R v Csorba

[2010] SADC 22

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v CSORBA

[2010] SADC 22

Reasons for the Verdicts of His Honour Judge Clayton

19 February 2010

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

Trial by judge alone - accused charged with four counts of rape - element of lack of consent not proved beyond reasonable doubt.

Verdict:  Not guilty of all counts.  Defendant discharged.

Criminal Law Consolidation Act 1935 (SA) s 48, referred to.

R v CSORBA
[2010] SADC 22

1. Mr Csorba is charged with four counts of rape. 

2. In the case of count 1 it is alleged that between 1 June 2007 and 4 June 2007, at an unknown location, the accused had sexual intercourse with the complainant without her consent by causing her to perform an act of fellatio upon him. Count 2 alleges an act of vaginal sexual intercourse, count 3 alleges a further act of fellatio and count 4 alleges a further act of vaginal sexual intercourse.  All four counts are alleged to have occurred as part of the same interlude. 

3. The accused has admitted each of the acts of sexual intercourse.  The issue is whether the Crown has proved beyond reasonable doubt that the acts of intercourse were without the consent of the complainant and that the accused knew that she was not consenting or proceeded with reckless indifference.

4. The evidence establishes and the accused admits that the first two acts of intercourse occurred at Moana Beach during the night of 2 and 3 June 2007 and the acts which give rise to counts 3 and 4 occurred as the accused and the complainant were driving from Moana Beach. 

5. At the time the complainant was 17 and the accused was 39 years of age.  The complainant had experienced difficulties finding accommodation and at the relevant time was staying with Mr Forbes, the stepfather of a school friend.  Mr Forbes was also a friend of the accused.  Since the end of February 2007 she had been in a relationship with a man whom she has since married and on 2 June 2007 was about three months pregnant to him.  I will refer to him as Josh.

6. On Saturday 2 June 2007 the accused visited Mr Forbes’ house.  Mr Forbes and the complainant were both at home.  During the course of a conversation about progress with her driver’s licence the complainant mentioned that she needed to get her driving hours up in order to progress from L-plates to P-plates.  The accused agreed to take her driving.  During the afternoon the accused did take her driving around Two Wells and Virginia.  At some time the accused collected his own two daughters from his home in Virginia where he lived with his wife and returned to Mr Forbes’ house.  The daughters were younger than the complainant, but one of them was known to the complainant because she attended the same school.

7. During the afternoon the group went bowling and then returned to Mr Forbes’ home for tea.  After tea some of the group played Cluedo.  The accused was not interested in that game and offered to take the complainant driving again.  She accepted his offer and the two of them left Mr Forbes’ home at around 9 pm.  The two daughters of the accused and Mr Forbes remained at Mr Forbes’ home.

8. At first the accused allowed the complainant to drive.  They went to a service station in Salisbury where they obtained fuel for the car and some refreshments for which the accused paid.  The accused then said that he would drive.  He drove south into the city of Adelaide and then continued away from the city and ended up on the beach at Moana where he stopped.

9. The complainant said that when the accused stopped the vehicle she noticed the ocean and a cliff behind on which there were houses.  There was no lighting and it was dark.  There were no other persons or vehicles.  She said to the accused “You would be stuffed out here if you were in trouble because nobody would be able to hear you.”

10. The evidence of the complainant was that the accused said to the complainant “Easy way or hard way?” At first the complainant did not understand what he meant and did not reply.  However she quickly worked out that he wanted to have sex with her and when he repeated the statement she replied “No way”.  She said the accused repeated the statement about 4 or 5 times and on each occasion she replied “No”.  She said the accused then struck her on the right side of her face bending the frame of her glasses and causing her to have a black eye.

11. I digress to mention that there was no evidence from any other person who observed either the black eye or the damaged glasses frame.  Evidence was given by Mr Forbes and Josh who both saw her during the time that the black eye should have been obvious.

12. To return to the story, the complainant gave evidence that she was scared and started crying.  She did not remember the ensuing conversation but did remember telling the accused he could not do it because she was pregnant and had a boyfriend.  The accused responded by saying that at least she would not get pregnant.  He told her to take her clothes off and she said that she did not want to do it.  He said that if she did not do as he asked he would hurt her again.  She said “I ended up doing it because I was scared he would do it and hurt my baby.”  She took off all her clothes whilst she was in the front passenger seat.  The accused took off his clothes and told the complainant to get into the back seat.  She did that by climbing between the two front seats.  In a way which is not clear the accused also got into the back.

