R v Daniel Robert Shutt
[2005] SADC 167
•22 December 2005
District Court of South Australia
(Criminal)
R v DANIEL ROBERT SHUTT
Criminal Trial by Judge Alone
Judgment of His Honour Judge Muecke
22 December 2005
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
One count of rape - element of lack of consent not proved beyond reasonable doubt - verdict of not guilty
R v DANIEL ROBERT SHUTT
[2005] SADC 167Trial by Judge Alone
Judge Muecke
Introduction
The accused was charged on Information dated 13 December 2005 with rape. He pleaded not guilty and elected to be tried by Judge without a jury. I dispensed with compliance with the Rules to allow him to make such election out of time.
The particulars of the offence alleged against the accused on the Information were as follows:
Between the 1st day of April 2004 and the 30th day of May 2004 at Taperoo, had vaginal sexual intercourse with Crystal Jean Knight, without her consent.
The trial commenced before me on 13 December 2005.
The complainant’s evidence
Ms Crystal Knight (“the complainant”) was 18 years of age when she gave evidence. She was 17 years of age when the alleged offence occurred. That is notwithstanding the particulars of the offence that allege that the offence occurred between 1 April 2004 and 30 May 2004. The complainant turned 17 years of age on 5 April 2004, her date of birth being 5 April 1987.
The complainant gave evidence whilst there was a closed courtroom and whilst one‑way screen was between the dock (where the accused was) and the witness box (from where the complainant gave evidence). An exemption to the order that the court be closed was made for the purpose of the complainant having a social worker from the DPP Witness Assistance Section as a court companion during the giving of her evidence. That person sat next to the complainant while she was giving her evidence. I draw no inference adverse to the accused in light of those special arrangements and I do not allow them to influence the weight I give to the evidence of the complainant.
The complainant’s evidence was that she had known the accused for maybe 4 or 5 years. She had met him when she was in year 6 at primary school. She thought that the accused was in year 7. She thought he was two years older than she. She said that she and the accused lived in the Taperoo area. Their houses were 5 to 10 minutes walk away from each other.
After she finished primary school she kept in contact with the accused through the St. John Ambulance Service (“St. John’s”). There was a group associated with that service at Ethelton. Both she and the accused were involved with St. John’s there in April 2004. The regular meeting at St. John’s was on Monday. Whilst there were other nights when she and the accused went to St. John’s, they both regularly attended at the Monday night meeting. The complainant said that she was a cadet as at April 2004 and she thought the accused was a cadet leader.
The complainant described an arrangement that existed as at April 2004 whereby the accused would pick her up from her home to go to Monday night meetings at St. John’s. Usually Dwayne Fraser was in the accused’s car when he arrived to pick her up. The accused would then drive to pick up Kerri Brown and the four young people would then go to the St. John’s meeting. Kerri Brown was at that time the accused’s girlfriend. The complainant was not sure how long those arrangements had been in effect.
The complainant said that there was an occasion before the alleged rape when she and the accused went out to tea before St. John’s. The accused had said to her that he would buy KFC for tea. He did that and they went to the St. John’s centre and ate what had been purchased. She said that was the only occasion when she had had dinner with the accused. She said that she and the accused were not romantically involved at any time although there were occasions when they socialised together through St. John’s.
The complainant said that she had been to the accused’s home a few times before the alleged rape. She said that she thought that she had met the accused’s parents three times. She said that was mostly at St. John’s functions. She was asked how well she got on with the accused’s parents before the alleged rape. She answered: We didn’t really talk much, so the relationship wasn’t really together. She explained that she didn’t have a good relationship with the accused’s mother. She sensed that she didn’t have a good relationship because of the body language of the accused’s mother. She said there was nothing else.
The complainant was asked whether there was an occasion in April 2004 when she was picked up very early. She said there was. She said that when she spoke to police later she was asked to try and identify a date. She said that: We looked through a diary and we picked out the 24th. That was the 24th of April. She said it was a Monday night. She said when doing that she looked through some person’s diary. 24 April 2004 was a Saturday.
The complainant said the accused had telephoned her house and asked her to be ready by 4.30 pm on that day. That was about 2 hours earlier than the normal pick‑up time. The accused arrived and picked her up at 4.30 pm that day. The accused was alone in the car. She asked him where the others were and he said that Dwayne wasn’t coming and that Kerri had a school function that she was attending. The complainant said that Dwayne wasn’t at school so she kind of guessed that he wasn’t going to St. John’s that night.
