a single line of cocaine, somewhere between 5-6pm’.[177] He assumed no further alcohol consumption by JB until after she arrived in the city.

    [177] T68.13-14.

35. These assumptions were not made out in JB’s evidence. JB gave no evidence as to whether she stated drinking before or after she ate lunch at the Edinburgh Hotel. She gave no evidence as to when she consumed alcohol at the Edinburgh Hotel, other than that it was consumed between 1:00pm and around 8:00pm. She gave no evidence about what food she ate and when, or how much cocaine she consumed.

36. Dr Musgrave described his estimate of JB’s blood alcohol content as ‘conservative’. In contrast to the way the prosecutor described this evidence in his closing address, I have interpreted the term ‘conservative’, in the way used by Dr Musgrave, to mean ‘lower’ rather than ‘higher’. I have done so because any other interpretation would be at odds with Dr Musgrave’s statement that ‘even using extremely conservative estimates there is still a substantial amount of alcohol on board’.[178] Further, that interpretation is otherwise consistent with Dr Musgrave assuming alcohol was consumed immediately after the meal and not before, as in the case of the latter, the impact of the food would be less (meaning the blood alcohol content would be higher).

    [178] T 80.4-6.

37. As such, I am unable to accept Dr Musgrave’s estimate that JB’s blood alcohol reading at 11:00pm on 11 December 2020 was between 0.06% gm and 0.08% gm as being an accurate estimate. The reading may have been higher, for example, if JB consumed any alcohol before eating lunch, and if she consumed alcohol after consuming cocaine at around 5:00pm. Importantly, Dr Musgrave’s opinion was that he would expect to see disinhibition in persons with a blood alcohol reading of about 0.1% gm, being just outside of his ‘extremely conservative estimate’.

38. Similarly, in the absence of there being any evidence before the court as to how much cocaine JB consumed, how she consumed it, whether she had ever consumed cocaine before and/or if so, was she a regular user, I can give only limited weight to Dr Musgrave’s observations as to the potential impact of that cocaine consumption on JB.

39. Importantly, there was a noticeable absence of any expert evidence as to the potential impact of the combined intake of alcohol, in the quantity as described by JB and any quantity of cocaine, on memory.

40. Further, JB gave evidence, confirmed by the results of her urine and blood tests, that she was taking a weight loss medication, Phentermine, on an intermittent basis, and was on the antibiotic, Trimethoprim, at the time of the alleged offending. There was no expert evidence as to the possible interaction (and/or possible side effects) of mixing either of these drugs with alcohol and/or cocaine.

41. As such, Dr Musgrave’s evidence was of limited assistance to the court in determining the critical issue in dispute.

    JB’s Evidence

42. JB’s evidence is critical to the prosecution case and as such I must scrutinise her evidence with care.[179] I must be satisfied that JB is both a credible and reliable witness and I must be satisfied beyond reasonable doubt that she is telling the truth about the alleged offending. I must exclude there as being any reasonable possibility that she is mistaken, or reconstructing, or experiencing any gaps or lapses in memory of what occurred that night.

    [179] Murray v R (2002) 211 CLR 193.

43. JB presented as an intelligent and articulate young woman, who is genuine in her belief that at no stage did she ever consent to engaging in sexual intercourse with the accused. As to the initial complaint, notwithstanding the two specific matters highlighted by counsel for the accused, I am satisfied the complaint demonstrates consistency of conduct on JB’s part, both in terms of its substance and timing.

44. The fact JB was taking antibiotics supports her evidence that she had no intention of having unprotected sexual intercourse with the accused.

45. There is no dispute that both JB and the accused had been drinking during the day immediately prior to the offending. On any assessment of the evidence, JB must have been moderately intoxicated at or about 11:00pm that day. While the prosecutor cross-examined the accused in detail as to his level of intoxication, and the accused himself acknowledged to police he was ‘pretty drunk’, it is of note that JB gave no evidence that the accused appeared to be intoxicated.

46. JB gave evidence that she was exhausted when she arrived home from the city. However, notwithstanding this, she called the accused and confirmed an earlier proposed invitation for him to come to her home. There was no sense of urgency in terms of this arrangement, as they had already arranged to meet for the first time the next day, the Saturday.

47. In the weeks prior, JB and the accused had exchanged friendly and flirtatious messages. None of the messages were overtly sexual, but some had sexual undertones (for example, JB’s message sent on 25 November 2020 asking the accused, as part of a test, if he would come in and chat with her while she was having a shower). The messages that are before the court are indicative of two young adults, interested in getting to know each other, romantically, who are developing a connection, bonding over mutual interests in food, movies and the like.

48. JB must have known, from the messages, that the accused had demonstrated a degree of romantic interest in her. Similarly, from a simple reading of the messages, it is likely the accused assumed JB had some interest in pursuing a romantic relationship with him.