13. The complainant could not recall where she positioned herself when she first got into the backseat.  The accused was fully undressed.  She said he started kissing her but she held her mouth shut and the accused told her “to do it” otherwise he would hurt her.  She said she was crying and just lying there and had her eyes closed “Because I didn't want to see it.  I just didn’t want to be there.” She said that the accused put his penis inside her vagina and moved back and forward.  When he stopped he made her get into other positions.  He was lying on the backseat and made her get on top again with his penis inserted in her vagina.

14. The complainant says that she did not want to have sexual intercourse with the accused and that she did not give him permission to have sexual intercourse with her.  She said she was scared and just wanted to go home.

15. When asked what else he did she said “He put his penis inside my mouth”.  She said she had been told to and when she said “No … he grabbed my head and pushed it down to his groin area” and made her put his penis inside her mouth.

16. She could not remember where they were in the car when that happened, but thinks she was in the back.

17. She did not want him to put his penis in her vagina and did not give him permission to put his penis in her mouth.

18. She said again that she was scared and just wanted to go home because she wanted it to be over.

19. When asked about the sequence of the two acts she said that the penile intercourse came first and the act of fellatio followed.

20. If accepted beyond reasonable doubt that evidence would establish the first two counts.  As I have mentioned the acts of intercourse are admitted and the evidence of the complainant establishes lack of consent by the complainant and the knowledge of the accused of her lack of consent.

21. The complainant said that as a means of getting out of the situation she told the accused that she would suck on his penis if he took her home.  She said that she did that because she wanted to go home.  She said “I didn't think there was any other way because I told him to stop several times and he wouldn’t.”

22. When she made that offer to the accused he said "fine".  She returned to the front seat and replaced her clothes.  The accused put his clothes on with the exception of his trousers.  She said that the accused drove off but “I wasn’t doing it for about 10 minutes, then he told me to do it otherwise he would force my head down again” and “I ended up doing it so he wouldn’t hurt me.”  She put his penis inside her mouth.  That gives rise to the third count on the information.

23. That evidence raises different issues as to the question of consent. Count 3 is different from the other counts because the evidence suggests that the complainant volunteered, without any prompting from the accused, to perform fellatio if the accused permitted her to drive home, although she also said that she did not place his penis in her mouth willingly but did it because she wanted to go home so that she could get it over. The issue is whether she made that offer because she wanted to drive or because she was scared. Consent which is obtained by means of threats or fear is not true consent. 

24. As a result of the findings which I refer to below it is unnecessary to address the difficult question of whether the complainant had, in the circumstances which are described, consented to the act of intercourse.  Also, and more importantly, in those circumstances the Crown has not established that the accused knew that the complainant had not consented to the acts which give rise to count 3.  If the complainant said that she would fellate the accused if he drove her home the Crown has not proved beyond reasonable doubt that the accused knew that the complainant was not consenting.  In those circumstances he was entitled to assume consent.

25. The complainant said that after they had been driving for a while the accused stopped the car, pulled over and said that he had changed his mind and told her to take her clothes off again.  He then put the passenger’s seat down flat and got on top of her again.  She described an act of intercourse.  She said that the accused ejaculated, stopped and then returned to the driver’s side. 

26. The complainant gave evidence that she did not want the intercourse to happen on that occasion and that she did not give the accused permission.  She gave evidence that she said “No” but he still did it.  She said that at that time she was scared.  If that evidence was accepted it would establish lack of consent and the accused’s knowledge of the lack of consent or reckless indifference.  The question is whether that evidence can be accepted beyond reasonable doubt.

27. The complainant said with respect to the conduct which gives rise to count 4 the accused told her that she could drive home if she wanted to.  She said that she did drive so that he could not stop the car again.

28. That evidence of the complainant, if accepted, would establish the essential ingredients of count 4.

29. On her return home the complainant went inside the house and walked straight to her bedroom.  Mr Forbes was sitting at the kitchen table waiting and the daughters of the accused were asleep on the couch.  When the complainant heard the accused’s car leave she went to her bedroom and telephoned Josh on her mobile phone.  He was staying at the home of an aunt because he had attended a football function with his cousin.

30. She said Josh asked why she was ringing so late and she then burst into tears and told him what had happened.  She said that she told him that the accused took her for a driving lesson, took her to the beach and raped her.  She started crying and Josh was really angry.  They spoke over the telephone for about half an hour.

31. She stayed in bed for some hours but was unable to sleep.  When she did get up she saw Mr Forbes.  Later Josh arrived.

32. The incident was not reported to the police until late August.  The complainant said she did not report the matter because she wanted to forget it and move on, but others encouraged her to report it.

