R v De Wilde
[2022] SADC 116
•23 September 2022
District Court of South Australia
(Criminal)
R v DE WILDE
Criminal Trial by Judge Alone
[2022] SADC 116
Reasons for the Verdicts of her Honour Judge Tracey
23 September 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
The defendant is charged with three counts of rape. The accused denies that sexual intercourse took place without the complainant's consent or that he was recklessly indifferent.
Verdict: Not guilty to all counts.
R v DE WILDE
[2022] SADC 116
The accused, Sebastian Edwin De Wilde, is charged with three counts of rape contrary to s 48(1) of the Criminal Law Consolidation Act 1935 (SA). It is alleged that on 19 March 2020 he had sexual intercourse with JM when she was not consenting. The accused admits that three acts of sexual intercourse occurred but says that he believed JM was consenting. He pleaded not guilty to the offences and elected to be tried by judge alone. The charges are as follows:
First Count
Statement of Offence
Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Sebastian Edwin De Wilde on the 19th day of March 2020 at Belair, engaged or continued to engage in sexual intercourse with [JM] by causing her to perform an act of fellatio upon him, without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was not so consenting.
Second Count
Statement of Offence
Rape. (Ibid).
Particulars of Offence
Sebastian Edwin De Wilde on the 19th day of March 2020 at Belair, engaged in sexual intercourse with [JM] by inserting his fingers into her vagina, without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was not so consenting.
Third Count
Statement of Offence
Rape. (Ibid).
Particulars of Offence
Sebastian Edwin De Wilde on the 19th day of March 2020 at Belair, engaged in sexual intercourse with [JM] by inserting his penis into her vagina, without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was not so consenting.
Prosecution case
The accused and JM were acquaintances who ‘ran into’ each other at Rundle Street venues where the accused provided security.
The charged offending relates to the accused picking up JM on his motorbike on the evening of 19 March 2020 and taking her to a secluded location in Belair. It is alleged that the accused raped the complainant at this location before taking her back to her home address.
The day before the alleged offending during an exchange of messages on Instagram, JM told the accused that she had a boyfriend but that she also wanted to make new friends. JM and the accused exchanged messages over Snapchat to establish a meeting time and location to go for a ride on the accused’s motorcycle. The accused collected the complainant around the corner from her home address at around 10.30 pm. She sat on the back of the motorcycle, and they rode off towards Belair. The accused came to a stop in the cul-de-sac on High Street, Belair. It is alleged that the accused put his arms around JM and kissed her by putting his tongue in her mouth despite JM telling the accused she did not want to kiss him. She briefly reciprocated the kiss to placate the accused.
It is alleged the accused then pulled JM’s head towards his chest and towards his groin. JM knelt on the ground and put her hands on the accused’s thighs as a measure of resistance. The accused put his penis inside JM’s mouth and kept one hand on the back of her head. It is alleged that JM said ‘No’ on multiple occasions. (Count 1)
It is alleged that when the accused let go of JM’s head she stood up. The accused picked JM up and carried her towards his motorcycle. The accused put his hands down the front of her jeans and underneath her underwear. He is alleged to have penetrated her vagina with multiple fingers. JM attempted to push the accused’s hand away and told him she did not want to do this. (Count 2)
After a few minutes, JM managed to pull the accused’s hand away. He grabbed at the sides of her jeans and rapidly pulled them down until they were around her knees. The accused turned JM around and pushed her against the motorcycle. He removed his pants and inserted his penis into the complainant’s vagina. He had sexual intercourse with JM for a few minutes before ejaculating onto the road. (Count 3)
On the prosecution case, JM did not freely or voluntarily consent to any act of sexual intercourse. Furthermore, the accused knew that she did not consent or at the very least, was recklessly indifferent to that fact.
The following morning JM told her mother about what had occurred. Subsequent text messages between JM and her mother are said by the prosecution to amount to an elaboration of JM’s initial complaint.
There is extremely strong support for JM being a contributor to the mixed DNA profile obtained from the amylase positive area of the accused’s underwear and also extremely strong support for JM being a contributor to the mixed DNA profiles obtained from swabs of the accused’s fingernails and penile swabs.
It is the defence case that the accused does not deny he engaged in digital penetration of JM’s vagina, an act of fellatio or penile vaginal intercourse. The defence case is whether the prosecution can prove that the accused did not reasonably believe or was recklessly indifferent as to whether JM was consenting to those acts of intercourse.
Witnesses
The following prosecution witnesses gave evidence:
·JM, the complainant.
·MN, the complainant’s mother.
·Detective Brevet Sergeant Shenae Klose, investigating officer.
The accused gave evidence.
Elements of the offence
The offence of rape is comprised of three elements, each of which must be proved by the prosecution beyond reasonable doubt.
(1) The accused had sexual intercourse with JM. Sexual intercourse includes any activity consisting of or involving penetration of a person’s vagina by any part of the body of another person.
(2) The accused had sexual intercourse with JM without her consent. Consent means a free and voluntary agreement to engage in sexual activity.
(3) The accused knew that JM was not consenting or was recklessly indifferent as to the lack of consent. A person is recklessly indifferent to the fact that another person does not consent to an act, or has withdrawn consent to an act, if he or she –
(a)is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but decided to proceed regardless of that possibility; or
(b)is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the other person does not in fact consent, or has in fact withdrawn consent, to the act before deciding to proceed; or
(c)does not give any thought as to whether or not the other person is consenting to the act or has withdrawn consent to the act before deciding to proceed.
General directions
I direct myself as follows:
·The accused is presumed innocent unless or until his guilt has been proved beyond reasonable doubt.
·The burden of proving the charges lies wholly on the prosecution and the accused is not obliged to prove anything. Nothing short of proof beyond reasonable doubt will do. It is not sufficient for the prosecution to show a mere suspicion of guilt or even to demonstrate probable guilt. I must be satisfied that the prosecution has proved beyond reasonable doubt each element of the offence.
·At all times it is for the prosecution to satisfy me that JM is both an honest and reliable witness beyond reasonable doubt.
·The accused gave evidence on oath in court. He was not obliged to do so and could have remained silent in answer to the charges, leaving the prosecution to satisfy me of all elements of the charges against him. He is entitled to have his evidence assessed and evaluated in the same way as all other witnesses in the case. I am not required to be satisfied of the accused’s version of the events. The burden of proof lies with the prosecution. Part of the relevance of the version of events put forward by the accused is to consider whether it assists in casting a reasonable doubt on the prosecution case.
·If, after full and careful consideration, I am unable to decide where the truth lies or who is telling the truth, the prosecution will have fallen short of proving the case beyond reasonable doubt and my verdicts should be not guilty.