The accused drove off but instead of turning in the direction of St. John’s he turned in the opposite direction. The complainant asked him where they was going and the accused said he had some things to pick up from home to take to the St. John’s centre. They went to the accused’s house. She said the accused told her that he needed some help in getting some stuff from inside. She went inside the house and took some stuff off the kitchen table and took it back to the car. She saw that the bags that she took to the car had some triangular bandages in them that were regularly used at St. John’s. The accused came out to the car and told her that there was some stuff in the back room that he wanted her to get. That was the accused’s room which was within a shed in the backyard of the house. (The accused had lived in that shed for some time. It was in the backyard of the house where his parents lived.)
The complainant said that she had not been in the accused’s shed/bedroom before. The accused asked her to help carry some St. John’s mannequins to the car. A mannequin is a dummy in the form of the upper part of the human body which is used for training purposes at St. John’s, particularly for mouth‑to‑mouth resuscitation.
The accused told the complainant that his parents were not home. She said she went into the accused’s room in the shed with hesitation.
In her evidence she described the shed and what was in it. She said that the shed door was a metal door which was capable of being locked from the inside. She agreed that it could be locked with a type of sliding bolt that secured the door. She agreed that it was the sort of lock that could be slid across and be secured with a padlock, for example. She also described two “floating shelves” which were just inside the shed to the right of the door as one entered the shed.
The complainant said that when she went inside the shed and went to grab the first mannequin the accused stopped her. He told her that was the wrong one. She put it back and grabbed for the other one of the two that were there. She was stopped by the accused who said that they were not going yet, he wanted to talk. He said that they did not have to be at St. John’s for a while and that he wanted to talk. She replied that if they didn’t have to be down at the centre she wanted to go home. He then said that they hadn’t seen each other for a while and he wanted to catch up. She repeated that she wanted to go home.
They started talking and she said that he then started to make some rude comments. He said that he wanted to have sex with her, that he wanted to put his penis inside her and that he had wanted to do that for a long time. She then said to him that she wanted to go home and that he could pick her up later. She got up and started walking towards the door intending to go home. The accused followed her and stopped her and told her that he just wanted to talk. He stopped her by putting his hand on her right shoulder as she was facing towards the door with her back towards the accused. She tried to unlock the door. He stopped her and swung her around. As he swung her around he placed his other hand on her other shoulder and pushed her towards the floating shelves that were just inside the door. She bumped her head on the lower of what she had described as two floating shelves. She said that she blacked out.
The complainant’s next memory was her lying on the bed. She said that she couldn’t remember how she got to the bed because she had blacked out. She went to sit up. She was very dizzy but she swung her legs around to the side of the bed and went to stand up. She went to walk towards the door because she noticed the accused was not in the room. As she went to walk towards the door she felt really dizzy so she had to sit down again. When she did that the accused walked back into the room and put his glasses on the floating shelves. At that time she was feeling very dizzy and felt like she was going to throw up. She tried to get up again but fell back on to the bed. The accused started to walk towards her and she then said she wanted to go home. The accused did not say anything.
The accused grabbed her shoulders and pushed her onto the bed. It was not a violent push but it had enough force in it to put her onto the bed. The accused grabbed her hands and put them on the side of her head. He had one of his knees on the bed and one on the floor. She said that the accused grabbed both of her wrists and held them above her head so she could not move them. Her head was on the pillow at that time.
The complainant said the accused then transferred his knee onto her upper leg and transferred his other knee onto her other upper leg. He was on top of her. He then tried to get her pants down, but they did not go down. He then held both her hands in one of his hands whilst using his other hand to pull down his pants. She was struggling. She told him to get off and that she wanted to go home. She said that she said that a lot. The accused told her to shut up. The accused alternated the pulling of his pants down from side to side until he got his pants down around his ankles. When his pants were around his ankles she got her head up a little bit and thought she saw a condom, the tip of a condom. She saw it on his penis. She struggled some more and told him to get off and that she wanted to go home. He told her to shut up and that no‑one was going to hear her because no‑one was home.
The complainant said that the accused then moved his knees to move her pants down. She tried to prevent him, but he tried harder. She could not hang on any longer and her pants went down. They went down to just below her knees. When he got her pants to below her knees he put his knees in between her legs so she could not move anywhere. Once he got his knees between her legs he used the hand that wasn’t holding her hands and pulled her G‑string aside. He started moving his body up and down on her and she then felt his penis go inside her vagina. It was in her vagina for a short time. She said it felt very painful. She was asked at the trial whether she could say why it was painful. She said that she could not. She said that she was telling him to get off and that she wanted to go home. She said that the accused was moaning and making a lot of weird noises before he pulled his penis out of her vagina. When he did that she saw the condom again and it looked white at the tip. She saw what she thought was sperm in the end of the condom.
