R v CLELAND - [2012] SADC 42

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CLELAND
Criminal Trial by Judge Alone
[2012] SADC 42
Judgment of His Honour Judge Griffin
12 April 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge alone - accused charged with two counts of rape - accused gave evidence - not satisfied of proof of each count beyond reasonable doubt.
Verdict: Not guilty of Counts 1 and 2.
Criminal Law Consolidation Act 1935 s 48; Evidence Act 1929 s 34L, s 34M, referred to.

R v CLELAND
[2012] SADC 42

The accused is charged with two counts of rape. The offences allege two acts of sexual intercourse with the complainant “E” without her consent on 8 August 2008 at the riverbank of the River Torrens in Adelaide.
The accused pleaded not guilty to both counts and the trial proceeded as a Judge Alone trial pursuant to the Juries Act.
I have directed myself in terms of the general directions I would have given a jury. In particular –
(a) The presumption of innocence in favour of accused;
(b)The burden of proof and the standard of proof resting on the prosecution;
(c) The need to consider the evidence in respect of each count separately;
(d)The factors which may play a part in assessing the credibility and reliability of witnesses;
(e)The need to have regard only to the evidence tendered in the trial and specifically to remove from consideration any information brought to my attention for the purpose of preliminary rulings on evidentiary issues which was not subsequently the subject of evidence in the trial;
(f)The potential effects of alcohol intoxication on the credibility and reliability of witnesses including the complainant E and the accused;
(g)In this case, since the accused gave evidence, to remind myself that the accused did not assume any burden of proof in deciding to give evidence and that the prosecution retained the obligation to prove each element of each charge beyond reasonable doubt.
During the discussion of the evidence I will identify the evidentiary directions I have taken into account.
Prosecution Case
The prosecution rests primarily on the evidence of the complainant E. There is some forensic evidence which is consistent with her account of events but it is not conclusive or strongly probative. I will refer to the forensic evidence in more detail.
The complainant E was 17 years old in August 2008. She lived in a coastal town south of Adelaide. At the time she said she was living with a friend and the friend’s grandmother. Her mother lived in the same town but she was not living at home.
On 8 August 2008 E caught a bus to Noarlunga to meet up with two male friends. Both had previously been her boyfriend at different times but they were then “just friends”. After meeting the two boys (Jeffrey and Jordan) they all travelled to Adelaide by train. Up to that time of the day E had not drunk alcohol. They arrived in Rundle Mall by late afternoon.
E described what she, Jeff and Jordan did once they arrived in the Adelaide CBD. They went to a clothing store in the Mall, called Jay Jays. Jordan bought a hooded top and E bought a new pair of briefs. She persuaded Jordan to let her wear the top soon after and she continued to wear it throughout the evening. She also put on the new briefs although she could not recall exactly where she changed into the new briefs. The ones she had been wearing had holes and were old. She believes she discarded them.
E recalled that when in the Mall with Jeff and Jordan, she met a man she came to know that evening as ‘Cramer’. There was no dispute during the trial that ‘Cramer’ was the accused’s nickname. Her male friends had apparently met Cramer before. She described his physical appearance and that he was wearing a silver puffy jacket.
In a curious aspect to her evidence, E described being in the Mall with her two male friends and ‘Cramer’ when two “African-American” men approached them. She said they were a little older and they asked the two men to buy some alcohol from the liquor store. They agreed and E says they procured a 6 pack of Woodstock pre-mixed spirits for her. During cross examination, E could not identify why she thought the men were “African-American” as opposed to being African. She could not say anything about their accents or why she formed that opinion.
E’s evidence in chief was that Cramer said there was a party in the East End and suggested they should head down to take a look. She and the others walked down the Mall to “Emo Park”, a nickname given to the Rymill Park area in the east parklands adjoining the city. There were about twenty other people there, socialising and drinking. It was just getting dark. E drank two cans of Woodstock, and then traded another for a Jim Beam and Coke. She then had a beer bottle into which other added some of their alcoholic drinks and mixed it with cola. Jeff and Jordan were drinking Woodstock and she assumed Cramer was drinking wine from a cordial bottle in his backpack. At Rymill Park E also met two other young men, Chris who had the nickname Huggy Bear, and a boy with Italian heritage named Frank.
E could not say how long she stayed at Rymill Park but a number of the group, including her, left and made their way to the Shisha Bar. It was well and truly dark by that time. She said she was a little bit tipsy but not drunk. It took about a half hour to walk through the city to the Shisha Bar although she could not recall the route. She was not very familiar with the streets in the CBD. By the time she got there she believed she had sobered up. They only stayed there for about 10 minutes. Another group of people had apparently gone down to the banks of the Torrens behind the University grounds for a party. After leaving the area of the Shisha Bar E says she walked down a laneway and eventually walked along the pathway under the King William Street bridge. She claimed that her group at that time included Jeff, Jordan, Chris, Frank, Cramer and a few others. Under the King William Street Bridge she says they stood and watched someone doing “fire breathing”. Then they walked along to the University footbridge and crossed to the northern bank.
According to E there were about fifty young people sitting on the lawns near the footbridge on the northern side. They were drinking and talking. Cramer appeared to know some of the people there. She socialised by talking to other people with her friend Jordan. She had drunk more alcohol under the King William Street bridge on the way there, then more once at the riverbank. She felt tipsy when she arrived at the riverbank and then had about 5 glasses of alcoholic drinks whilst at the footbridge over the next hour or two.
E said she chatted with Cramer a bit while with others in their group. They talked about music and how he had been in the Army. She also said[1] she noticed he had an accent and when she asked about it he said he was Welsh. This is another strange piece of evidence from E. Not only did the accused deny any such conversation when he gave evidence, but the video of the record of interview of the accused that night when arrested did not suggest any hint of an accent. After considering the competing evidence on this point I am convinced that the conversation E claims to have had with the accused about him having a Welsh accent never occurred. She is completely wrong about such a conversation. Her evidence on this topic is damaging to her credibility. If she has imagined such a conversation with the accused and yet so clearly attributes it to him, then I consider that there is something seriously amiss with her memory of that night. If she spoke with someone else with a Welsh accent and subsequently believes it was the accused, then that is equally worrying. Whilst it is not of itself a critical matter it raises significant concerns in my mind about her memory of events that evening and more generally about her credibility and reliability.