49. It is against this background that JB invited the accused to her home. While waiting for him, she got changed in attire that she intended to wear to bed.

50. JB was very clear in her evidence that upon seeing the accused, in person, for the first time, she was not attracted to him and immediately thought ‘No thanks’. It was this evidence that formed the basis for her claim that at no time, thereafter, did she ever intend to engage in sexual intercourse with him, nor did she ever consent to engaging in sexual intercourse with him.

1. JB agreed she had seen photographs of the accused (other than the small thumbnail profile photograph on Tinder) and exchanged SnapChat messages and a video call with him, prior to this meeting. As such, she must have had a general appreciation of the accused’s appearance before meeting him in person.

2. It is possible that in person, the accused did not meet JB’s expectations in terms of his physical appearance. However, JB acknowledged that she had enjoyed talking to him, they were having fun chatting, and, at least at a surface level, they appeared to share mutual interests.

3. Having regard to all of the circumstances, including what followed, I have difficulty accepting JB’s claim that when she first saw the accused, she immediately and completely dismissed him as a potential boyfriend from that point in time. Although I do not doubt JB now feels this way about the accused, it is possible her evidence on this issue is a product of reconstruction.

4. Another (and related) aspect of JB’s evidence that I have difficulty accepting is her evidence as to why, in the circumstances as she described, she then decided to take the accused into her bedroom to talk, rather than remain in the living area. I accept the accused’s evidence that JB ‘led’ him to her bedroom, as he had never been to the unit before and would therefore not have known which door led to her room. I am satisfied that she then shut the bedroom door behind them.

5. JB explained that she chose to take the accused into her bedroom, so as not to create an awkward situation for her younger sister. However, in taking the accused into her bedroom (and allowing him to sleep the night in her bed), JB in fact created a situation which was potentially far more awkward for her sister. That is, a chance encounter between her sister and a strange man, while they were each in night attire or only partly dressed, going in or out of the bathroom, either during the night or the next morning. I simply do not accept JB’s evidence on this issue, noting that JB’s sister was not called to give any evidence to render this explanation more plausible.

6. When all the evidence is considered, I am simply unable to accept JB’s evidence that from first meeting the accused in person, she had formed a concluded view that there would be no romantic relationship between them. That, of course, does not mean that she later consented to engage in sexual intercourse with the accused. However, my rejection of JB’s evidence on this issue is important in term of my overall assessment of her reliability.

7. Another aspect of JB’s evidence which causes me some concern, is JB’s evidence about what she did upon waking the next day.

8. JB gave evidence that she woke at 6:12am and checked her phone. She said she then asked the accused why she did not have any underwear on. JB said she knew she had not taken off her underwear and she vividly remembered having had sexual intercourse with the accused. When cross-examined as to why, in those circumstances, she had asked him that question, JB initially said she was uncertain, but later said that ‘there was a part of me that wanted to hear what he had to say’.[180]

   [180] T 53.20-21.

9. JB gave evidence that during the alleged offending, she was too petrified to say or do anything and just lay there, pretending to be asleep. She said she feared the accused may harm her or even kill her. For the same reason, when the accused left the room to go to the bathroom, after intercourse, she stayed motionless in the bed next to him. She said she was too scared to do anything else.

10. It is impossible to know how someone will react in the circumstances as described by JB, that is, after just being raped by a man she has just met and who is physically larger and stronger than her. It is certainly plausible that at that time she froze out of fear, thus explaining why she said and did nothing, so as not to alert the accused to the fact that she knew what had happened.

11. However, JB’s actions the next morning – that is – in staying in the bed, next to the accused, checking her phone, and then questioning him about his conduct, are at odds with the circumstances as she described having occurred only a few hours prior, including her fear of the accused and what he may be capable of doing.

12. My overall impression from considering JB’s evidence was that she may well have under-estimated the actual impact her consumption of alcohol had on her that night, both in terms of the accuracy of her memory and on her decision-making processes.

13. If JB’s blood alcohol reading was, in fact, in the order of 0.1% grams, or even higher, this may explain why she made what, on their face, seem to be unusual decisions. For example, inviting the accused over when she was already exhausted and it was 11:00pm at night, taking him into her bedroom and allowing him to sleep in her bed, notwithstanding that she had no romantic interest in him.

    The Accused’s Evidence

14. Although the accused bears no onus of proof, it necessarily follows that for me to be satisfied beyond reasonable doubt of the accused’s guilt, I must reject his denial of the alleged offending as not being a reasonable possibility.

15. The accused presented as a somewhat nervous witness. He remained calm throughout the course of his evidence and at no time became overtly agitated or aggressive.

16. At times, the accused appeared somewhat confused by the manner of questioning in cross examination and there were occasions during his evidence when he either contradicted himself or corrected himself. He presented both to police, and in court, as a relatively unsophisticated young man, of average intelligence and somewhat overwhelmed by the circumstances in which he found himself.