The complainant said that once the accused had finished he got off her and started to organise himself. He grabbed his pants and pulled them up. She pulled her pants up, swung her lungs around and proceeded to get to the door of the shed. The accused said to her that if she told anyone her career with St. John’s would be out the window and that he wouldn’t get into trouble because no-one would believe (her). She said that she wouldn’t tell anybody.
The complainant said that when she left the shed she went back through the house and walked home. She went into her room at her home, pulled the cupboard across the door so no-one could get in, turned up her music loud, sat on her bed and cried. Later that day she saw her brother when he returned home. She had a conversation with her brother. She returned to her room, put the cupboard in front of the door again, turned the music up and didn’t come out.
The complainant said that when she entered the accused’s house she did not intend to have intercourse with him. She said he had given her no indication that he intended to have intercourse with her. She said that she did not consent to the accused having intercourse with her.
The complainant was asked whether the accused had shown any sexual interest in her prior to that occasion. She replied that he had. She then described one incident. She said that she could not remember when it was, but the accused had leant towards her to kiss her and she had told him that she was not interested. That had occurred a few weeks before the alleged rape in the accused’s shed/bedroom. It had occurred outside the St. John’s centre after a Monday meeting. She had just finished a cigarette and the accused had come to the car, unlocked his door, and had leant towards her. She thought he was going to give her a kiss and she told him she was not interested. She walked around to the passenger’s side of the car and sat down. She was asked whether there was any occasion when she had demonstrated sexual interest in the accused. She said that there was not.
The complainant described that she had suffered a bruise to the back of her head when her head struck one of the floating shelves. She said that she had had two small bruises on her upper legs which were caused when the accused was kneeling on her. She did not show these bruises to any one and she did not seek any medical attention in respect of them.
Some time after the incident the complainant received a telephone call from a police officer. (That was on 4 August 2004). The complainant gave a statement to police on 27 August 2004.
Finally in examination in chief, the complainant described the accused telephoning her after she had spoken to the police. He had told her that if she wanted to pursue her allegations he would get a lawyer.
Under cross‑examination the complainant said that before this incident she and the accused were good friends. They used to speak together on many topics, they were very friendly towards each other, and they used to share their personal experiences, including confidences.
The complainant agreed that she knew that she was 17 years of age when the accused allegedly raped her. She knew that because she knew it had happened after her birthday in early April 2004. She said that she knew at the time that she first spoke with police that it was unlawful for the accused to have sex with someone under the age of 17 years. She agreed that when she first spoke to police she told police that she was 16 years of age. She agreed that she was quite confident that she was 16 years of age when she told police that she was. She agreed that it was not until some time later that she changed that and told police that she was 17 years of age when the alleged offence occurred. That was some time after she had given a full statement to police on 27 August 2004. It was on 6 December 2004. It was after the police had approached the complainant at the request of the DPP to clarify certain matters regarding the alleged offence.
It is convenient to refer here to the fact that the accused presented himself at the police station on 19 August 2004, apparently after he had heard some rumours about an allegation that he had raped the complainant. The police did not interview him at that time. They did later, on 29 August 2004. During an extensive interview police told the accused that he had committed a serious criminal sexual offence by having sexual intercourse with the complainant regardless of whether or not she was consenting. The police were no doubt referring to the fact that it would be a crime for the accused to have consensual sexual intercourse with the complainant before she was 17 years of age. The complainant agreed in cross‑examination that she knew that. The complainant was asked:
Q. Why did you tell police that you were 16 when you were 17.
A. I initially, in my mind, thought that I was 17 and the rest of it I said that I was 16.
HIS HONOUR
Q. The question was why did you say you were 16.
A. I’m not sure.
XXN
Q. Would it be because you thought that you might get Daniel into more trouble because you were under 17.
A. No.
Q. Because you knew that it would be unlawful for Daniel to have sex with someone under 17; didn’t you.
A. Yes, I did.
It was put to the complainant that when she spoke to police she told them that she did not know whether the accused had ejaculated. She agreed that she had said that to the police when it was put to her that her evidence was that the accused had ejaculated. She said that she thought that she had said in her evidence that she wasn’t sure. She said that she was not sure whether he had.
In cross‑examination the complainant denied that the accused’s mother and father were in the kitchen and that she had, on the evening of the alleged rape, spoken to them as she and the accused had gone through the kitchen out to the back shed.
During cross‑examination the complainant identified certain photographs which were said to depict the interior of the accused’s bedroom/shed. She said that the photographs did not, in a number of ways, depict the interior of the shed as she remembered it.