33. Normally a complaint to a third person at the earliest reasonable opportunity, such as the statement which the complainant said she made to Josh over the telephone, has the effect of supporting the evidence of the complainant, particularly if it indicates behaviour which is consistent with the allegations that are made.  For reasons which I will mention later I am not satisfied that I can treat the statement to her boyfriend in that way.

34. The complainant gave evidence that the accused asked if she was going to tell any one and she said “No” because she didn’t want to talk about it and just wanted to forget about it.  She said the accused told that he did not care whether she told anyone or not.

35. The complainant gave evidence that as at the weekend of 2 and 3 June 2007 she did not have any sexual interest in the accused, she had no interest in him as a potential partner and she was not interested at all in having sexual intercourse with him.  She said that she did not say anything to him or do anything while she was in his company on 2 and 3 June that might have made him think that she was interested in having sex with him.  She said that she had not done anything of that nature on any prior occasion when she saw him.  She said that she had no interest in the accused because she had a partner who was closer to her age, had similar interests and was much better looking.  She said that she loved her partner.  What the complainant said on this topic is supported by common sense and logic.  It is difficult to see why the complainant would have wanted to have consensual intercourse with the accused, particularly when she was pregnant and had her own boyfriend.

36. The complainant is an intelligent woman who gave her evidence in a straightforward way.  If the case was to be decided on the basis of her evidence alone I might have been satisfied that the Crown had proved all the ingredients of the offence of rape beyond reasonable doubt.  However there is other evidence which I need to take into account.

37. The accused elected not to give evidence.  That was his right and the exercise of that right cannot be held against him.  However he did participate in an interview with police officers on 18 November 2007.  He did that voluntarily and was not represented by a legal adviser.  Of course what he said during the interview was not subjected to cross examination, but his interview does give insight into his version of the events.  In the interview he denied that the acts of intercourse took place without the consent of the complainant.

38. In brief his statement during the interview was that he had held the hand of the complainant as they were going through the Big Dipper on route to Moana.  He said that when they were at Moana “it just happened”.  It was the first time that he had had sex with her.  They started kissing and fondled each other.  The accused referred to acts of consensual intercourse.  There are differences between the evidence of the complainant and what the accused told the police as to the sequence of events.  He said that initially he performed cunnilingus.  The complainant did not refer to that.  It is unnecessary to make a step-by-step comparison of the respective versions of the interlude.

39. There are a number of troublesome issues about this case.  One of them is that the complainant and the accused were absent from Mr Forbes’ home from about 9 pm until 4.30 or 5.30 am, that is approximately eight hours.  Exhibit P8 is a map which shows the distance from Two Wells to Moana to be approximately 72 km. 

40. The evidence does not establish the precise time at which the different events occurred.  Assuming that, with the visit to the service station, it took one and a half to two hours to travel from Mr Forbes’ home to Moana, they should have arrived at the beach at no later than 11 pm.  If it took a similar period to return from Moana to Mr Forbes’ home and making allowance for the time associated with count 4 it would seem that the complainant and the accused must have left Moana between 2.30 and 3 am.  On that rough calculation they would have been at Moana Beach for approximately three and a half to four hours.  That seems an inordinately long time for the acts which are alleged to constitute counts 1 and 2, particularly if there was no consent. 

41. The complainant gave evidence that she had her mobile phone with her but the accused had told her to turn it off because he didn’t like phones ringing while driving.  She was specifically asked whether she used her phone from the time when they arrived at the beach until she eventually drove home.  She said “No, I turned it on and Josh sent me several messages and rang me several times” and he said to ring him if she was still awake.  She said that her phone was turned back on “after it all happened when we left”, that is when they left the beach to go home.  She said while they were on the beach the phone was off.  She could not remember whether the phone was on or off before she got behind the driver’s wheel to finally drive home.

42. In cross-examination the complainant said that if Josh had phoned between 9 pm and 4.30 or 5.30 am he could not have spoken to her.

43. The complainant denied sending any SMS messages between 9 pm and 4.30 or 5.30 am the following morning.  Specifically she denied sending an SMS from her phone to Josh’s phone immediately after midnight.  She denied speaking to Josh for 84 seconds at three minutes and 14 seconds after midnight and she denied having sent him SMS messages in the minutes before that.

44. It was put to the complainant that at about three o’clock in the morning her boyfriend rang and spoke on the phone for about a minute and a half.  She denied that.

45. She said that when she turned the phone on she saw that she had missed calls from her boyfriend but did not remember the time because she was not looking at the time.  She could not remember whether that was while she was in the car with the accused or after she got back to Mr Forbes’ house that she found the messages.

46. Later she said “All I remember is that I had my phone off because I was not allowed to have it on” and the phone was off from nine o’clock until when she got back to Mr Forbes’ house and she could not have sent any SMS messages.