[1] T 117 and T 121
E went on to say that while she and Cramer were talking a boy came up to them, said a girl had passed out up the pathway nearby, and needed help. The boy had approached from the King William Street side of where they were standing. E said she and Cramer walked quite a distance along the path by the Torrens. The pathway forks and it was near that point that E and Cramer found a girl who had collapsed and wet herself. E described how they woke her and got her talking. After a little while they left and told the girl they would come back in 10 minutes to check on her. She and Cramer walked back to the footbridge area where Jeff and Jordan were. She and Cramer continued talking for about 10 minutes and Cramer then suggested they should return to check on the girl up the pathway. They walked back along the pathway but the girl was not there.
On this significant issue, namely the reason for walking up the pathway, E admitted under cross-examination that in her first statement to a police officer on 16 August 2008,[2] she said that when they returned the girl was asleep. She claimed that it only occurred to her some time last year (2011) that she had not seen the girl at all when she and Cramer returned to that area.[3] E explained that at the time of her first statement to police she was “hazy” and “in shock" but now clearly remembers that the girl was not there.[4]
[2] Statement given orally 16 August 2008 and signed by E. on 3/12/2008
[3] T 131-132
[4] T 132
E rejected the proposition put to her in cross examination that she and Cramer had walked up the pathway along the Torrens for some one-on-one time away from the group and that there was no request by another male to check on a girl who had collapsed. The accused gave evidence that there was never a request to give help to a girl along the pathway who had collapsed and that E’s evidence about that aspect of the events at the Torrens riverbank was incorrect.
I will comment upon this part of the evidence in more detail shortly. It is sufficient to say that the admitted inconsistency in E’s evidence about this subject is damaging to her credit. It is difficult to reconcile the difference between the statement she gave to the police one week after these events and her sworn evidence on the basis that she was “hazy” or “in shock” at the time of the first statement to police. I do not accept that a more accurate and reliable memory arose sometime during 2011, a period of about 3 years after the event.
E claimed that because the girl who they went to check on was not there, she said to Cramer that they should go back to the group by the footbridge. According to her Cramer suggested that they could talk for a while at that spot because it was a lot quieter. E agreed and so they sat on the rock wall along the pathway. They each smoked a cigarette. They sat for a while smoking and she claims that when they each finished their cigarettes, Cramer stood up then leant over and started kissing her. She was okay with that because he seemed like a nice guy. At that time she felt quite drunk. He pushed her back so that her bottom was on the wall but the upper part of her body leant back against the slope above the wall. She claims Cramer tried to unzip her jacket but she told him not to because it was too cold. E says that she grabbed both sides of the jacket and wrapped them around herself and again she said she was cold. She claims that Cramer pulled it apart and then pulled her top-down exposing her right breast. He then grabbed her breast and started licking her nipple. She did not use an angry or demanding tone but told him "no". Soon after he stopped that and she pulled her top up. Cramer then pushed her down with his arms on her shoulders. He then used his left arm across her chest and using his right hand he put his fingers into the waistband of her pants and underpants and pulled them both down. E was wearing loose fitting jeans. With that action he exposed the lower half of her body. E struggled with him and said “no” and as she was trying to sit up he pushed her down with his arms. Having forced her back down he placed a finger or fingers inside her vagina and again E says she said “no” and “stop it”. By this time E says she was using a more demanding tone. It was not incredibly loud but louder than before. She said that he was playing with his fingers inside her vagina. These actions are the subject of Count 1.
According to E, the accused withdrew his fingers and somehow got his own pants down and he had his elbows on her waist and his arms across her chest. He then inserted his penis into her vagina. This act is the subject of Count 2. E believes that her feet were on the ground but her legs were being forced apart by his legs as he was standing in front of her. She said ‘she’ that she asked him to stop and by this time her tone was angry and quite a bit louder.
E said that he thrust with his penis a couple of times and then she became aware of people walking on the pathway above where she was. She could see them. She did not call out to those people but does not know why she did not call out. E says that the accused pulled out his penis and she did not believe that he had ejaculated. She got up from the position she had been in on the bank, got her clothing back on and said that she was going back to the group at the footbridge. She described herself as being shaken up and a bit drunk at this point. As she walked along the pathway back towards the footbridge Cramer walked behind her. She had no idea how long she had been away from the people at the footbridge and said that as she walked back towards that area she was feeling scared. E said that when she got back to the footbridge there were no other people there. She was concerned and says that she asked Cramer if he knew where they would be. He told her that he did know where they would be and that he would take her there. Together they walked across the bridge and as she came off a bridge on the southern side she saw her friend Jeff and walked straight up to him and hugged him. Jordan was not there but she believed Cramer would lead them to wherever the others, including Jordan, were located. The three of them then headed off through the university grounds up towards North Terrace.
As they entered the university grounds E says that Cramer was walking slightly ahead of she and Jeff. She took the opportunity to tell Jeff - “I've just been raped” or words to that effect. She was not sure whether she said the words or mouthed the words to Jeff but either way she said it so that Cramer would not hear. In examination in chief she claimed that Jeff became angry and went towards Cramer with a clenched fist. E says she stopped Jeff by telling him “no" and pulling him back. Later in her evidence E says she wanted to find Jordan because some arrangement had been made to stay with one of Jordan's family in Adelaide that night. That was apparently the reason why she and Jeff were prepared to walk with Cramer through the university grounds and up to the city.
It is not at all clear how Cramer might have known where Jordan was likely to be. In any event, E said that they walked through the city and when they got to Victoria Square she, Jeff and Cramer sat on a park bench. She and Jeff did not sit there for very long. She claims that she and Jeff pretended they had seen Jordan and walked off away from the park leaving Cramer sitting alone on the bench. She and Jeff found a telephone box in Grote Street not far from Victoria Square. She made a reverse charge telephone call to her mother and told her what had happened. E described being upset and telling her mother that she had been raped and was in Adelaide somewhere. Her mother told her to stay there and that she would ring the police. E believes that she rang back about 10 minutes later and her mother told her that the police had been contacted and were on the way. A police car arrived at the phone box very soon after that and spoke with E about her allegations. It is clear that one of the pieces of information given to the police was that they had left the alleged offender very recently in Victoria Square and that he was wearing a silver puffy jacket.