When the complainant was asked to look at the statement she gave to police she accepted that the date she had discussed with police as being the date around which the incident occurred was 26 April 2004. She said that the reason why she picked 26 April 2004 was that it was a Monday and it was closer to the 24th which was the original date which had come into her head. She agreed, however, that if 26 April 2004 was Anzac Day there would not have been a St. John’s meeting on that day. She said that she knew that the incident happened in late April. She was asked whether it could have happened in May, and she said, no. When later pressed whether she could be wrong about the incident not having happened in May 2004, she replied, I could be, but I don’t remember it to be in May.
The complainant said that at some time between late April and when she spoke to a police officer at the beginning of August she discovered she was pregnant. She may have discovered that in June. She said that she was happy and excited to tell everyone that she was pregnant. She denied suggesting to anyone that the accused might be the father. She said that she had sat down with another man to try and work out whether he was the father or whether the accused was the father. She said that she and that man didn’t work out who the father was likely to be. She said that she hadn’t always believed that the other man was the father.
The complainant was asked whether she had felt any qualms about going to the accused’s house that evening when she had expected to be going to St. John’s. The complainant replied that she felt a bit uncomfortable that the accused had lied to her. She said that “uncomfortable” was the right word to describe her feelings. She then agreed that she had told police that she was scared to go to the accused’s house. She agreed that “scared” was the word she had used. She was asked why she had been scared and she replied: I’m not sure. She said that the accused’s lie was that he had told her that they were going to St. John’s and they ended up at his house. She considered that a lie, notwithstanding the accused’s explanation that he had to pick up a few things from his house before going to St. John’s. It was then put to her that she had told police that she was scared to go to the house because she and the accused’s mother did not get along. The complainant answered that they did not get along. It was put to her that she had told police that was the reason that she was scared to go there. She replied: That was one, but I was more scared for other reasons that I don’t know. She said that she was scared of the accused’s mother because of her body language. She said that his mother had shown that body language whenever the complainant saw the accused’s mother. She said that she had shown it if the complainant went into where she worked or if she saw her in the street.
It was then put to the complainant that she also had said to the police that she had stopped being scared of going to the accused’s house that evening when the accused told her that his parents were not home and that they were only going there to get first aid gear. She agreed that she had told the police that, and that was the truth of the matter.
The complainant was cross‑examined about the accused’s girlfriend Kerri Brown. When asked if she liked Ms Brown, the complainant said, we were not talking. The complainant said that she had worked out that Kerri Brown did not like her because of Kerri Brown’s body language and some harsh words that Ms Brown had said to her at the beginning of 2004.
The complainant said that when she went into the accused’s bedroom that evening and when the accused pulled over the bolt to keep the door shut that came as no surprise to her. It came as no surprise because of something that Kerri Brown had told her before the beginning of 2004. The complainant agreed that she had told police that she was not surprised when the accused pulled the bolt over because Kerri Brown had told her that that needed to be done to keep the door shut, so that it did not bang in the wind. She agreed, further, that she had told police that Kerri Brown had told her that in case she (the complainant) was going to have sex or something with the accused. The complainant’s evidence was that because of that she was not alarmed when the accused shut the door and slid the bolt, because she expected that to happen.
It was then put to the complainant that she had told police that it scared her when the accused shut the door and locked it. She agreed that it scared her, but that she was expecting it. She was then pressed as to whether it did or did not alarm her when the accused locked the door. She said that it did alarm her.
The complainant agreed that she had told police that Kerri Brown had said to her: “If you ever get in a relationship with Daniel and choose to sleep with him, to lock the door and to keep the door locked at all times so it doesn’t blow open”. The complainant agreed that Kerri Brown had said that to her and that she had told police that. She said that Kerri Brown had said that she had told her that because she (Kerri Brown) knew that the accused liked her (the complainant). The complainant was surprised to hear that because she did not know then that the accused had a thing for (her) at that stage. The complainant then agreed that she had said this to police: “I wasn’t shocked when Kerri said this to me because I did not know in a way that Daniel did have a thing for me.” Again, when pressed, the complainant said that she was surprised when Kerri Brown said that to her. When asked whether she did or did not know that the accused “had a thing for her at that time” she replied, not a strong thing.