·I must assess each witness as to their truthfulness and reliability and must determine whether I can rely on the evidence of a witness. I can reject or accept all or part of a witness’s evidence.
Agreed facts
1.A forensic nurse, Tracey Markham, conducted a medical examination of [JM] on 20 March 2020 between 4.05 pm and 5.25 pm. No injuries were observed to [JM’s] genitalia.
2.The opinion of Ms Markham, who is a suitably qualified forensic nurse, is that the absence of anogenital injuries is a neutral finding which neither confirms nor refutes an allegation of non-consensual digital and/or penile penetration of the vagina, and is a poor predicator of the severity of assault.
3.During the examination, a buccal swab and vaginal swabs were obtained from [JM]. The swabs were appropriately stored prior to being submitted to the Forensic Science Centre for analysis.
4.A DNA buccal swab was obtained from the accused on 20 March 2020. The swab was submitted to the Forensic Science Centre.
5.The police conducted a forensic procedure with the accused at around 12.20 am on 21 March 2020. Swabs of the accused’s left hand fingernails and right hand fingernails along with penile swabs were submitted to the Forensic Science Centre for analysis.
6.On 20 March 2020 a crime scene investigator obtained a swab from the seat of the red Ducati motorcycle with South Australian registration S70AHY located at [address]. The swab was submitted to the Forensic Science Centre.[1]
7.On 20 March 2020 [JM] told Officer Walsh and Tracey Markham that she consumed two glasses of wine prior to meeting the accused on 19 March 2020.[2]
[1] Exhibit P10.
[2] Exhibit P11.
JM
JM is 26 years of age and works as a nurse.[3]
[3] T 9.
She said that she first met the accused in 2017 or 2018 at the Moseley Bar in Glenelg when she was with a girlfriend and spoke to the accused’s friend. She could not remember being formally introduced to the accused at that time.[4]
[4] T 9-10.
She saw the accused again at the Distill bar in around March 2020. She was outside with her boyfriend, with whom she was having an argument. The accused was working as a security guard and asked for her ID. She recognised the accused as the person who she had seen at the Moseley Bar some years prior. She walked inside and sat down, and the accused came up to her and asked her how she was. Her boyfriend came in and they finished their conversation.[5]
[5] T 10-11.
Screenshots of the Instagram messages between JM and the accused from 9 February through to 18 March 2020 were tendered.[6]
[6] Exhibit P1.
The first message at 4.54 am on 9 February 2020 was from the accused asking ‘How did you go :)’, sent following meeting the accused at Distill. This was followed by a mutual conversation about the respective plans JM and the accused had for the day.
JM said she was unsure at what point she added the accused on social media. She remembered seeing him on the social media account of JF, who was her friend from primary school as JF had gone out with the accused. She knew the accused also worked in security at the Sugar Bar in Rundle Street and at her mother’s workplace.[7]
[7] T 13
JM could not remember whether she had made the follow request, or it came to her from the accused. When asked how frequently she communicated with the accused on Instagram she said:
It would be if I was wanting to - I was aware that he was security at a couple of places and it would be if I wanted to get into a place quickly I would message or if The Fringe was on…[8]
[8] T 12.22.
She thought it was maybe months after she saw the accused at Distill that she and the accused were communicating with each other on Instagram. She said her intention in terms of communicating with the accused was to become friends and nothing more.[9]
[9] T 12.35.
The next Instagram communication was on 22 February 2020 at 11.45 pm when JM messaged the accused, ‘Hey are you working tonight?’.[10] The accused told her that he was at Mr Goodbar and heading out. JM told him it was very busy and that RCC [Royal Croquet Club] ‘is crazy’.[11] The accused told her that he thought he would be heading there when he knocked off. She asked him what time he finished and he replied 2 o’clock. JM asked the accused who he was going to the RCC with and he told her that he had a few mates there and it depended who was around when he finished up at Mr Goodbar. Later on in the conversation he said ‘I’ll let you know when I’m on the way!’.[12] JM replied ‘Woo sounds good to me!’.[13] The accused then said ‘Going straight to Sugar my mates bailed from RCC’ to which JM replied ‘Ahah okay I’ll come to Sugar for a drink then head home’.[14] She then asked ‘Is Sugar good?’.[15] The accused replied ‘Yeh it’s pumping. You going to miss lockout?’.[16] JM replied ‘Aja didn’t miss it but didn’t have cash. Have a good time’. The accused said ‘Should have told me I’ll sort ya out’. JM replied, ‘Next time then’.[17]
[10] T 123.14.
[11] T 124.1.
[12] T 126.6.
[13] T 126.8.
[14] T 126.10-22.
[15] T 126.24.
[16] T 126.27.
[17] T 126.35.
JM said that she recalled having a conversation with the accused at Mr Goodbar. He was working the front door. She was with one of her friends. The conversation went for approximately 15-20 minutes. She was unsure of the exact time but thought it was between 12.00 am and 2.00 am. She said that they were just sort of talking about what was happening at the time, what things were open. She was not interested in going into that bar at the time as she wanted a place where she could dance and the bar did not have a dance floor. It was just general conversation about a night out.[18]
[18] T 19.
JM said that as someone who was in a relationship an emoji the accused had sent her made her feel uncomfortable. She could not remember the exact emoji but that it was an ‘I’m interested in you’ type of emoji.[19]
[19] T 21.23.
There was further brief Instagram communication on 1 and 2 March 2020 where they discussed their respective work commitments.
On 7 March 2020 at 8.38 pm, JM asked the accused if he was ‘out tonight’.[20] She told the accused ‘Ill come see you later?’, to which he replied ‘Yeah sounds like a good plan’.[21] Later that evening, JM asked the accused how late he was working when he was working and whether he was going to come and see her after work, to which the accused replied, ‘Yeah I’m keen’.[22] At 3.10 am the accused asked JM ‘How you travelling’.[23] JM apologised at 5.28 am that she had to look after a friend who she was with. The accused asked whether she was at home or still out, to which JM replied she was at home.
[20] T 133.3.
[21] T 133.7-9.
[22] T 135.33; 266.37.
[23] T 135.38.
At 9.35 am the accused messaged JM asking if she wanted a visitor. She replied at 11.02 am ‘Oooo I would but I’m heading to work at 1’.[24]
[24] T 137.15-16.
In her evidence, JM said that reading the messages now, she saw what the intent was. At the time she remembered feeling uncomfortable but had not completely come to the conclusion that the accused might have wanted something inappropriate.