Within a short time a police patrol was driving E to the police station in Wakefield Street and drove around Victoria Square. The police officers were looking for locations of CCTV cameras that might assist with their enquiries. When travelling through Victoria Square E pointed out the accused to the patrol officers in her car. It is unclear whether the accused was already speaking with police from another patrol at the time he was spotted by E. In any event, nothing turns upon that identification of the accused by E.
E was taken to the Adelaide Police Station in Wakefield Street and then to Yarrow Place at the Women's and Children's Hospital so that she could be examined. The usual sexual assault forensic procedures carried out.
Following the forensic examination Snr Const Robinson took E to the riverbank where E identified the approximate area where she had been with the accused. He found two cigarette butts which he seized as exhibits for forensic examination. An agreed fact between the parties is that the DNA of the accused was recovered from one of the cigarette butts seized by Snr Const Mark Robinson on the path in the early hours of 9 August 2008.[5]
[5] Statement of Agreed Facts, Exhibit P11 Item 2
The clothing items seized from E were forensically examined. Because an examination of E’s underwear revealed the presence of a single sperm head (from which no DNA could be recovered) the prosecution sought and was granted leave to question E about the last time she had had sexual intercourse prior to that evening. E's evidence was that it was 2 months or more since she had had sexual intercourse. This evidence was designed to weaken any assertion that the single sperm head recovered from E’s underpants could have been a transferred artefact from a previous sexual episode.
Cross examination of the complainant
Cross examination began with careful questioning about E’s memory of the chronology of events that afternoon and evening. E believes she purchased the new underwear before she met the accused however she does not remember when or where she changed into them. She thought she changed in a toilet, possibly somewhere in Rundle Mall but was not 100 percent sure. After that while still in Rundle Mall she met Cramer for the first time. She was introduced by Jeff and Jordan who appeared to know him. In relation to her assertion that they bought alcohol from the liquor store at Woolworths in the Mall with the help of two “African American” men, E believed that Cramer had already been introduced and was with them in the Mall at that time. E did not have any explanation as to why the two “African American” men were asked to buy alcohol for her, Jeff and Jordan rather than ask Cramer. E accepted that Cramer appeared older than them and was somewhere in this 20’s. E said there was no discussion at all about ever asking Cramer to buy alcohol for them.
I thought it unusual that E and her two young male friends would call upon two strangers to buy liquor for them if they had already met up with the accused, a man who was already know to them and clearly appeared over the age of 18 years. My reservations about E’s evidence on this particular topic were deepened when the accused gave evidence. According to his evidence, he believed he did not meet E until he was introduced to her in Rymill Park. The accused disputes meeting E, Jeff and Jordan in Rundle Mall and says he was not present when any alcohol was purchased with the help of two “African American” men. I found his account of events straight forward and compelling. I doubt that the accused was present in the Mall when E and her 2 male friends purchased alcohol.

During cross examination E admitted that she had regularly drunk alcohol since the age of 13 years. Drinking was usually on a weekly basis and her habit was to drink until she became tipsy and sometimes to drink until she became drunk. Quite clearly she was used to consuming alcohol and on occasions chose to drink in order to get drunk.
E was questioned about the events at Rymill Park. She said they all moved down Rundle Mall to the Rymill Park area within about 10 minutes of meeting in Rundle Mall. She had only been to that park once before. That evening it was her intention to sleep the night at Jordan’s family’s home somewhere in Adelaide and that was the reason why near the end of the evening she and Jeff were trying to find Jordan.
E accepted that when she drinks and gets tipsy she finds it a little easier to talk to other people and have a good time.[6] That evening E did not have any difficulty speaking with other people including chatting with the accused. She had gone out with her friend Jeff for about a month as boyfriend and girlfriend but that finished about 3 months earlier. After the relationship broke up they still remained good friends. E denied that she still had a crush on Jeff and denied that she was interested in finding a new boyfriend. She accepted that she was happy to meet new people that night and the possibility of making new friends either male or female was something that occurred to her.[7]
[6] T 114-115
[7] T 116
E was then cross examined on the topic of Cramer having an accent. She claimed that sometime during the night when speaking with Cramer she commented upon his accent and he told her that it was a Welsh accent.[8] As I remarked earlier, E’s evidence on this topic cannot be explained as a simple misunderstanding or error. It may be possible for someone to think that they have detected an accent in another person’s voice when none actually exists. The present situation is quite different to that. The recorded conversations with the accused later that same evening do not indicate any accent at all. In his evidence, the accused clearly did not have an accent. In addition, during his evidence he disputed ever having such a conversation with E and never claimed to have a Welsh accent or any other sort of accent. I suspect that E has imagined such a conversation with the accused. I do not believe that any such conversation ever took place. If, as the prosecutor suggested in her final submissions, E had such a conversation with another male that evening and has wrongly attributed the conversation to the accused, then that is alarming. E has clearly asserted in her evidence that she spoke with the accused about this. She did not hint at any possibility of being mistaken or wrongly attributing that conversation to the accused. There was nothing about E’s presentation as a witness to indicate that she was trying to give misleading evidence or be deliberately untruthful about this subject. I am prepared to accept that she genuinely believes that such conversations took place but I reject the reliability of her evidence on that matter. No such conversation ever occurred between E and the accused.
[8] T 116-117
On this topic I note that E was cross examined about prior statements to the police in which she claimed that discussions about his accent and his age took place when they were in Rundle Mall. Such statements were put to E during cross examination and when confronted with the terms of her earlier statement, she said she did not mean it to come out the way it appears in the statement. The parties agreed that relevant parts of the witness’ statements would be before me in relation to cross examination on the prior inconsistent statement when it was not clearly admitted. I have examined the relevant statement regarding this part of the cross examination. In my view nothing decisive turns on the prior statement in relation to where the alleged conversations occurred. I do not regard the terms of the first statement to police as stating clearly and unequivocally that all conversations with the accused about his accent, employment and age happened in Rundle Mall.[9]
[9] T 119-120
In cross examination it was suggested to E that she spoke with Cramer at Rymill Park. She disagreed but he did speak with others in her group. E also disagreed with the proposition that she and her group of friends including Cramer left Rymill Park and made their way directly to the River Torrens near the university footbridge. E maintained her evidence that they first went to the Shisha Bar and then went to the Torrens, stopped under the King William Street Bridge where they had more to drink, then made their way to the area near the footbridge.