The complainant was then asked whether she had known that Kerri Brown and the accused had broken up. She replied by saying that she knew they had fights. She was pressed, “but you didn’t know if they had broken up?”. She replied, I knew they weren’t seeing each other. She was asked, “You knew they weren’t seeing each other but you didn’t know if they had broken up”. The complainant replied, Yes. It was then put to her that she told police: “Kerri and Daniel had a really big fight over the Christmas Holidays and broke up”. In answer she said, Yes, they did. She was then pressed, “Did you know they had broken up or didn’t you know they had broken up”. She replied, I didn’t know they had broken up.
The complainant then agreed that she had told police that they had broken up. She said that she knew that they had had a fight because the accused had talked to her about it. He said that he was not so much depressed about it, he was sad. She said that she assumed he was sad because he looked sad. She said that she did not help him through the aftermath of that. She then agreed that she had told police this: “I know they had a big fight because Daniel came to me and that he was going to commit suicide because he couldn’t live any more because he loved her, Kerri, so much and I just helped him through it”.
There was some cross‑examination about when she asserted that the accused and Ms Brown broke up. She said it was in January 2004. She said that she had seen the accused in January 2004. It was put to her that the accused and Ms Brown’s father were away from Adelaide in January 2004. It was put to her that there was never any break up between the accused and Ms Brown and there was never any conversation about that between her and the accused. She denied it.
The complainant was cross‑examined about her evidence that she was not aware that the accused had any sexual interest in her except for his attempt to kiss her outside a St. John’s meeting a few weeks before the alleged rape. Before that, in her mind, they were just mates. She agreed, however, that she had told police this, “Daniel liked me and the first time I actually realised it for myself would have been after the Christmas holidays (2003/2004) when he started coming up to me and hugging me and stuff like that. This was after he had broken up with Kerri in January.” She had further told police further that she had told the accused that she wasn’t interested and that it was not going any further than friends. The accused had allegedly then said, “So you’ve got my signals.” It was then put to the complainant, “So you did know he had an interest in you.” She replied that it was not a strong interest. A document was then put to the complainant. She agreed it was in her hand‑writing. This followed:
Q. That’s a short letter from you to Daniel.
A. The handwriting is mine but the name is different.
Q. What’s different about the name.
A.It wasn’t to Daniel and it was to someone else at St. Johns and Kerry wasn’t even in it.
Q. Who was it to.
A. It was to a guy named Paul.
Q. Does it say ‘Paul’ on there.
A. No, it doesn’t.
Q. It is it ‘Paul’ the name.
A. Yes.
Q. Paul who.
A. I’m not sure of his lat name.
It was suggested to the complainant that she had written that letter in about February/March 2004 and had given it to the accused. She denied that. She agreed that it was in her hand‑writing and that the name “Daniel” is on it and not “Paul”. Her evidence was that she had not given the note to Paul but had slipped it in the pages of a book because she did school‑work at St. John’s. She said that the note went missing. She did not write Paul another note because she found out other information. She could not remember when she wrote the note, but she said that it was between when she thought the accused had split with Kerri Brown and the alleged rape. The note reads:
Daniel,
Look I feel uncomfortable with my life at the moment and I don’t really have anyone to talk to. I know you’ll say I should talk to you but Kerri is acting weird and I didn’t want to start anything. Im not going to the bar with Suellen 2morrow night because of St John problems and rumors. There not pleasant rumors either.
Well if you wanna talk I’ll talk but not around any1 or Kerri 4 one.
Cya Later babe.
ya lots
Crystal
The complainant agreed that when she had told police about the alleged rape she had said: “When I tried to unlock the door, Daniel grabbed my upper arms with his hands and turned me around by pushing on my right arm.” She was asked why she referred in her evidence to her shoulder rather than her upper arms. She replied that when she was speaking to the police and explaining it to them, they said it was more my shoulder. She agreed that there was nothing in her statement about her shoulder. She did not ask the police to correct her statement when she read it through.
It was at this point of her evidence, in cross‑examination, that the complainant said that she was screaming when the accused was having sexual intercourse with her. When asked if she was screaming loudly enough to somebody nearby to hear, she replied, in the house, maybe.
The complainant agreed that she had also said to police when she was talking to them about her waking up (from having blacked out) that she had seen the accused with his pants undone. She agreed that she had said to police, “This started to make me think about what had happened to me before when I blacked out and it made me start to freak out.” She explained that what she meant by that was that she thought then that the accused may have had intercourse with her before she had woken up from her blackout.
The complainant agreed in cross‑examination that she was aware that St. John’s had an harassment policy and that she had been taught that policy. She said that she ignored that policy because the accused had told her in the bedroom that if she told anyone no one would believe her.