17. It was suggested by the prosecutor that the accused was simply making up certain aspects of his evidence and that he had a limited memory of what in fact had occurred because of his level of intoxication on the night. There is considerable strength in that submission.

18. The accused made a number of concessions to police about his level of intoxication. He agreed that he was ‘pretty drunk’ and drunk enough that he should not have been driving. It was for that reason that he caught the Uber from One Tree Hill to the complainant’s home at Parkside.

19. When asked by the police if he ‘could remember everything that happened here’, the accused’s response was ‘Not really no’.[181] In cross-examination, the accused gave the following evidence:[182]

    [181] MFI P11 lines 77-78.

    [182] T 120.15-32.

    Q.And I'm suggesting that you've got a poor memory of it because of the amount of alcohol you had on board.

    A.No.

    Q.So alcohol doesn't impact on your memory.

    A.It does, just not then.

    Q.Just what, not on that occasion.

    A.Well, it did, but not then.

    Q.What part of the evening do you have a problem with your memory about.

    A.I don't.

    Q.I had understood you to just say that you did have a problem with your memory and alcohol on that night.

    A.I'm sorry, I didn't mean it like that.

    Q.Are there other occasions where you've had problems with your memory and alcohol.

    A.No.

    Q.Not ever.

    A.No.

20. There were aspects of the period leading up to the alleged offending which the accused no longer could recall, for example what time he came home that afternoon from the pub or what time he left his home to travel to the complainant’s home.

21. I consider it likely that the accused was telling the truth when he told the police he was ‘pretty drunk’ and that, as a result, he was not able to remember everything that happened that night, when he spoke to the police. As such, the accused’s recollection of events is unlikely now to completely be accurate. In addition, it is possible that because of his level of intoxication, and the overall circumstances, the accused ‘misread’ the situation at the time, and/or misinterpreted JB’s acquiescence to his sexual advances, as a positive indicator of consent.

22. There were differences in the accused’s evidence compared to what he told the police in the record of interview. The police asked the accused how it transpired that he ended up having sex with JB. He said, ‘just the way that we were cuddling and I just read the situation as if she wanted it. That she was into it’.[183] Later, when asked to explain in more detail, how he ‘read the situation’, the accused said that JB had her hand on the inside of his thigh, she was rubbing his leg, they were making out and that when he put his hand down her pants, she did not stop him or say no.[184]

    [183] MFI P11 line 146.

    [184] MFI P11 line 152.

23. In evidence, the accused explained that after trying to go to sleep for about 20 minutes, he put his hand over JB in order to cuddle her and that she then wiggled her bum towards him, which prompted him to start kissing her neck. He said she then turned to him and started kissing him and that they were kissing throughout intercourse. This detail was not provided to police.

24. The accused told the police that he knew JB was awake because she was kissing him back and because she was pushing into him during the act of sexual intercourse. The latter detail was not included in the accused’s evidence.

25. I am mindful that the police questioned the accused over a very short period of time and that the interview did not unfold in proper chronological order. For example, the police did not ask the accused what happened immediately prior to them engaging in intercourse, nor the precise timing as to when he had asked JB if she wanted to have sex.

26. Much of the prosecutor’s criticism of the accused’s evidence was what he said were inconsistencies in what the accused said in evidence, as compared to what he said to police, about whether he and/or JB were awake or asleep at certain times. In my view, some of that criticism is unfounded.

27. In the record of interview, this exchange occurred: [185]

    QOkay and she said you both layed down on the bed. She’s not denying that took place and you both went off to sleep.

    AYep.

    QOkay problem is she woke up a while later to find you on top of her having sex with her penile vaginal sex.

    AYes.

    [185] MFI P11 lines 99–102.

28. Having carefully considered this aspect of the interview, I am not satisfied that, by responding ‘yep’ and ‘yes’ to these questions, the accused was actually agreeing with the truth of these statements, rather I am satisfied he was simply acknowledging to the police that he understood that JB had made these statements and/or allegations.

29. The prosecutor also emphasised the following aspect of the record of interview: [186]

    QAnd had you been asleep and woken up to have sex or were you awake and her awake the whole time.

    AI ah couldn’t tell you.

    QOkay surely you’d know whether or not you went to sleep or not.

    A… I was in that state where like I was half asleep sort of thing.

    [186] MFI P11 lines 186–189.

30. As to the first question in this exchange, it is uncertain whether the accused’s response relates to his knowledge of whether JB was awake or asleep at any time prior to the act of sexual intercourse, or if the response relates simply to his own state of sleep. If the two questions and answers are read together, it seems more likely that the first answer relates to his understanding with respect to JB. If so, the response is what one would expect – the accused could not have known with any degree of certainty whether JB was awake the whole time after she switched off the light, and before they started to engage in any sexual activity.