There were a lot of other people near the footbridge. E agreed that Jeff and Jordan appeared to be attempting to get familiar with other girls but she was not jealous of either of them doing that. She began speaking with Cramer and although she found him interesting she said that it did not occur to her that he seemed interested in her at that stage. When she was speaking with Cramer she was within 10 metres or so of her group of friends including Jeff and Jordan who were talking with others. It was at this point that E maintained she and Cramer were approached by a boy who said that a woman further up the riverbank had collapsed and needed assistance. It was put to her that she and Cramer walking off together up the riverbank had nothing to do with a girl needing assistance. She did agree that Cramer said he wanted to get to know her better before they walked further along the riverbank. However, E maintained that in response to that comment she and Cramer only moved a short distance away from her group of friends to talk more privately.
In relation to walking further along the riverbank to a position where E claimed a girl had collapsed, she was cross examined about her first statement to police given on 16 August 2008 in which she stated that when she and Cramer returned to check on the girl a second time they found her asleep on the ground. In her examination in chief she did not mention that fact but simply claimed that the girl was not there when they returned a second time. I have referred to this evidence earlier. The inconsistency in her evidence is damaging to her credibility and reliability. It is a significant issue whether E and Cramer left the footbridge area only the once or whether there were two trips along the riverbank. As I have already said, I have serious reservations about the accuracy of this evidence by E. I doubt that E and Cramer were ever asked to go to the assistance of a girl along the pathway. The inconsistency in her account makes me doubt it. I consider it is far more likely that they left the group near the footbridge in order to have some quiet time together and talk privately.
The cross examination then turned to the events on the pathway which are the subject of the two charges.
E said that when they discovered that the girl was not there, Cramer suggested they have a cigarette and talk. She agreed and thought that he seemed like a nice guy. When Cramer started kissing her she was flattered and knew that he was interested in her. She kissed him back and agreed that alcohol may have played a part in that. When he unzipped her top and she told him that it was cold she thought he was taking it too far but she did not say that to him. She claimed that she tried to get up but that the accused pushed her back down further. When the accused pulled down her top and exposed her breast and started to lick her nipple she told him it was cold. She accepted under cross examination that she used the cold as an excuse to get him to stop. Although she did not want the sexual events to be escalating as they were, her explanation for not saying ‘no’ firmly or not using an angry tone was that she was not a mean person. I was left with the impression from her answers on this topic during cross examination that she was basing her evidence more from a reconstruction of events in her mind than any actual memory of her thoughts at the time. This is understandable but it did not give me confidence in her evidence on these important events relevant to both counts of rape.
It was put to E that the sexual events that followed did not occur as she stated. Rather, it was suggested to her that her jeans and knickers were not pulled down to her ankles but the accused put his hand inside her pants and underwear and touched her vagina. It was also put to her that the accused did not drop or remove his own trousers and he did not penetrate her vagina with his penis. She did not agree.
However, E did agree that she saw three people above her on the bank near the road but she did not call out to them nor did she scream. She said she no idea why she did not scream but thought that if she did call out, the passersby might help the accused not her. She said she could tell that they were three males. I did not follow her claimed reasoning for not calling for help and once again, I suspect that it was another example of reconstruction rather than an actual memory.
After re-dressing, they both walked back towards the footbridge. She did not attempt to run but said she walked as fast as she could. She expected to see her other friends at the footbridge when she got there. She agreed that she was not crying.
E was cross examined about meeting up with Jeff on the southern side of the footbridge and then walking with Cramer and Jeff through the university grounds. She was cross examined carefully about her assertion that she mouthed or whispered to Jeff that she had been raped by Cramer. She was also cross examined carefully about her assertion that after she told Jeff, he attempted to confront Cramer but she stopped him from doing it. Her evidence about hearing an exchange of words between Jeff and Cramer near the traffic lights on North Terrace was interpreted by her as a confrontation over the allegation of rape. I am not satisfied that there was such a confrontation between the two men. E assumed that the exchange was related to her claim of rape to Jeff. I am unable to conclude that that is so. E accepted that she assumed that Jeff had confronted Cramer verbally but she did not hear his exact words. I am not prepared to place any reliance upon her assertion that she made a complaint of rape to Jeff and that Jeff confronted Cramer about that allegation as they walked through the university grounds. The absence of Jeff as a witness at the trial made any further assessment of this issue impossible.
E conceded during cross examination that although she was trying to be as accurate as possible about the events that night, her recollection was not very good at all. She agreed that her memory was “patchy” and she offered the description that parts of the evening she remembers and parts she did not. E rejected the proposition that her memory was patchy because she was intoxicated. She attributed her patchy memory to the trauma of the events and blocking things out in her mind. Although she may have been intoxicated to some extent during the evening, the evidence did not establish that she was grossly intoxicated. Based on all the evidence in the trial, E’s self-assessment of her level of intoxication at different times of the night was probably accurate.
E was also cross examined about whether she raised the possibility of the accused wearing a condom when she spoke to a doctor at Yarrow Place in the early hours of the morning of 9 August 2008. She had no recollection of saying such a thing but suggested that the accused could possibly have put a condom on with one hand after taking down his trousers. She stated that there was a slight delay while he was forcing her legs apart and during that time he could have put on a condom. She rejected the suggestion that she raised the possibility of a condom because she knew there would be no semen found in the forensic examination. It was put to her that the accused touched her vagina with her consent but never placed his penis in her vagina. She disagreed with both propositions.
Complaint evidence
The prosecution did not call E’s friend Jeff as a witness in the trial. The investigating officer gave evidence that his efforts to contact the witness prior to trial were unsuccessful. As I have already said in relation to the evidence of E about her alleged conversations with Jeff as she walked through the university grounds, I am not sure what, if anything was said on that occasion. All that can be inferred is that Jeff was aware of the allegation by the time of E’s telephone call to her mother at a public telephone in Grote Street.
However, the prosecution did call evidence from E’s mother who I will refer to as Christine. Christine received a reverse charge telephone call from her daughter late on 8 August or in the early hours of 9 August 2008. She was woken by the call. She gave evidence that her daughter E sounded upset and distraught. E told her mother that she was lost but that she had just been raped and that she was in Adelaide. Christine told her to look around including an identification number in the phone box from which she was able to tell her mother that she was in Grote Street. Christine told her that she would get on to the police, which she then did. She immediately drove to Adelaide and arrived about 40-45 minutes later to join her daughter at the police station.