The complainant denied in cross‑examination that she had ever said to people that the accused had threatened that she would lose her baby. The complainant then agreed that she had said this to police: “Daniel rang me on my mobile … last Thursday 19 August 2004 and said that if I wanted to take him to court, he would do me for false information and that when I have the baby, I will lose it and I will go to goal and everything like that.” Earlier in her cross‑examination she had referred to the accused threatening her. When asked to identify any threats she had described a telephone call when the accused said he was going to see a lawyer if she persisted with her complaints. She had not mentioned the statement about her losing the baby. She was asked whether she had forgotten about that when she had been questioned earlier. She said she had not forgotten about it. She said: I didn’t think it was a threat. He didn’t sound threatening when he said it.
Other prosecution evidence
Through Detective Senior Constable Oberscheidt a videotaped Record of Interview the police had with the accused on 29 August 2004 was tendered. In that interview the accused said that he had explained to the complainant that he had forgotten to pick up his folder and other things for the St. John’s meeting and so he had to go home. When they got there he had asked the complainant if she wanted to stay for a while. She agreed. They chatted for a while in his room. She told him that she had had feelings for him. As he had feelings for her he asked her if she wanted to kiss and stuff, and she agreed. After they kissed for a while he asked if she wanted to go further. She said “not at the moment” because she had a boyfriend. He had said that was fair enough and could they still continue kissing and stuff. She agreed and they did so. He later asked if it was alright if they had sexual intercourse and she agreed. They then had sexual intercourse, they got dressed, got into his car and went and got KFC for tea. She rang her boyfriend from the car (using the accused’s mobile phone) and made arrangements for them to see each other on the weekend. They then drove to St. John’s.
Later in the interview the accused denied using any violence towards the complainant.
Detective Senior Constable Oberscheidt was asked about that part of the interview with the accused in which she told the accused that it was a criminal offence for him to have had consensual sexual intercourse with the complainant when she was aged 16 years. Detective Senior Constable Oberscheidt said that when she put those matters to the accused she was relying on the complainant’s original statement in which she had said that she was 16 years of age at the time of the incident. The detective’s interpretation of the complainant’s statement was that the complainant had been fairly clear about that. She said it was not until 6 December 2004, when she made an appointment for her to see the complainant, that the complainant disclosed she was 17 years old, not 16 years old. That appointment was made at the behest of Detective Senior Constable Oberscheidt, not at the behest of the complainant.
Mr Andrew Inglis is the Divisional Superintendent at the adult Division of the Port Adelaide St. John’s Ambulance. Mr Inglis produced a roll on which there was indicated the attendances by members of St. John’s at Monday night meetings in 2004. The effect of his evidence was that a “P” appeared on the roll where a member attended on a particular night. Where there was a blank that person either did not attend at all, or attended briefly and did not stay for the bulk of the training night. The roll indicates that there was no meeting on Monday 26 April 2004. It indicates that Kerri Brown, Dwayne Fraser and the accused were present at the meeting on Monday 19 April 2004 and that the complainant either did not attend at all or did not stay for the bulk of the meeting. The roll also indicates that both the complainant and the accused were present at the meeting on Monday 3 May 2004, but that neither Kerri Brown nor Dwayne Fraser were present, or if they were they did not stay for the bulk of the meeting.
Mr Inglis also gave evidence that the mannequins owned by St. John’s at Port Adelaide did not normally leave the centre. There were rare occasions when they did, for demonstrations or for general interest talks to other community groups. If that happened, depending upon the circumstances they may not be returned the same day. They might be out overnight, but that did not happen very often.
The defence case
As previously mentioned the accused presented himself at a police station before police approached him. Later he was asked to speak to police and a lengthy interview was conducted with him.
An accused person, on his trial, is legally entitled to give evidence in his defence or refrain from giving evidence. The choice is his. In this case Mr Shutt did not give evidence. He was not obliged to do so and there may been many reasons why he did not do so. It is for the prosecution to prove its case beyond reasonable doubt and I draw no inference from the accused not having given evidence.
There was some evidence produced by Mr Stokes, counsel for the accused.
The effect of some of that evidence was that the accused had a good reputation amongst those people who knew him. He had a reputation of being honest and loyal. One witness described him as being reliable, courteous, honest and generally a nice young man. There was evidence that his reputation had not been effected by the rape allegation that is the subject of this trial.
When some witnesses were asked about the complainant’s reputation amongst people they knew, it was said that she had shown signs of dishonesty in the past. One said that she could be manipulative and that she had a tendency, if someone upsets her, to make up stories and defame them with their colleagues. Some witnesses said they would not believe her on her oath and that she is not an honest person.