47. When the cross examiner suggested that she had sent two SMS messages to Josh’s phone at a time when she said that her phone was off, the complainant said “as far as I remember it was off but it was two-and-a-half years ago, so one can’t really expect to remember every single detail but as far as I remember it was off.”  When the cross examiner suggested that her evidence was becoming less certain her evidence was:

    "QI am suggesting to you that you are now not as certain as you might be about that because you realise there might have been some evidence that points to the contrary, points to the fact that you did indeed sent messages immediately after midnight.

    AThe records, I don't understand them.  There could be the fact that there were incomings and Josh could have left some messages on my net band.  I don't know because I don’t understand it.

    QHH. Miss…, what is being suggested to you is that there were outgoing SMS messages made from your telephone at around midnight on that night of 2 and 3 June.

    AYeah.  If the records say that it is it must be but as far as I remember it was off."

48. Exhibits A1 and A2 are extracts of the records of Telstra together with an explanatory statement by an officer of Telstra.  Exhibit A1 shows telephone calls made from the complainant’s phone.  Exhibit A2 shows telephone calls made to the complainant’s phone.  The exhibits show the number of the other party. From those exhibits the following activity between approximately 8 pm on 2 June and 5.20 am on the morning of 3 June is apparent on the complainant’s telephone:

    1.    20.01.16     Josh calls complainant - 157 seconds

    2.    20.15.10     Telstra forwarded message to complainant

    3.    21.49.38     Telstra forwarded message to complainant

    4.    21.49.43     Telstra forwarded message to complainant

    5.    21.50.49     Complainant forwarded SMS to Josh

    6.    21.51.41     Telstra forwarded message to complainant

    7.    21.52.04     Complainant forwarded SMS to Josh

    8.    22.40.24     Telstra forwarded message to complainant

    9.    23.59.24     Telstra forwarded message to complainant

    10.    00.01.41     Telstra forwarded message to complainant

    11.    00.01.44     Telstra forwarded message to complainant

    12.    00.01.45     Telstra forwarded message to complainant

    13.    00.00.35     Complainant forwarded SMS to Josh

    14.    00.02.48     Complainant forwarded SMS to Josh

    15.    00.03.14     Josh telephoned complainant - 84 seconds

    16.    03.11.38     Telstra forwarded message to complainant

    17.    05.20.32     Complainant forwarded SMS to Josh

    18.    05.22.02     Telstra forwarded message to complainant

    19.    05.22 .29    Complainant telephoned Josh - 2399 seconds

    20.    08.59.06     Telstra forwarded message to complainant

    21.    08.59.11     Telstra forwarded message to complainant

    22.    08.59.17     Telstra forwarded message to complainant

    23.    09.03.40     Josh called complainant - 324 seconds

1. The evidence indicates that the messages forwarded to the complainant by Telstra were likely to be messages from Josh to the complainant.  There is no reason not to accept the records of Telstra as being accurate.

2. Items 5, 13 and 14 indicate that the complainant’s evidence that the mobile phone was turned off from about 9 pm when she left Mr Forbes’ house until the early hours of 3 June is incorrect.  Those items are messages from the complainant’s phone which must have been switched on in order to send the message.  Her evidence has been shown to be incorrect in a significant respect. 

3. It is not just the inaccuracy in the complainant’s evidence which is of concern.  The more troubling aspect is that the situation which is revealed by the telephone records disproves the underlying thesis of her evidence, that is that the accused took the complainant to a remote spot and because her mobile phone had been turned off she was unable to communicate with others.  The fact that she was able to originate messages to Josh, at around midnight, cannot be reconciled with the other evidence.  It is inconsistent with counts 1 and 2 taking place at around that time.

4. Items 5, 13 and 14 indicate that the complainant’s mobile phone must have been switched on at 21.50.49, when they had been away from Mr Forbes’ house for approximately 50 minutes, and also just after midnight when the complainant and the accused were likely to have been at Moana Beach.  The complainant’s SMS messages indicate that she initiated contact with Josh shortly after midnight. 

5. Item 15 establishes that Josh contacted her about three minutes after midnight.  The duration of the call, 84 seconds, suggests that Josh did not simply leave a message with the message bank.  The record indicates that the complainant spoke to Josh for over a minute at around the time when the events which give rise to counts 1 and 2 were likely to have been committed.  Such a telephone call is quite inconsistent with the complainant having been raped.  Furthermore items 13 and 14 establish that the complainant’s mobile telephone was switched on at the time that the call evidenced by item 15 was made.