JM said she did not remember wanting to meet up with the accused that night being a top priority. She said ‘I remember just wanting – not even wanting, just it being up in the air and thinking if I meet this person great, if I don’t it - neither here or there’.[25]
[25] T 23.15.
When asked whether she enjoyed the attention that she was receiving from the accused she said that she would not say it was attention. She remembered that at the time she was having a lot of arguments with her boyfriend about whether she could be friends with males or not. She was trying to prove to her boyfriend that she could have a relationship with other males.[26] She said that the argument she had had with her boyfriend outside Distill was an example of one of those arguments.[27]
[26] T 23.
[27] T 24.
The accused next asked JM whether she had Snapchat and she provided her Snapchat name. She said that she felt you could have normal conversations with friends on Snapchat without being inappropriate.
On Sunday 15 March at 1.26 pm the accused sent an Instagram message to JM asking ‘Golden Features tonight?’.[28] There followed a discussion about JM having to get up at 5.00 am to go to work and that she thought it was best she stay home.
[28] T 27.13.
On Monday 16 March there was the following exchange on Instagram between JM and the accused, beginning at 11.56 pm:[29]
JM: Hey I have a question for you :) Do you know that I have a bf? I may not have been super obvious but I guess some things have shown I do, right?.
Accused: I saw your post the other day but was unsure. You were a funny chat and it’s not like we’ve done anything that would jeopardise a relationship
JM: No you’re right! I don’t want to create weirdness either just thought I’d mention it just in case. Thanks for understanding (:
Accused: Yeah it’s all good. You do you. I’ll give ya a bit of space. Just thought I’d see if you were going to RCC because that was my first time going and the last night.
JM: Yeah of course. I understand the thought behind it. Just making sure that I didn’t surprise you later on down the track haha. Looked like so much fun btw was sad to be working! I’m sure I’ll see you soon anyway.
Accused: It’s all good, you do you. Yeah it was a wicked night! We’ll have to wait and see hey.
[29] Exhibit P1.
The following day on 17 March at 7.04 pm, JM asked the accused if he was working Friday night. She said she would like to come say hi. The accused replied that he would be and would be at ‘the usual’.[30] He added ‘You all sweet?’ to which JM replied ‘At Mr Goodbar? Yeah I am (: thanks for asking’.[31]
[30] T 143.23.
[31] T 143.24.
The accused replied ‘That’s the one! Glad to hear, no worries :)’.[32] JM replied ‘Alrighty I’ll see you sometime Friday then!’, to which the accused replied, ‘Sounds good to me’.[33]
[32] T 143.25-26.
[33] T 143.27-28.
On Wednesday 18 March 2020 there was the following exchange on Instagram between JM and the accused:[34]
[34] Exhibit P1.
JM: I think it’s best for me to remove you from social media as I know it’s making people uncomfortable. I hope you understand.
Accused: That’s all sweet! Whose it making uncomfortable?! Do what you gotta do don’t want to complicate your life.
JM: Haha nah I just feel as if people are just making it more than what it actually is. Nothing major. Just thought I’d let you know.
Accused: Who?! We don’t have to talk.
JM: My bf. Yeah I know I’ll keep you on I just don’t know what to do sometimes it’s been difficult for me aha but anyways.
Accused: Social distancing
JM: Yeah aha you could call it that. Simply: I don’t want to be a shit girlfriend. However I would also like to make new friends.
Accused: Yeah given the way your relationship was when I saw you at Distill you might need to prioritise and re-evaluate.
JM: Yeah I guess that’s a fair call.
JM said that she remembered feeling throughout the time they communicated on Instagram that ‘… those little niggles inside of me that made me think that this person possibly wanted something more or something else so I made sure that this person knew exactly what my intentions were’.[35]
[35] T 27.33-28.4.
JM thought that probably throughout this time that they were speaking on Instagram that there were pictures sent between the two. There was nothing inappropriate. She said she thought she remembered taking pictures of either her food or the kitchen or her surroundings. She said that maybe she sent one photo of her face but nothing below her neck, nothing inappropriate.
JM said she sent the messages because she wanted to be very clear that it was a friendship and nothing else. She did not want the accused later to say that he did not know she had a boyfriend. She said she was very loyal to the person she was with and very happy and did not have a problem telling other people that. She was not at all open to romantic encounters with other people.[36]
[36] T 29.
JM said she could not remember why she said that she would like to come and say hi when the accused was working on a Friday night. It would have been similar to the previous messages where she had asked if he was working at a bar, if it was busy and what it was looking like.
With respect to removing the accused from her social media account, she said that she remembered that there was tension between her boyfriend and herself at the time and thinking that she should probably remove the accused, as it was making her boyfriend feel uncomfortable.[37] JM said that her boyfriend did not understand the connection between the accused and herself. She had explained to her boyfriend that this was a person who she knew through a primary school friend and had also met him a couple of years back with her friend at the Moseley Bar. Her boyfriend did not understand why she needed to keep the accused on social media or have contact with him.
[37] T 30.
JM said that on 19 March 2020 she communicated over Snapchat with the accused in relation to catching up with one another to have a coffee. The accused had mentioned it two days earlier asking to catch up but she told him she was busy and had suggested Thursday.[38]
[38] T 33.
Earlier on 19 March, she had gone out with her boyfriend. She said there was no arrangement as to where she and the accused were going for coffee but they had agreed a time of 9.30 pm. She said the purpose of meeting with the accused was to have a friendship and nothing else.
She had dinner at home with her parents between 7.30 and 8.00 pm and had one glass of white wine.[39]
[39] T 34.
She remembered telling the accused through Snapchat not to meet out the front of her house and asked him to meet at the carpark behind a nearby Woolworths. JM could not remember why she was worried about her parents knowing as she routinely went out for coffee with friends in the evening. Later in her evidence she added, that thinking back, it would have been the fact that the accused had a motorbike.[40]
[40] T 35.
She said she knew the accused would be on a motorbike because of the clothing that she was wearing. It was the first time she had ever been on a motorbike.
She met the accused in the carpark at around 10.30 pm. The accused commented that what she was wearing was appropriate to go riding. They did not discuss where they were going.[41]
[41] T 36.
JM remembered the accused handing her a helmet and showing her where to put her feet. The accused rearranged her hands to come around his stomach. She felt very uncomfortable and felt there was something wrong. She described feeling very scared that she was going to fall because there is no protection on a motorbike. With respect to holding onto the accused, she felt that she had crossed the line as someone being in a relationship. It felt inappropriate and it had not crossed her mind that she would have to hold onto him.[42]
[42] T 37.