The accused’s parents gave evidence. Mrs Shutt’s evidence was that the photographs of the accused’s bedroom/shed reflected the interior of the shed at time of the alleged rape. Mrs Shutt also contradicted the complainant’s evidence concerning the details of a number of topics. In particular, she gave evidence that she was in the kitchen on the only occasion that the complainant came to her home with the accused. She said hello to the complainant and the complainant and the accused then went out to his bedroom at the back of the house where they remained for some hours. When the complainant left Mrs Shutt said goodbye and wished them a good night at the St. John’s meeting to which she understood they were going. The complainant said goodbye to her with a smile on her face and was very pleasant. She did not look distressed at all.
Mrs Shutt said that that happened on a Monday night. She could say that because the accused was going to a St. John’s meeting and that was the only day of the week that she and her husband had off from their chicken shop business. Mrs Shutt said she heard no screaming, or any sound, coming from the back shed in the hours that the complainant and the accused were there.
The accused’s father also described the complainant and his son coming home that night, walking through the kitchen, greeting him and going out the back to the accused’s bedroom/shed. He heard no screaming during the time that they were there.
Legal considerations and directions
Accused persons come to this court with the presumption of innocence in their favour. The law regards them as innocent unless their guilt is proved beyond reasonable doubt. The burden of proving a particular charge lies wholly upon the Crown. An accused person does not have to prove anything. If an accused person puts forward a defence, he or she does not have to prove it. Furthermore, nothing short of proof by the Crown beyond reasonable doubt will do. It is not enough for the Crown to show a mere suspicion of guilt or to show that an accused person is probably guilty. In this case the accused is not to be convicted of the charge against him unless his guilt has been proved to my satisfaction, beyond reasonable doubt.
Furthermore, the requirement of proof beyond reasonable doubt extends to each and every element of the offence. I cannot convict the accused so long as I have any reasonable doubt as to any essential element of the crime charged against him. If I am left with a reasonable doubt about his guilt as to the charge then I must give him the benefit of that doubt and find him not guilty.
If I am satisfied to the exclusion of reasonable doubt about the truth of the charge brought against the accused, I should bring in a verdict of guilty.
If, in these reasons for judgment, I refer to matters being “proved” or “satisfied” or “established” I mean “proof beyond reasonable doubt”.
The accused is charged with rape.
Rape is committed when a person has sexual intercourse with another person without the consent of that other person, knowing that the other person does not consent or being recklessly indifferent as to whether the other person consents.
Sexual intercourse means the penetration by the penis of the female’s labia majora, or lips or folds of skin outside, but adjacent to, the entrance to the female’s vaginal canal. That is the sense in which sexual intercourse is alleged on the Information against Mr Shutt.
To establish the charge against the accused the prosecution must prove beyond reasonable doubt three elements or ingredients which together make up the offence.
The first element or ingredient is that the accused intentionally penetrated Crystal Knight, at least as far as penetrating her labia majora, with his penis.
I am satisfied beyond reasonable doubt that this element has been proved in this case. It is not in dispute.
The second element of the offence is that Crystal Knight did not consent to sexual intercourse. Consent is the free, willing and voluntary participation in an act of sexual intercourse with a particular man at a particular time and place. Consent may be indicated by words or conduct or both. The question whether Crystal Knight consented to the act of sexual intercourse that I find proved beyond reasonable doubt is a question of fact. This second element is a real issue in this case.
The third element of the offence is that the accused knew that Crystal Knight was not consenting, or was recklessly indifferent as to whether she was consenting. The accused would be recklessly indifferent if, knowing that Crystal Knight might not be consenting, he proceeded to have sexual intercourse with her irrespective of whether or not she was consenting. If I am satisfied that Crystal Knight did not consent to the act of sexual intercourse that I am satisfied occurred, then it would be necessary for me to consider whether or not I was satisfied beyond reasonable doubt that the Crown had established that the accused knew that Crystal Knight was not consenting, or that he was recklessly indifferent as to whether or not she was consenting.
It was an agreed fact at the trial that the accused has no criminal history. There was also the evidence to which I have referred about his good character. I am entitled to bear in mind both the fact that the accused has no prior convictions and the evidence of his good character when considering whether I am prepared to draw from all of the evidence a conclusion of his guilt. I should bear those matters in mind as factors effecting the likelihood of the accused committing the crime charged. I may also bear in mind that people do commit crimes for the first time and that evidence of previous good character cannot prevail against evidence of guilt that I find to be convincing notwithstanding the accused’s previous character.