Although not much detail was given in the telephone conversation, I ruled that this evidence was admissible pursuant to Section 34M of the Evidence Act as either an initial complaint or an elaboration upon an initial complaint.
I accept that Christine was doing her best to give truthful and accurate evidence. Of course these events happened three and a half years ago and she did not claim to remember every detail word for word. However, I accept that E did complain to her mother of being raped and she sounded distressed or upset at the time of the call.
I have directed myself that this evidence of complaint can be used as evidence demonstrating consistency of conduct on the part of E. It may be viewed as the type of conduct and statement you might expect a young woman to make if she had been sexually assaulted in the manner she described in her evidence. However, the actual complaint was devoid of any detail and in that respect it cannot be compared with her subsequent evidence on that subject. The evidence of complaint also serves to identify how this matter came to the attention of police and how the police were able to attend on E in Grote Street and then arrest the accused soon afterwards in Victoria Square.
Police Witnesses
As a result of the phone call to police by E’s mother, the police located E soon after. Sgt Phillips was a shift supervisor that evening and arrived in Grote Street at about 12.40 am. He spoke to E who was in the company of her friend Jeff. Sgt Phillips thought E appeared slightly intoxicated and distressed. She had red eyes and slightly slurred speech. She reported that she had been raped by a male down by the River Torrens but she could not give Sgt Phillips a name. She did give a description of the suspect and said that they had left him a short time ago in Victoria Square. He was wearing a shiny silver jacket. Shortly after that other police went off to Victoria Square looking for the suspect while Sgt Phillips and Snr Const Robinson spoke to E. They then drove her to Adelaide Police Station in Wakefield Street but detoured around the northern part of Victoria Square en route. Near the corner of Flinders Street E pointed out a man wearing a silver puffy jacket sitting on a bench in Victoria Square. At that time it seems likely that other police officers were either already speaking to the accused or were approaching him for that purpose. I accept that the police were not trying to set up an opportunity for identification of the suspect but were looking for CCTV locations from which useful footage might be obtained. E pointed out the accused spontaneously once she saw him. He was either still sitting on or very near the bench where E and Jeff had parted company with him a short time before. In cross examination Sgt Phillips said he had a recollection that the young man in company with E near the phone box had also been drinking. He recalled that the young man was a bit difficult to deal with. Clearly this is a reference to E’s friend Jeff.
Former police officer Mark Robinson also gave evidence. He was a Detective Senior Constable in August 2008. He was tasked by police communications to attend in Grote Street upon the young woman regarding an allegation of rape. He spoke to E and could smell alcohol on her breath. Her speech was coherent and she seemed upset. Mr Robinson sat in the back of a police car with E on their way back to Adelaide Police Station when she pointed out the accused in Victoria Square.
Mr Robinson accompanied E with her parents to Yarrow Place at about 3.00 am so that she could be medically examined and her clothing items seized for forensic examination. After the Yarrow Place examination he went with E back to the River Torrens area and asked her to identify the area where the alleged offences happened. In the area pointed out to him by E, Robinson found two cigarette butts which appeared fresh which he seized and preserved for forensic testing. He also took photographs of the location where he found the cigarette butts and that area generally. In cross examination he confirmed that he looked around the area of the alleged sexual assault carefully. He did not locate either a condom or a condom wrapper. It was never suggested to him by E that he should be looking for any such items.
Detective Mark Heading gave evidence of attending in Grote Street and meeting E and her friend Jeff. They were both brought back to Adelaide Police Station to be interviewed for the preparation of a witness statement. He was made aware that other police officers had located the accused in Victoria Square so he joined them.
Detective Heading made a video recording of an initial conversation with the accused[10] in Victoria Square and then a further conversation with him at the City Watchhouse. I received a DVD of the recorded discussions with the accused and a transcript of the recording.[11]
[10] Exhibit P7
[11] Exhibit P8
The accused was informed of his legal rights and voluntarily chose to speak to the police initially in Victoria Square and then in a record of interview at the City Watchhouse. The video recordings were played in court. The agreed evidence demonstrates that the accused would have had a significant blood alcohol concentration at that time but the video recordings do not reveal any obvious faculty impairments. His speech was clear and importantly, it was devoid of any noticeable accent.
During the interview, the accused at first denied knowing E and disputed having had sexual intercourse with her that evening. Subsequently he indicated that E may have been the girl with her boyfriend Jeff. In his later evidence, the accused admitted that he did not disclose a full account of what had happened between him and E that evening. He explained that in his way of thinking he had not had sexual intercourse with her and therefore could not have raped or sexually assaulted her. However, because of his past experiences of being homeless and living on the streets, he did not have any confidence that the police would believe him if he told them his version of events.
Ultimately the prosecutor suggested that the accused told deliberate lies to the police during his interview. It is asserted that the accused has admitted in his evidence that he told the police lies. It contends that he told lies out of a consciousness of guilt. It urged me to reject the accused’s explanation for not being completely truthful. I will deal with this submission when considering the accused’s evidence. I will give myself the appropriate legal direction about evidence of lies and the circumstances in which lies may be used as evidence of consciousness of guilt. As will become apparent, I find that any lies told by the accused to the police were not made out of a consciousness of guilt. They will be relevant to an assessment of the credibility and reliability of the accused as a witness.

The final police witness was Snr Constable Robert Beattie who was one of the officers who located the accused in Victoria Square. He initially attended in Grote Street and obtained information that the suspect was wearing distinctive silver jacket. He and his police partner drove to the Square and located the accused sitting on a bench. When he approached the accused he appeared to be asleep. He roused him and began speaking with him. He searched his backpack and found a container holding wine or cider. He engaged in casual conversation with him for 15 minutes or so waiting for Det Heading to arrive. During that time he pretended to be offering assistance to find a taxi for the accused. In cross examination he confirmed that the accused was cooperative and did not try to get away. Subsequently Snr Constable Beattie read over his notes to the accused at the Watchhouse. No admissions were alleged to have come from any conversation with the accused.