The accused stopped the motorbike in High Street. She received an unexpected call from her boyfriend which she did not answer because the accused was by her side and said not to answer.[43]
[43] T 42.
The accused got off the motorbike and she sat there for one to two minutes. She had taken her helmet off. He told her to come to him and she walked over very hesitantly. She said she felt very scared and was not sure why they had stopped where they did. She was standing maybe half a metre away and the accused put his arms around her and pulled her closer towards his body. When asked whether she did anything in response to that, she said:
I - as it was two years ago I can't remember if I said this or I thought this - I said “I don't want to do this”. I either said it or I thought it and I can't remember.[44]
[44] T 43.13-16.
She placed her hands on his chest to give a sign that she did not want to ‘do this’.[45] She described it as a very light pressure. She recalled that the accused was trying to comfort her to make what was happening feel okay. One of his hands was on her bottom. She remembered the accused’s face moving closer towards her face and her moving slightly backwards. His tongue was in her mouth. It was forceful and felt disgusting.[46] She told him she had a boyfriend. She said she pursed her lips and knew that she did not reciprocate the kiss as she did not want it to happen at all. The accused had already put his tongue in her mouth at the time she pursed her lips. When asked how long the kiss lasted, she said that it was no longer than 10 minutes. She said it was probably, no more than five minutes and would not describe it as a mutual kiss.[47]
[45] T 43.18-19.
[46] T 44.
[47] T 44.
JM remembered the accused touching the back of her head and her head being pushed into his upper abdomen. She pulled her head backwards and then her head was pushed in again. This happened two to three times. She heard a zip and either the second or third time he had pushed her head she remembered closing her eyes and thinking that if she just did this it would be over, and she could just go home.[48] As she closed her eyes, she remembered her knees touching the floor. She did not remember the accused removing his hand from the back of her head. She remembered her hands on his legs because she wanted something to be able to remove herself from the situation. She said his penis was inside her mouth, but she did not want it there. She said she felt she wanted to be sick and remembered thinking that it was very forceful and that she might gag.[49] When asked whether she had communicated that to the accused she said she had communicated it before when they were kissing when she had told him she did not want to do it, but not at that time.[50]
[48] T 45.
[49] T 46.
[50] T 46.
JM remembered releasing herself, pushing back on the accused’s hand and his hand coming off the back of her head and trying to stand up. The accused picked her up and was holding her by her bottom and legs. She remembered saying something along the lines of ‘I can’t believe you can carry me’.[51] The accused told her she was a lightweight. The accused put her down and was standing in front of her and she was facing him. The accused put his hand down the front of her jeans and put his fingers inside her vagina changing from two to three fingers. She remembered his nail scratching her slightly because of how tight her jeans were.[52]
[51] T 47.4.
[52] T 47.
The accused tried to undo a button on her jeans and she had said ‘No, I don’t want to’.[53] When he tried to pull down her pants she remembered holding them and trying to hold them up and again telling the accused, ‘No I don’t want to’.[54] She said she thought she said ‘Please, no, I don’t want to’.[55] She remembered trying to pull her jeans up while he was still trying to take them down. She said the accused was trying to make her feel okay about what was happening. She remembered the accused turning her by her hips and facing the motorbike. He pulled her pants down very quickly and she could feel a cold breeze over her body. She was shocked that this was happening and felt frozen and isolated. She was terrified and felt she was going to fall over, so put her hands on the motorbike. Her underwear was already down towards her knees at that point. She felt his penis inside her vagina. JM said ‘I remember there being a pressure in my stomach and a stinging and very resistive and my body didn't want this in, in that place. It was, there was a lot of, it was very forceful and very rough.’[56] She said she did not say anything as she felt very scared and terrified. Her legs were like cement. She remembered thinking ‘I can’t believe what’s happening and how did this - how did it get to this point where this person is being so forceful to the point where I can't move’.[57] She put her hand behind her and pushed back on his stomach. It was medium force. She remembered thinking ‘'This will let the person know that I don't want this and I don't want to do this'.[58] The accused pulled her closer and had his hand on her chest. The accused’s penis came out and she quickly pulled her pants up. The accused ejaculated on the side of the road into the gutter. She said it felt like it was 10 minutes but it was probably between five to 10 minutes.
[53] T 48.11.
[54] T 48.13.
[55] T 48.14.
[56] T 50.26.
[57] T 51.7.
[58] T 51.23.
After a minute or so she was gathering her thoughts and asked the accused why he had ‘done that’.[59] The accused told her that he did it all the time and that he was a bad guy who rides motorbikes.[60] He was, she said, very blasé about it, saying that there was no issue with what had just happened.
[59] T 51.16.
[60] T 52.18.
JM told the accused she could not go home yet because her parents would be worried. She remembered thinking that it had been a short amount of time and not enough for them to have had coffee.[61] She remembered talking to him about her childhood friend JF, with whom the accused had been in a relationship. She remembered speaking about where they were going to go and the accused suggested McDonalds to which she said she hesitantly agreed.[62]
[61] T 52.
[62] T 55.
They got back on the motorbike and rode down to a tennis court behind a church where they stopped. She said she refused to get off the bike as she was worried it was going to happen again. JM described the accused as being very blasé about the situation, telling her he had done this multiple times and did not think this was the first time that she had done this. The accused told her ‘I owe you because I didn’t make you come’.[63]
[63] T 55.35.
JM said that she left High Street with the accused because she was very scared and did not understand what had happened. She thought about running to a nearby house but her legs would not move and she was just in shock. She did not remember thinking of calling anyone. She was very embarrassed and disgusted with herself as to why she had said no so many times and it did not work for her.[64] She said the accused showed no emotion or thinking that he was doing something wrong. She remembered the accused speaking about her being in a relationship and making fun of the fact that she was because of what had just happened. She told the accused she wanted to go home and the accused dropped her at the start of a street adjacent to her home. She told him ‘Please look after JF’ and he said ‘Will do’.[65] She got off the bike and handed him the helmet and walked off.
[64] T 56.
[65] T 58.2.
Her father was in the kitchen watching TV and as she walked past he said hello. She did not remember saying hello back. She knew her mother was home but only saw her father in the kitchen.
The following morning she woke up at about 8.30-9.00 am. She told her mother ‘I’ve done a very bad thing’ or ‘Something really bad has happened’.[66] Her mother asked her what she meant. JM said ‘I was with someone last night’.[67] Her mother again asked her what she meant to which JM replied ‘I was with the security guy’.[68] JM said she was very close to her mother, who was her best friend. She said her mother knew who she was speaking about.[69]
[66] T 58.37.
[67] T 59.4.