The accused made statements to the police during his extensive interview with them by which he sought to exonerate himself. That is evidence that I must consider and take into account along with all other evidence in the case. His statements are, however, self‑serving statements which were not on oath and were not subject to cross‑examination. I should give them such weight as I see fit, bearing in mind those considerations.
Conclusions and Verdict
The Crown case rests almost entirely upon the evidence of the complainant, Crystal Knight.
I have set out in some detail in these reasons her evidence‑in‑chief and the evidence that she gave when cross‑examined by Mr Stokes.
I have concluded that I cannot rely on the complainant as being a witness of truth on vital matters that go to the second element or ingredient of the offence of rape, that being consent. I do not believe the complainant’s evidence that she did not consent to the act of sexual intercourse between she and the accused in his bedroom. Not only do I have no confidence in the complainant’s credibility, I cannot be confident of her reliability in much of the evidence that she gave. I am simply unable to say what of her evidence is fact and what is fiction.
In coming to the conclusions to which I have just referred I have not had regard, nor given any weight, to the failure by the complainant to make a complaint about what she alleged to be the accused’s rape of her. The failure by an alleged victim of a sexual offence to make a complaint does not necessarily mean the allegation is false. The victim of a sexual offence could have a valid reason or have valid reasons for failing to make a complaint or for delaying in making a complaint. I do not, however, believe the explanation the complainant gave for failing to make a complaint.
My conclusion regarding the complainant’s credibility and reliability has been reached by me independently of what the defence witnesses said regarding her reputation for dishonesty.
The inconsistencies between the complainant’s evidence when compared to what she told police a few months after the incident are so striking as to lead me to conclude, in conjunction with other evidence on which I am satisfied I can rely, that the complainant has been untruthful in her evidence before me and was untruthful with the police on matters vital to this charge. I do not consider that her young age when this incident occurred and her young age when she gave evidence before me is such as to explain those inconsistencies.
I have so concluded, principally on the basis of the evidence of the complainant, but also when that evidence is taken with the evidence of Mr & Mrs Shutt, the evidence of Mr Inglis and Mr Dippy of St. John’s and the evidence of Ms Kerri Brown. Each of those witnesses were impressive. I am confident I can rely on their evidence.
I consider that the incident probably occurred on Monday 3 May 2004. That was the day when Kerri Brown and Dwayne Fraser did not attend the meeting at St. John’s. I am not prepared to infer that the accused lied to the complainant when he told her that those two persons were not attending at the meeting on the Monday night of the incident. The complainant’s own evidence was to the effect that she had independently guessed that Dwayne Fraser would not be there that night. That finding supports a finding that the accused and the complainant attended the St. John’s meeting after they had sexual intercourse in the accused’s bedroom/shed.
I am also satisfied that Mr & Mrs Shutt’s evidence that they were home when the complainant and the accused came to their house on what I find was the night of the incident is reliable. I am satisfied that they were at their home when the accused and the complainant went through the kitchen and out to the accused’s bedroom where they later had sexual intercourse.
I considered that some aspects of the complainant’s evidence bordered on the bizarre. In that category is her evidence about being scared of the accused’s mother and her being unable to identify the reason for that. Another example is her evidence regarding the note which I find she wrote to the accused before the incident on 3 May 2004. To suggest that that note was written by her to “Paul” strains credulity beyond breaking point. I do not believe her evidence to that effect. I consider that she was untruthful in that evidence.
There was then the fact that the complainant told police initially that she was 16 years old when the incident occurred when she knew that her age was relevant to a possible criminal charge against the accused regardless of consent. She could not explain why she told police she was an age that she knew to be wrong. I can make no finding as to why she told such a lie to police. It may be because she thought that by doing so the accused would be likely to get into trouble whether or not she was believed about her lack of consent to sexual intercourse with him. It may be for that and/or for some other reason. The fact that she did lie to police indicates to me, together with the other matters to which I have referred, that her evidence at the trial cannot be relied on such as to satisfy me that she did not consent to the act of sexual intercourse with the accused.
I have not, in these conclusions, dealt with each and every factual matter or issue that arose at the trial. I have referred to some of the more important matters. I have considered all of the evidence as well as the submissions of counsel.
My conclusion is that the overwhelming likelihood is that the act of sexual intercourse that occurred between the accused and the complainant on, probably, Monday 3 May 2004 was an act of consensual sexual intercourse between them.
Accordingly, I am not satisfied beyond reasonable doubt that Crystal Knight did not consent to the act of sexual intercourse with the accused that I am satisfied occurred.
Accordingly, the Crown has not proved each element of the offence beyond reasonable doubt.
Accordingly, my verdict on the sole charge on the Information against the accused is not guilty.
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