Forensic evidence
Ms Julie Halsall, a forensic officer in the evidence recovery section of biology at the Forensic Science Centre, gave evidence of the examination of clothing worn by the accused and E. She also examined the swabs from the SAI kit collected at Yarrow Place.
There was no indication of seminal fluids from the vaginal swabs. E's underwear was also tested and did not indicate the presence of any seminal fluid. However, a microscopic examination of the inner part of E's underwear revealed the presence of a single sperm head. The sperm head did not disclose any DNA profile.
The accused's underwear was seized from him following his arrest that night and it was also examined by the Forensic Science Centre. A DNA profile matching that of E was recovered from the inner crotch area of the underwear that the accused was wearing.
Ms Halsall gave evidence about the potential transfer of a person's biological material containing DNA by means of primary, secondary or even tertiary transfer. On the assumption that sexual intercourse had occurred as alleged by E, Ms Halsall postulated that the single sperm head could have come from the accused and been transferred either directly onto her underpants by direct contact with them, or by being transferred onto some part of E's body and then being further transferred to the inner part of her underwear. Based on the assumption that E was wearing brand-new underwear purchased that afternoon and she had not had sexual intercourse with any other male for the previous two months, Ms Halsall expressed the opinion that it was unlikely that the single sperm head was an artefact of some earlier sexual event.
When cross-examined, Ms Halsall conceded that a single sperm head, which is minuscule, could potentially have been transferred to the inner part of E's underwear if a male put his hand or fingers inside her underpants and transferred some biological belonging to him onto her underpants. That proposition was essentially the contention made by defence counsel at the end of the trial. Ms Halsall could not rule it out as a potential explanation for the presence of the single sperm head inside E’s underpants.
The presence of E's DNA profile in material swabbed from the inner crotch area of the accused's underwear is consistent with the events alleged by E. Her biological material could have been transferred from his penis following sexual intercourse on to the inside of his underpants. Although the transfer of her biological material may have happened that way, it is not the only way that it could have occurred. It is also consistent with the evidence of the accused that he touched her vagina with his hand while he and E were kissing. He became sexually aroused while they were kissing each other and while he was touching her. Then, when they stopped and he removed his hand from her underpants, he touched his erect penis inside his pants in order to re-adjust himself because he was uncomfortable. In that way some of her biological material could have been transferred from his hand to his penis and then to the inside of his underpants. Ms Halsall could not exclude that scenario as a reasonable hypothesis to explain the presence of her DNA profile inside his underpants.
The result is that the forensic evidence is consistent with the complainant's allegations but it goes no further than that. Importantly, it does not exclude as a reasonable possibility that the transfer of biological material between the accused and E happened in the manner described by the accused in his evidence.
I have reached the conclusion that the forensic evidence is equivocal. Whilst it does not damage the prosecution case, it does not corroborate or support it to any significant degree.
Agreed facts
The prosecution case concluded with a statement of agreed facts. 10 separate facts were agreed pursuant to the provisions of the Evidence Act. They are set out in exhibit P11 a copy of which is annexed to this decision.
Defence Case
The accused gave evidence. I have directed myself in the usual terms that an accused person does not have to give evidence in his own defence. He has chosen to do so and has exposed himself to cross examination. However, I must assess his evidence in the same manner that I assess all other witnesses.
I remind myself that the obligation to prove the elements of each offence beyond reasonable doubt remains with the prosecution. By giving evidence in his own defence, the defendant does not assume any obligation to prove anything. Of course, by his evidence he may prove facts favourable to his defence or he may by his evidence raised doubts about the strength of aspects of the prosecution case.
The accused is now 27 years old. He was born and raised in Adelaide and went to high school through to Year 12 level. He left before the end of that year to take up training in horticulture. He now works permanently in this field of work and has done so for the past two to three years. However before his present employment there were substantial periods of unemployment and also periods of being homeless, including ‘couch surfing’ at friends’ homes or living rough in the streets.
In August 2008 he was out of work but had only recently found shared accommodation in a house at Unley. Before that he had been without a permanent home for about a year. During that time he described spending a lot of his time socialising with other people who were homeless, often meeting them in Rundle Mall or in other common meeting places in the parklands or down at the River Torrens. In this period of his life he was a chronically heavy drinker. His friends were mostly people like himself who were without a permanent home. Although he lived with two other single men and a couple in the house at Unley, he did not socialise with them. He described feeling uncomfortable because they had jobs to go to and otherwise appeared to have perfect lives, whereas he was unemployed, drank to excess and had little to look forward to in his life.
In August 2008, the accused also had a poor attitude towards personal hygiene. Although he lived in the house and had access to the bathroom, he would try to never get in the way of the others who had to use the facilities to get ready for work. During this period of his life he would generally shower only once a week when he would go to a drop-in centre in Byron Place in the city. It has facilities to allow a homeless person to have a shower, wash their clothing and chat with others.On Friday 8 August 2008 the accused did what he usually did in the mornings. He slept the night in his underwear. Sometime during the morning after waking, he masturbated until ejaculation. He used a cloth or a piece of clothing to wipe off the semen from his body and hands. He was not in the habit of showering or even washing his hands. That afternoon he set off from Unley to walk into the city. It would usually take about 45 minutes. He intended to go to Fred’s Van which is a charitable service giving out meals to homeless people in the city. However, when he got to the city he was too early for Fred’s Van so he decided to continue walking into Rundle Mall. He went there to see if any of his friends or acquaintances from the streets were hanging around so that he could catch up with them. In Rundle Mall he bumped into one of his friends named Chris who told him that a barbecue was happening down at Rymill Park. Chris suggested that he should come along. Together they bought some sausages and headed down to the park. It was late in the afternoon before dusk when he arrived at Rymill Park.
The accused did not believe that he met E in Rundle Mall. He thinks that he first met her at Rymill Park. His recollection is that there were 20 or 30 people at the park when he got there at around dusk. He brought some alcohol from his home which he carried in his backpack. He had a little bit to drink when he arrived at the park. He recalls being introduced to E by Jordan. He also met Jeff who he believes he had met once or twice before. The introduction to E was very brief and at that stage they did not speak any further. At no time during the evening did he ever tell her that he had a Welsh accent. His evidence is that he does not have any accent and does not even know what a Welsh accent is like.