[68] T 59.7.
[69] T 59.13.
She could not remember the exchange of messages she had with her mother later in the day. She remembered attending Yarrow Place and then later at the police station with her father.
JM said that she removed the accused from her social media account between her talking to the police and giving evidence. There was no further contact with the accused after having been dropped off the night before.
In cross-examination, JM agreed that when she was with her boyfriend earlier on 19 March, the plan to meet the accused had already been made. She said ‘I don’t remember it being a plan because it wasn’t a top priority. I wasn’t thinking “Oh how exciting, I'm going to see this boy after I'm with my boyfriend”’.[70] She had not told her boyfriend about the plan. JM said that she had a plan in her head to tell her boyfriend and show him that she could be friends with the accused. Her boyfriend had insecurities that caused him to become jealous and he had questioned her specifically about the accused.
[70] T 66.36.
When asked why JM wanted a friendship with the accused, she said that it was because she could not understand why females cannot have male friends. When asked why she needed to demonstrate a male friendship with the accused she said she had seen the accused going out with JF and it seemed a safe enough person to have a friendship with. She agreed that JF lives in New York, and that she had not seen her in years but was friends with her on social media.[71]
[71] T 75.17.
JM denied that as at March 2020, she had been having thoughts about breaking up with her boyfriend.[72] She remembered that when she had been with her boyfriend on 19 March, thinking she was very happy with him.[73]
[72] T 77.
[73] T 78.
JM recalled that when she had met the accused at the Moseley, she and her friend went to the accused’s friend’s house with that friend and the accused.[74] In JM’s first statement to police on 21 March she said that she never found out the name of the accused that night and did not speak to him herself. In her statement on 19 May 2022, she said that she now remembered that she knew his name at the time but could not recall how.[75] When asked why she only recently knew the accused’s name she said that she was very focussed when she gave her statement on the most important part. She denied that she had been trying to distance herself from knowing the accused. She agreed it was clear to her that police wanted to know how she knew the accused.
[74] T 81.
[75] T 83.
JM agreed that the accused is distinctive in his appearance in that he is very tall, which is partly how he would be recognised around town.[76]
[76] T 92.
JM agreed that she connected with the accused on Instagram a matter of hours after leaving Distill nightclub with her boyfriend.[77] She denied that her in her quick response to the accused’s question ‘How did you go?’ that she was enthusiastic about speaking or communicating with him. She said she did not remember exactly what she felt, but that she had not ‘ghosted’ the accused’s message.[78]
[77] T 102.
[78] T 105.
JM said that on the evening that she first met the accused at the Moseley, she and her friend went to the accused’s friend’s house with the accused and she had sex with the accused’s friend.[79]
[79] I allowed an application by defence counsel pursuant to s 34L(2)(a) of the Evidence Act 1929 SA, to ask questions of JM regarding previous sexual activity as substantially probative to the issue of the accused’s reasonable belief as to consent.
JM said her interest in contacting the accused on Instagram and Snapchat was simply knowing whether the bars or nightclubs were busy or not and because she was interested in being friends with a male person to show her boyfriend she could have platonic male friends. She did not find the accused physically attractive. She did not find anything about his demeanour attractive.[80]
[80] T 119.
When the accused approached and spoke with her at Distill after her argument with her boyfriend, she saw it as someone being polite and just a normal thing for someone who had seen an argument unfold. She said she was not particularly impressed.[81]
[81] T 120.
JM said she did not remember inviting the accused to connect with her on social media two hours after seeing him at Distill. It was not because she was attracted to him and did not remember feeling that she was interested in communicating with him again after that night.[82]
[82] T 121.
As to the messages between herself and the accused on 22 February, JM denied ‘feeling’ that when she saw the accused at Mr Goodbar, she had gone there to see him. She had, she said, remembered wanting to try Mr Goodbar for a while and wanting to see how it was. She denied she had been looking for him and did remember feeling that way.[83] She said that if you know a security guard, they are more likely to let you in before everyone else. She said she could not think of a reason why she would want to speak to the accused outside of his work context. When asked why she had asked the accused ‘Are you going to come see me after work?’, JM said she was with her friends and remembered thinking it would be fun if they had a group and it would be fun if other people came.[84]
[83] T 129.
[84] T 134.
As to the messages regarding letting the accused know she had a boyfriend, she described the conversations between herself and the accused on Instagram as a light-hearted thing. She was not messaging the accused to gain attention and did not remember enjoying the attention that he gave her.[85]
[85] T 144.
She understood that the offer the accused made to come to her home was an implication that she would have sex with him. She said it seemed very forward but understood that ‘do you want a visitor’ was an invitation for sex. She agreed she had not told her boyfriend about the message.[86]
[86] T 146.
When JM was asked whether she went ahead with the motorcycle riding plan because she wanted to spend time with the accused, she said she did not remember that being her feeling.[87] She remembered wanting to go out for a coffee or dessert and did not know that the accused was interested in her as a fact. JM said that with respect to the message asking whether she wanted a visitor, it had not crossed her mind that the accused was interested in her sexually.[88] She thought he just wanted to have a platonic friendship because he had confirmed he understood she had a boyfriend.[89]
[87] T 157.
[88] T 158.
[89] T 159.
JM told the nurse at Yarrow Place that she had two glasses of wine. She could not remember the quantity now.[90] When asked whether her statement to the nurse the day after the event was more likely to be accurate than her evidence, JM said ‘I don’t want to answer yes. Can I say that it was from one to two glasses.’[91] Ultimately JM agreed that because it was closer to when the events happened, two glasses of wine would be more accurate. She denied that she had thought it might be helpful as far as breaking the ice to have a few drinks before she went out with the accused.[92]
[90] T 160.
[91] T 161.4.
[92] T 162.
JM said she did not remember that when she saw a call come in from her boyfriend on High Street she had said ‘Why is he calling, I haven’t done anything wrong yet’ and that she did not care one way or the other if her boyfriend found out about her being there with the accused.[93] She had told police that she did not want the accused speaking over her and remembered thinking that she was concerned her boyfriend would hear the accused’s voice and that the timing of telling her boyfriend was up to her.[94]
[93] T 175.17.
[94] T 178.
JM agreed that the accused started walking down the trail where she joined him. She agreed she told police that she had kissed the accused back because she thought he would stop after he got a kiss, and she could go home. She said she remembered she had said something along the lines of ‘Don’t you dare kiss me’ and then the accused leaned in to kiss her. She denied kissing him back using her tongue.[95] She denied trying to undo the accused’s belt which had rings similar to the motorcycle helmet and denied there was a joke where the accused said that had she watched the way he put on her helmet she would know how to unbuckle the belt.[96]
[95] T 187.