6. Items 5, 13, 14 and 15 are objective evidence that the complainant’s evidence was inaccurate in a material respect.  That inaccuracy must, at least, create doubt about her other evidence.

7. There is no corroboration of the complainant’s evidence that the accused hit her.  No other person saw the alleged black eye or the damaged spectacles.  Many people including Mr Forbes and the complainant’s boyfriend Josh would have seen her at a time when the black eye should have been obvious.

8. The cross examiner suggested that the penile/vaginal intercourse commenced on the front seat and they moved into the back after the complainant hurt her back.  She denied that.  One observation which must be made is that even on her own evidence the complainant never provided any resistance to the accused and in fact moved from the front seat to the back naked.  If her cooperation had been secured as a consequence of a combination of the remote location, the blow to her head and the complainant’s fear of further assaults, the necessary ingredients for the offence of rape would still be established. 

9. Another objective fact which creates doubt about the evidence of the complainant is the period that was spent away from Mr Forbes’ home, in particular the period the complainant and the accused must have spent at Moana Beach.  They must have been at the beach for a considerable period.  The complainant said that neither of them fell asleep at the beach.  The events described by the complainant which give rise to counts 1 and 2 would not have occupied anything like the time they were at the beach.

10. As I have mentioned the complainant made a statement to the police on 26 August 2007.  In that statement she told the police that the first thing that occurred was oral sex, the act of fellatio alleged in count 1, and the second thing was the penile/vaginal sex alleged in count 2.  The complainant attempted to explain that discrepancy between her evidence to the court and her statement to the police on the basis that she could not be expected to remember everything. 

11. Because the acts of intercourse have been admitted by the accused, the sequence of events may not be as important as it might be in a case where the acts of intercourse are in dispute.  However, the surrounding circumstances, in particular the sequence of the events, throw light upon the question of whether the acts were consented to.  This discrepancy between the evidence of the complainant to the court and what she told the police officers as to the sequence of events is another thing which casts doubt upon the reliability of the complainant’s evidence.

12. The cross examiner suggested that the reason why it took over two and a half months to go to the police was that there was no rape but that she was pressured into it by her boyfriend and family.  In his closing address Mr Stokes suggested that she had sex, had been caught out and had to find a way to explain what had happened.

13. The complainant said that when she turned her phone back on there were a number of messages from Josh.  Exhibits A1 and A2 are consistent with that.  She would have been under pressure to explain her whereabouts.  There is the possibility that when she contacted Josh that was to respond to his messages and I do not think I can treat her complaint to Josh as being corroborative of her evidence in the same way that one would with a recent complaint which was volunteered spontaneously.  There is the possibility that the complainant rang Josh because she wanted to respond to his messages.  There may be something in the defence suggestion that she needed to explain her activities.  I observe that the complainant said nothing to Mr Forbes when she arrived home and did not complain to the police for almost three months. 

14. In his address the prosecutor made many valid points.  I accept that at face value the evidence of the complainant appeared authentic.  It is difficult to see why a 17-year-old schoolgirl, who was pregnant to a boyfriend whom she said she loved should have been sexually attracted to a 39-year-old man who was the father of a girl she knew at school.  However I cannot find the charges proved beyond reasonable doubt on that basis. 

15. It would not be sufficient if I thought that the accused might have had intercourse without her consent or even if I thought that the accused probably had intercourse with the complainant without her consent. The question is whether the Crown has proved its case beyond reasonable doubt.

16. For the reasons which I have mentioned I do have some doubt.  The telephone records establish that the complainant’s evidence that her phone was turned off was inaccurate.  In that respect her evidence is unreliable.  More importantly, the underlying theme of her evidence, that is, that she was taken to a secluded spot and deprived of telephone contact during the period when the offences were committed, is clearly wrong.  The records show that there was contact between herself and Josh at around midnight, which was around the time when, on the complainant’s evidence, the offences were likely to have taken place.  There is also the absence of evidence corroborating the alleged black eye and broken glasses.  There is the fact that she did not tell a medical practitioner that she had been raped.  She did not report the matter to the police for almost three months.

17. In these circumstances it is unnecessary to consider, in relation to count 3, the interesting question as to whether when the complainant offered to fellate the accused if he took her home the complainant’s agreement to the act of fellatio that followed was a consequence of a threat, fear of the use of force or the fact that the complainant was unlawfully detained at the time. Section 46 of the Criminal Law Consolidation Act did not come into effect until 23 October 2008, which was after the alleged offences.

18. The Crown has not proved beyond reasonable doubt that the sexual acts which are admitted were without consent.  In these circumstances verdicts of not guilty must be returned in the case of each count.