At Rymill Park he drank alcohol and also observed others including E having some alcoholic drinks. He thought she appeared a little tipsy or “chirpy” as he described it. After being at the park for a couple of hours people in various groups started to leave. E, Jeff and Jordan were still there at that stage and were part of the group who were socialising together. Some mention was made of people moving down to the area near the university footbridge. The accused said that a group of them including E moved away from Rymill Park and made their way down to the footbridge. At some stage the accused believes that he purchased some more alcohol. This may have been by making a trip to the liquor store in Rundle Mall before closing time on the way down to the footbridge. The accused did not seem particularly certain about exactly when he bought more liquor. In my view, nothing significant turns upon that fact.
They made their way as a group through the university grounds down to the footbridge. The accused did not recall ever going to the Shisha Bar or underneath the King William Street Bridge on their way to the footbridge. At the time he walked down the footbridge, the accused said he felt tipsy and from his observation E also seemed tipsy. There was a large group of people down near the footbridge. The accused knew a few of the people in the larger group and mingled with them. It was during this time that he was also speaking with E. For some of the time he was part of a group of people and E was in that group too, they also chatted just a little away from their group of friends while having a cigarette. He spoke to her about music and movies and general conversation. He said he was attracted to her a little and was interested in getting to know her better. From the way they were getting on he formed the impression that she may have liked him too. After being in that area for an hour or more, the accused and E walked away from the larger group of people so that they could talk more easily away from the noise of the group. They walked along the pathway and sat on a retaining wall. He agreed that they had a cigarette in the area where the cigarette butts were located by the police officer early the next morning. He agrees that he may have said something to E along the lines that he would like to get to know her a bit better shortly before they walked off together. In relation to E’s evidence that a boy asked them to go to the aid of a girl who was drunk and passed out further along the river, the accused said that no such thing ever happened. At no stage were they asked to help anybody, and when they walked along the pathway at no stage did they see or assist any such person.
On this significant difference between the complainant and the accused, I was persuaded that the accused was more reliable. His account of the way that they chatted and the reason for taking a walk along the river was far more plausible than E’s account. The inconsistency about whether she saw the drunken girl for a second time added to my concerns about the plausibility of this part of her evidence.
The accused described how they walked along the pathway and then sat on the stone wall. E asked for a cigarette which he gave her. They both smoked a cigarette and talked for about 5 minutes. They were sitting next to each other on the wall. He described that they began kissing and they were both leaning in towards each other. She was sitting to his left. He could not say who initiated the act of kissing but once it started they were both willing participants. She also appeared to be enjoying it and it went on for about 5 minutes.
The accused said that he did not unzip her jacket but it was already undone. At no time did she wrap the jacket around herself or try to cover herself with it. He touched her breast then pulled down her top and began kissing her breast. At that point she said it was a bit cold for him to be doing that. He then described unbuttoning or loosening her pants and putting his hand down inside her underpants so that he was touching her vagina. He was using his right hand and they were still kissing each other. She did not resist, say anything to him to suggest that she did not want him to be touching her that way and he believed that what was happening was consensual. It continued until they were disturbed by people walking nearby at which time he removed his hand from her pants and they both recomposed themselves.
The accused denies ever pulling her pants and underwear down to her ankles, denies dropping his trousers, holding her down or having sexual intercourse with her. He said they kissed a little more after he removed his hand from inside her pants and she continued to kiss him. She then stood up and buttoned up her jeans. The accused said he had an erection and so he put his hand inside his own pants, touched his penis and adjusted himself into a more comfortable position. He said they then walked together back towards the footbridge and there were other people still there when they arrived. She asked him about the time because she wanted to catch the last bus back to Victor Harbor. She also asked about the bus station. He recalls that Jeff was still at the footbridge and the three of them walked over the footbridge together and then walked through the university grounds. At no stage did he tap her on the bottom as they walked through the university. At no stage was he challenged in any way by Jeff. There were no disagreements between any of them and no indication that any of them were upset or angry. Jordan was not there when they returned to the footbridge and walked up to the city. There may have been conversation with E about the possibility that Jordan had gone down to Hindley Street.
The accused agrees that he told E that he had to work the next day, in fact he did not have any work to go to the next day but he did not want her to think he was just a “bum” off the streets. When he got to Victoria Square he thought that E and Jeff were not far behind him. He sat on a bench and had a cigarette. He put his head in his hands because he was pretty drunk by that stage of the evening. He had continued to drink while he was down at the Torrens. He thought that he had dozed off for only 5 minutes but it must have been longer. He remembers being woken by a police officer. He recalls speaking to the policeman about getting a taxi home. When Det Heading arrived and told him about the allegation of a sexual assault he was disturbed. When he was asked questions about whether he had had sex with someone that night he said he had not because in his mind sex meant putting his penis into a woman’s vagina. He had not done that and he did not think that touching a girl on the vagina was having sex with her.
In his recorded interview at the Watchhouse the accused said that he had not been down to the footbridge area that night. In his evidence he admitted that that was not the truth. He described being “quite freaked out” so he just wanted to put himself as far away from that place as he could.[12] He did not explain to the police that he had some intimate contact with E that night which included kissing and touching her vagina with his hand because he had troubles with the police in the past when he was living on the streets and he did not think that they would believe him. In his intoxicated state he thought that he would just say that he was not there and they would then just let him go home to sleep it off. He also agreed that he told the police that he had a job to start the next morning. That was untrue but just as he had done with E, he thought that he would look more respectable in the eyes of the police if they thought he had a job.
[12] T 267-268
Under cross examination, the accused conceded that when speaking to the police he realised that the allegations must have related to his contact with E down at the Torrens. He accepted that he was not being harassed by the police who dealt with him that night. Nevertheless, he remained wary of the police. He accepted that he lied to the police about being down at the Torrens area that night and also lied about only having a brief conversation with E. It was put to him that since he believed that he had done nothing wrong there was no reason not to tell the police the truth during the interview.
In relation to meeting E that day, the accused accepted the possibility that he first met her in Rundle Mall but believed it was at Rymill Park. He was tested about the chronology of events, how much he had to drink and where they went after Rymill Park. It was suggested to him that he did in fact go to the Shisha Bar in Hindley Street after leaving Rymill Park. He accepted that he told police he had been to the Shisha Bar that night to meet up with an acquaintance Sean but that was untrue. He accepted that it was deliberately untrue but does not know why he said it but possibly to put him somewhere other than down by the Torrens.