[96] T 188.
She had told police that his penis was in her mouth for about one-and-a-half minutes. When asked if she was a more accurate historian of events at the time of her first police interview, she said she would like to ‘stick to the five minutes’.[97] She agreed that her legs were not dangling when the accused picked her up and said that wrapping her legs around him was an automatic response.[98] She had told police that the accused had put two fingers in her vagina for about two minutes, and now recalled a conversation about whether she would ‘normally have’ two or three fingers.[99] She remembered the accused in that moment trying to make like it was okay, to make her feel comfortable asking basically what she preferred. She said she did not respond to the accused’s question because she was saying no and asking the accused to stop. She had not told anyone about the accused scratching her before she gave evidence.[100]
[97] T 189.
[98] T 194.
[99] T 196.
[100] T 198.
JM agreed that she left the house some time after 10.00 pm. She walked to the shopping centre on Unley Road and chatted with the accused in the carpark, receiving instructions about how to ride as a passenger on a motorcycle and wear a helmet. The ride to High Street took about 15 to 20 minutes.[101] They were there for about 30 or 40 minutes. They then rode back down to the carpark on Park Street, Unley and that trip was also 15 to 20 minutes. They stayed in the carpark chatting for about 15 or so minutes. She then rode home with the accused which took about two minutes.[102]
[101] T 206.
[102] T 207.
JM accepted that she may not have said ‘No, I don’t want to do this’ to the accused when he put his penis into her vagina.[103] She said she felt his hair on his stomach and pushed, not at full force but the accused knew that was not what she wanted. She agreed that it was from that action that the accused would have known she was not consenting to have sex with him and from the two times that she had said no before. That is, when he tried to pull down her pants and she lifted them up, and then he pulled them down again, and when he tried to kiss her and she did not want to kiss him back.[104] She said the reason why she was pressing against his stomach was because she wanted to communicate to him that she did not want him to penetrate her. She used only moderate force because she was frozen and very frightened.[105]
[103] T 208.20.
[104] T 208.
[105] T 209.
JM agreed that the accused had not threatened her in any way and was not intoxicated. She was leaning over his bike but denied holding her body in such a way that ensured the bike would remain upright.[106] When asked if she had thought to push the bike over, which would have stopped things, she said that would be damaging someone’s property and it would not have been nice for her to do that and would have upset the accused. She did not remember the accused asking her whether she was on the pill before he withdrew his penis.[107]
[106] T 211.
[107] T 212.
JM agreed that she went and sat down on the kerb and brought up a conversation about JF. She agreed she had said something like ‘Don’t you feel bad because I have a boyfriend?’.[108] The accused said that the fact she had a boyfriend was not his issue. He told her he just thought that she was there to have a good time.
[108] T 214.13.
JM agreed that the conversation about JF was the first time she had brought up JF’s name with the accused. The accused asked her how well she knew JF and agreed that she began to ask the accused a lot of question about his relationship with JF while the accused was sitting next to her on the kerb.[109]
[109] T 214.
JM said that when she was being raped, she thought about running to the nearby house that had a light on but thought the person that came out might be just as horrible as the accused.[110] When the accused got to the carpark, he said something to her about her not having had an orgasm. She said:
I remember him saying - well he said that he owes me because I didn't orgasm. I don't remember at that point him sticking his fingers again in my pants, I don't remember that.[111]
[110] T 219.
[111] T 220.18.
She said she did not remember the accused having a conversation with her about her boyfriend, telling her that if her boyfriend really was ‘the one’ the accused did not think that that night was going to get in the way of that, because love was stronger than one night of casual sex.[112]
[112] T 220.35.
It was suggested to JM that there was a discussion about relationships and infidelity. JM said she remembered asking the accused if he had ever cheated on JF. There was, she said, a conversation about why he had done this and she was trying to figure out if this had happened before, and trying to understand why he felt so comfortable in doing what he had done in such a blasé way. She agreed that she kept intentionally needling the accused about JF. She said she was trying to understand him.[113]
[113] T 222.
JM said that she thought she was going out with the accused for coffee or dessert, but to her it was not a date and because the accused understood she had a boyfriend she thought he did not have a sexual interest in her.[114]
[114] T 226.
JM agreed that the plans for 19 March were in place at the time of the Instagram conversation with the accused about her boyfriend when the accused told her she might need to prioritise and re-evaluate her relationship.[115]
[115] T 227.
Evidence of MN
JM’s mother, MN, said she works at a business in the city.
She recalled having dinner with JM and her husband on the evening of Thursday 19 March 2020 around 7.30 or 8.00 pm. JM would not have had more than one glass of wine, because she never finishes her white wine and does not like it. After dinner JM told her she was going out for dessert with a girl from work. She saw JM about an hour later. JM did not look at her or say hello but went straight to her bedroom, which MN thought very unusual.[116]
[116] T 231.
The following morning JM told her she did not go out with someone from work, but rather with ‘that security guy’.[117] MN thought that JM had told her that one of her friends was going out with him. JM said she had been really scared and that she had said ‘no’ but that he didn't stop and was very forceful.’[118] MN said her daughter sounded very upset and distraught. MN alerted her husband about what JM had told her and corresponded with JM via text later in the day. In those messages JM told her that she felt disgusting and that it was her fault. JM said that the accused was physically grabbing her hands and pushing, and she kept pushing back. There was a point where she got scared because it was too forceful.[119]
[117] T 232.29.
[118] T 233.19.
[119] T 236.
In cross-examination MN said she recalled how many glasses of wine JM drank on that night and that most of the time, JM will refuse wine as she does not like white wine.[120]
[120] T 238.
MN agreed that JM had talked to her and her husband about breaking up with her boyfriend.[121]
[121] T 241.
Detective Brevet Sergeant Shenae Klose
DBS Klose is the investigating officer. In cross-examination she agreed that the accused had provided her with his pin code in order for her to access his mobile phone.[122]
[122] T 246.
The accused
The accused said he was 24 years old in March 2020.[123]
[123] T 251.
Between 2018 and 2020 he worked for security companies which provided security for clubs and pubs.[124] He agreed he had sexual intercourse with JM on 19 March 2020.[125] He first met her at the Moseley Bar at Glenelg in 2015 when he was 19 when he was there with friends. They went back to his friend’s house, had a drink and then paired off and went into two separate bedrooms. He paired off with JM’s friend and JM went into a bedroom with his friend. JM and her friend then left roughly 45 minutes later.[126]
[124] T 253.
[125] T 254.