31. The accused gave evidence that he was never fully asleep, but that he changed from being half asleep to more awake when he and JB started kissing.

32. I am not satisfied that there is any inconsistency in the evidence the accused gave as to whether he was asleep, or awake, at various times, and what he told the police.

33. Another matter emphasised by the prosecutor was the comment the accused made in his final text message to JB, namely ‘… I get that you don’t remember anything’.[187] The accused was cross-examined as to why he used that terminology if, as he claimed, JB was fully awake and an active participant throughout the act of sexual intercourse. The accused said:[188]

    Because of the alcohol in her system. She was the same level I was.

    [187] Exhibit P1, final page.

    [188] T 121.5-6.

34. I accept the accused’s explanation. Of course, it must therefore follow that if the accused thought JB may have problems remembering the details of the evening because of her level intoxication, that he may also have similar problems.

35. As previously stated, the accused acknowledged the fact that he could not really remember everything that had happened when he spoke to the police. I consider that he was honest in making that concession. He did not make that concession in his evidence. My impression, from carefully watching and listening to the accused give evidence, was that his reluctance to do so stemmed from the fact that he has a genuine memory of asking JB if she wanted to have sex, that she said yes and that by her actions, she was actively participating in sexual intercourse with him. My impression was that the accused was reluctant to make that concession in evidence as, from his perspective, he did remember what were the most important details of the night.

36. I have already observed that JB may have under-estimated the impact of alcohol on her. As Dr Musgrave explained, he would expect to see disinhibition in people with a blood alcohol reading of around 0.1% grams. It is certainly possible JB’s blood alcohol content was close to that level at 11:00pm. As previously stated, this may explain why JB made what appear on their face to be several unusual decisions that night. It may explain why she gave no evidence to the effect that she perceived the accused to be intoxicated. It could provide a possible explanation as to why, on the accused’s evidence, JB agreed to have unprotected sexual intercourse, notwithstanding that she was taking antibiotics.

37. Although it was not put, specifically, to JB in cross-examination that she does not recall consenting to sexual intercourse because she was intoxicated, the court must consider not only the potential impact of alcohol on the ability of the accused to accurately recall the events of the night, but also on JB’s ability to do so.

38. It was submitted by the prosecutor that what the accused said in the final text message, namely, ‘I wouldn’t show you off to all my mates’ should be interpreted as him engaging in ‘trophy talk’. The accused explained that he had shown his mates pictures of JB prior to meeting her, as he was happy talking to her and he thought something might come of it.[189] I accept that explanation.

    [189] T 116.2-14.

39. When the accused’s final text message is carefully considered, in conjunction with the text messages he exchanged with JB prior to meeting her, the impression one gets is that the accused genuinely liked and cared for JB and was interested in pursuing a relationship with her. This is seemingly inconsistent with him then opportunistically engaging in unprotected sex with her, when he knew she was asleep. Further, having observed the accused give evidence and his presentation to police, and the overall language and tone he used during his messages with JB, I am left with the impression the text message was genuine, rather than being carefully devised and worded in a way designed to ‘cover the accused’s tracks’.

40. As outlined by defence counsel, the accused made a number of very telling concessions both in what he said to the police, and in his evidence. These were concessions that he simply did not need to make and were very much concessions against his interests. For example, the accused agreed with a police proposition that JB had previously told him that she was not the type to have sex on the first date and that when he tried to kiss JB while they were on the bed chatting, she had pulled away. He agreed that while they were having sex, he had hooked JB’s right leg up onto her shoulder.

41. I agree with the submission made by counsel for the accused, that these concessions, particularly the latter concession, are not consistent with the accused otherwise lying about the circumstances in which he and JB engaged in sexual intercourse.

42. There were inconsistencies in aspects of the accused’s evidence which cause me to have some doubts as to the reliability of his evidence. The accused was reluctant to acknowledge any failings in his memory because of his level of intoxication.

43. However, having carefully considered all of the evidence, including that of the accused, I am simply not able to exclude as a reasonable possibility, that the accused was telling the truth when he described JB as being a willing and active participant during sexual intercourse and of positively responding yes, to his question as to whether she wanted to engage in sexual intercourse with him.

    Conclusion

44. While it is certainly possible the offending occurred, it is also reasonably possible that the accused was telling the truth when he denied the offending, both to the police and in evidence.

45. It follows, that it is reasonably possible that JB did consent to engaging in sexual intercourse with the accused, or, if she did not so consent, the accused did not know this, nor was he recklessly indifferent to that fact.

46. While I do not doubt that JB honestly believes she was raped, having scrutinised her evidence with great care and all of the evidence presented by the prosecution, I cannot be satisfied beyond reasonable doubt as to the accused’s guilt.

47. I find the accused not guilty.