When they all left Rymill Park as a group they did not go to the Shisha Bar and did not walk underneath the King William Street Bridge on their way to the footbridge. During the walk he may have mentioned to E that he had been in the Army and that he had a job. He agreed that after they talked for a while he thought that she was nice and he wanted to get to know her better. When they went for a walk up the pathway it was not his intention to have sex with her down there. He disputed each of the specific allegations put to him about the physical and sexual allegations made by the complainant.
In relation to the forensic evidence, the accused denied that he invented the story about touching his penis after he had been touching her vagina in an effort to explain the DNA evidence. He also denied telling lies to the police because he knew he had sexually assaulted her down at the river.
Discussion of the Evidence and Verdicts
The prosecution placed emphasis on the lies told by the accused. It urged me to find that the accused’s lies were deliberately told out of a consciousness of guilt and therefore could assist in establishing his guilt on each count of rape beyond reasonable doubt. I have directed myself about lies. I have carefully considered the evidence of the accused but I am not satisfied that he told lies out of a consciousness of guilt. He offered an explanation for his distrust of the police and to a lesser degree his statements may have been uttered during a confused state of significant alcohol intoxication. The agreed evidence is that his blood alcohol level from the blood sample taken at 4.55 am on 9 August 2008 was 0.117%g. This reading indicates a much higher level at the time he was arrested and interviewed. His appearance on the video recording does not demonstrate gross intoxication but this may tend to confirm his tolerance to high levels of alcohol consumption. In the circumstances I am not prepared to reject his explanations for the statements to the police and therefore his lies cannot be used as consciousness of guilt.

The accused did tell deliberate lies to the police and I direct myself in the usual terms that I may use that evidence in assessing his credibility as a witness. However, I found his evidence, about his general wariness of the police and his belief that the police would not believe any explanation he might offer, quite plausible. I formed the view, based on the explanations he gave about his lies and the way he gave the rest of his evidence, that he genuinely held those perceptions even though there was nothing done by any of the police officers that night to enliven his concerns. In my view his lies to the police do not damage his credibility to such an extent that I would reject his evidence about the events that evening between himself and E.
There were two excellent final addresses by the prosecutor, Ms Costi and by defence counsel, Mr Heffernan. I will not repeat their submissions. There is no need for me to do so for the reason that after careful consideration of the evidence and the arguments, I am unable to say where the truth of the matter lies. I am not satisfied beyond reasonable doubt that the prosecution has proved either count 1 or count 2.
The complainant E’s evidence during examination in chief was reasonable bearing in mind the admitted effects of alcohol, the time lapse since August 2008 and the circumstances of the alleged offences. However it was during cross examination that weaknesses in her account were really exposed. Her claims about where she first met the accused; what happened in Rundle Mall; what took place at Rymill Park; whether the group of friends went to the Shisha Bar in Hindley Street on the way to the university footbridge; what happened at the footbridge especially regarding a drunk girl needing assistance further along the riverbank; and what happened after the alleged rapes; were each significant matters. Her evidence on many of those issues was contradicted by the accused. The prosecution did not call any other witnesses who were there that evening to support or corroborate any of those aspects of her account.
E’s evidence that she spoke to the accused about his ‘Welsh accent’ was extremely odd. I do not accept that such a conversation ever took place. Although E may well be convinced in her own mind that she had that conversation with the accused, I do not believe her on that point. Nor do I accept her evidence that she and the accused were approached by a young man to go to the assistance of a drunken girl further along the riverbank. She has told inconsistent stories about whether the girl was there or not when they went back. This is not a matter which lends itself to explanation on the basis of confusion or mistake. I do not accept that it happened as E stated. It appeared to be reconstruction or invention on E’s part to explain why she walked away from her friends at the footbridge and 200 metres along the pathway with the accused. The accused’s evidence that they were not asked to go to the aid of any girl along the pathway but they walked away to find a quieter place to talk and get to know each other better, is at least a reasonable possibility. I think it is the more likely explanation as to why they walked down the pathway and sat on the wall by the river.
In relation to the events allegedly constituting the two rapes I am unable to find beyond reasonable doubt that the accused committed the acts of digital and penile sexual intercourse as alleged. E’s credibility has been significantly damaged and I am unable to accept her evidence on the critical matters beyond reasonable doubt. Furthermore, I cannot completely reject the accused’s evidence.
The explanation given by the accused in his evidence is at least a reasonable possibility. He said that he touched her vagina by putting his hand inside her pants and underpants while they were kissing each other – but it was done with E’s implied consent. He said that he did not take down her pants and did not penetrate her vagina with his penis. Their intimate contact was interrupted by people walking nearby on the pathway higher up the riverbank. They then composed themselves and walked back to the footbridge. His evidence was sufficiently detailed to provide a realistic and sensible account of how the events unfolded and how they came to an end. He was carefully cross examined but at the end of it all his account still appealed to my commonsense as at least a reasonable possibility. It is not a matter of deciding which account to believe but perhaps the best indication that the prosecution has not proved its case is that if I had to choose, I would say that the accused’s account is more likely.
By the time E rang her mother from Grote Street at about midnight it is obvious that she claimed to have been raped. Although sounding distressed in the phone call, and when speaking with the police, there was no suggestion by E that she had shown any signs of distress following the alleged events at the river. There is no evidence to confirm that she told Jeff about being raped when she met up with him at the footbridge. I have directed myself about the limited relevance of evidence of distress in circumstances such as this. There are other possible explanations for her apparent distress by the time of the phone call to her mother.
The accused gave an account of the events of 8 August 2008 which was coherent and believable. There was nothing about his demeanour or the contents of his evidence or cross examination that would lead me to dismiss it as incredible or unreliable. While E’s allegations of rape may be true, I cannot conclude that beyond reasonable doubt for either count
In respect of count 1, it is a reasonable possibility that the actions of the accused in touching E’s vagina under her pants was consensual and therefore not rape (even if there had been penetration of the labia majora with one or more of his fingers). In respect of count 2, it is also a reasonable possibility that no act of penile/vaginal penetration occurred.
Accordingly, I have a reasonable doubt about the proof of the prosecution case on count 1 and count 2 and I return verdicts of not guilty on each count.