[126] T 257.
On 9 February 2020 he was working on the door at Distill and JM and her boyfriend approached to come inside at about 2.30 am. They were arguing. JM went inside and her boyfriend walked out and sat across the road in front of a restaurant. The accused said he did not recognise JM. He went up to her and asked whether she was okay and she said she was fine. He offered her a glass of water. She left with her boyfriend in a cab.[127]
[127] T 259.
JM sent him a friend request on Instagram in the early hours of that morning, approximately two hours after she had left. He said he was a bit shocked when he received a friend request because he had not given her any details of who he was. He had checked her ID and that was it.[128]
[128] T 261.
He next saw JM at Mr Goodbar on 7 March. Between 9 February and 7 March they communicated via Instagram. JM’s contact on 22 February at 11.45 pm asking if he was working that night, was, he thought JM making an effort to see him or to organise a catch up. When she said that she would come to Sugar for a drink after he told her he was not going to RCC, he thought she might be interested in him in that she had changed her plans to come and see him. The fact that she responded promptly to any message he sent made him think that she was interested and was making an effort.[129]
[129] T 263.
On 7 March at around 10.30 pm, JM came to Mr Goodbar with her friend. She gave him a hug. JM and her friend were very inebriated. He told them he could not let them in because they were too drunk. JM asked if she could use the toilet and went upstairs. Her friend asked whether he was going to go upstairs and have sex with JM in the toilet. The accused said he just laughed it off and said he was at work. JM came back downstairs and they said they were going to RCC. He gave her a hug and she left.[130]
[130] T 266.
The accused said that judging by JM’s request to catch up and her behaviour when he saw her at Mr Goodbar, he thought she was interested in him. Her reply of ‘Ooh I would but I’m heading to work at 1’ sounded to him like she was interested but obviously had to commit to work.[131] The accused said that from then he and JM communicated via Snapchat predominantly.
[131] T 268.8.
On 12 March when JM asked ‘Is Sugar busy?’ and he told her he had the night off, her reply of ‘AWW’ sounded to him like disappointment.[132]
[132] T 269.
The accused said he had seen JM arrive at Distill with her boyfriend and was quite aware that she had a partner. He did not believe it to be a stable relationship and he thought she was looking to him as an escape route. He had seen her at Distill arguing with her partner and then she had been out regularly since, but not with her boyfriend.[133]
[133] T 272.
When JM messaged on 18 March, his intention was to give her some space. He was not really in the mood for stress or hassles.[134] The plan to meet on 19 March 2020 came about when he put a photo of his motorbike on Snapchat. JM replied to his Snapchat story and sounded interested in the bike.[135] She sounded interested in his offer to take her for a ride. He asked her if she was free on Tuesday night and she said she was unavailable. She mentioned Thursday night and he told her that he had things on earlier in the night and it would have to be around 9.00 pm and that she should wear a leather jacket and boots. When she agreed to go out on the bike ride with him he believed that she was interested in him. There was no plan to do anything other than riding the bike up in the hills.[136]
[134] T 274.
[135] T 276.
[136] T 277.
JM contacted him the day before they met. He thought it was a cancellation on her part. The messages that went between them made him think that JM was unsure about what she wanted to do regarding her partner.[137] When she turned up, he assumed she was interested and seemed excited to see him as she gave him a hug. He told her they were going for a ride up the hill to Belair and he helped put her helmet on, commenting on the suitability of her clothes. He gave her instructions about how to ride a bike and then they rode to High Street, Belair.[138]
[137] T 278.
[138] T 279.
When they arrived they both hopped off the bike and JM received a call on her phone. JM said ‘Why is he calling? I haven’t done anything wrong yet.’[139] The accused thought she was referring to her boyfriend. He told her that she did not have to answer the phone if she did not want to. He said JM seemed frustrated that her boyfriend had called her and sat down on the kerb, scrolling through Instagram or Facebook. He started walking down the trail because she needed some space to do what she wanted to do. He walked about 15 metres. It was very dark. He pulled out his phone and went to turn it on and saw it was on 1% so turned around and saw JM walking over towards him. He asked if she was okay and she gave him a hug. They hugged each other. She leant back and then he looked at her and she said ‘Don’t you dare kiss me’[140] with a cheeky grin. He leant in and kissed JM and she started to kiss him back passionately. His hands were on her back when she started kissing him and he put his hand on her bottom. He said they were kissing for a little bit and then he undid her buckle and slid his hand into her pants. He started rubbing her and asked her how many fingers she wanted. JM told him two or three. He put two fingers inside of her and then tried to undo his belt buckle. He told JM that if she had been paying attention when he undid her helmet, she would understand how to do the belt buckle. He undid the belt and she went down and started sucking on his penis. She then hopped back up and he went to go slide her pants down and she said ‘Not here’.[141] He said ‘Okay no worries’ and he picked her up. He walked over to the motorbike and put her down next to the motorbike and then they kissed a little bit more and he started fingering her again. He turned her around and she put her hands on the bike and then they had sex.
[139] T 283.9.
[140] T 284.27.
[141] T 285.15.
The accused said he did not feel any resistance from her when she was sucking his penis. One of his hands was holding his pants up so they wouldn’t fall down, and the other was resting on her head. The way that she had kissed him back made him think that she was willing to engage in sexual activity with him. JM did not give any indication that she was not interested or did not want to continue with what was going on. He did not make her put his penis in her mouth. She went down and grabbed on and started performing oral sex. He carried JM around the waist. She had her hands on his shoulders and legs wrapped around behind his back. He picked her up because it seemed like a fun thing to do at the time and she was leaning up to kiss him, and for him to lean down and kiss someone can be a little demanding on his back. [142] She asked him how he could carry her and he told her that she weighed ‘bugger all’.[143] He said JM seemed impressed and pleased with the fact that he was carrying her. He put her down next to the bike and they started kissing again and then she turned around and put her hands on the bike. He slid her pants down and then he put his penis inside of her. Her hands were on the motorcycle and his hands were on her back.
[142] T 286.
[143] T 286.15.
The accused said that JM did not say no or stop to him at any time.[144] She did not say anything that made him think that she did not want to participate in sexual activity with him. He asked her if she was on the pill and she said no, so he pulled out and ejaculated on the road. After he ejaculated, they each fixed themselves up and started to chat.
[144] T 287.
JM asked him about JF almost instantly. JM sat down on the kerb. The accused gave evidence that JF was an ex-girlfriend with whom he was in a relationship between 2017 and 2018. The relationship ended when she moved to New York. He was unsure how JM and JF knew each other and shut the conversation about JF down pretty quickly.[145]
[145] T 288.
JM told him she could not go home yet because she had told her parents she would be out for dessert. They had a discussion about what would be open and if she wanted dessert.[146] He thought they would just go for a ride, and they rode down the hill stopping behind a church, where JM asked more questions about JF, and asked the accused whether he felt bad. When he asked what for, JM said because she had a boyfriend. He told her that her boyfriend was not really his issue. JM asked him whether he ever cheated on JF and he said he had no need to. JM continued to bring up JF for about five or 10 minutes.[147] He said the topic of JF was a pretty touchy subject for him. He loved her deeply and missed her and he was shocked at the fact that this was her childhood best friend who he had never heard of before. He denied he told JM something along the lines of him being a bad guy and doing it all the time with women.[148] He said JM had made a bit of a joke about the fact that she had not had an orgasm. He said he laughed it off and felt a little embarrassed.[149]
[146] T 289.
[147] T 290.
[148] T 291.
[149] T 292.
JM was making comparisons between her relationship and his relationship with JF. He thought that she was looking for some advice on her relationship and told her that judging by how the night went, this was not the first time that she had done this. She said she hooked up with a guy once and he said ‘And then…’ in a joking manner, which he explained was a line was from the movie Dude Where’s My Car.[150] He said ‘And then’ to JM because he believed that when she said she hooked up with a guy once, it was her downplaying it and not actually owning her decision. The accused said he told JM that having sex one night was not going to change things and that if you love a person, you make it work regardless. From there he was a bit put off because he felt bad that JM knew JF so closely.[151]
[150] T 293.8.
[151] T 294.
As soon as he got off the bike at the carpark he turned around and tried to kiss her because she had made a joke about her not coming earlier. He went over to her and kissed her for a little bit and then undid her buckle and proceeded to slide a finger inside her vagina. This went on for about 10 minutes. He said:
And then honestly I got a little bit bored with the situation, I didn't think that it was going to eventuate into her actually coming or coming to orgasm, so I thought I'd leave it and then just continued chatting.
They chatted for about 15 or 20 minutes but it ‘felt like about 45 when it got to the [JF] sort of stuff’.[152] He then said:[153]
I made a comment about her choosing if she wanted to be in a relationship and if that was the right choice for her and that it was purely up to her if she wanted to be in a relationship. It's not - and she had to make the call. And she was sitting there just pondering the thought about her relationship and I was just looking at her for a little bit and I thought 'Well, it's probably best if we get you home and you can have a think about it', because she was obviously questioning her decisions.
[152] T 295.22.
[153] T 295.26-35.
He again helped her with her helmet, started up the motorbike and dropped her home.
The accused said he had believed that JM was consenting. She had kissed him back and embraced him in a hug. She also confirmed how many fingers she would like inside of her. She actively put his penis inside of her mouth and seemed to be enjoying herself along the way. There was nothing in her physical response to those activities which made him think that she was not consenting.[154]
[154] T 296.
The accused said that at some point he realised that JM was the same woman that had gone home with him and his friend from the Moseley Bar years before. After she had visited him at Mr Goodbar, he messaged his friend, who told him that JM was the person he went home with the night they took JM and her friend home many years prior. He thought from that that she might still have been interested in such a ‘set-up'.
In cross-examination the accused said that he felt he treated JM reasonably and with respect and dignity.[155]
[155] T 299.
The accused agreed that his interactions with JM on the evening that they met at the Moseley did not change anything, but he believed that she might have been interested in having casual sex, because she had had casual sex with his friend a few years prior.[156] He said that he believed that JM was interested in him and that was why she had sex with him.
[156] T 302.
The accused denied that this was a random sexual encounter. He said that JM chased him to come and see him and asked regularly about where he was and if he wanted to catch up.[157] He said that while hugs do not necessarily mean someone is romantically interested in another person, the intent behind the hug and the intensity of the hug can infer different things.[158]
[157] T 303.
[158] T 304.
The accused was certain that he did not recognise her from the few years prior. He agreed that he was attracted to JM when he saw her at Distill.[159]
[159] T 305.
The accused denied that he made the connection at Distill from the Moseley Bar and was ‘straight off the bat’ fishing for a potential sexual encounter.[160]
[160] T 306.
The accused accepted that when JM followed up with ‘Next time then’ she was possibly being polite to him as a friend. He agreed that there was nothing in the exchange that elevated it from a couple of friends or acquaintances potentially becoming friends to a romantic interest by either party.[161]
[161] T 308.
The accused agreed that by asking if JM would like a visitor, he was offering to come over for casual sex.[162] He agreed that there was no indication that she would like to see him when she was not working for the purposes of a casual hook up. He said that by her not dismissing it and adding ‘Next time’, implied that she was interested. He accepted that when he invited JM onto Snapchat he was trying to feel out where this might lead.[163]
[162] T 310.
[163] T 312.
The accused said JM’s intent at Mr Goodbar did give off a vibe that she was interested in him. The passion behind the hug when she came and hugged him was a firm, tight hug.[164]
[164] T 312.
The accused said JM was regularly asking when and where he was and did not seem to be with her partner. When he first met her and her partner, they were together and had an argument, and now she was going out without him. He thought that would imply that maybe something happened there.[165]
[165] T 313.
The accused said that from her messages, it sounded to him like JM wanted to continue messaging despite the fact she had a boyfriend. It was no surprise to him that she had a partner. He was not sure what JM wanted and had not really made it clear. She just stated the facts and that was that she had a boyfriend.[166]
[166] T 319.
JM’s message that she would also like to make new friends did not remove any ambiguity about what was on the cards that night. The messages left sex as a possibility. The message that she had a boyfriend and did not want to be a ‘shit girlfriend’ was cleared up with what came next, namely that maybe she needed to re-evaluate and prioritise.[167] He admitted that he was hopeful that he would have sex with JM that night and had thought about it. He thought she was interested in him.[168] He said it felt a little bit like a date and that JM was not his issue.[169]
[167] T 321.
[168] T 322.
[169] T 322-323.
The accused denied that he knew JM did not want to have sex with him when they went to High Street. He thought the ride to Belair was a nice drive up to the hills. There is a nice view there and he did not invite JM to his room as it was a ‘pigsty’ at the time.[170]
[170] T 326.
The accused denied there was no further fingering while she was sitting down on the motorbike. He said it was not something he made up to make the whole night seem above board, adding ‘Why would I want to put myself more into strife?’.[171]
[171] T 336.22.
Counsel addresses
Mr Macura submitted that JM presented as an articulate and forthright witness who described the alleged offending in a logical and internally consistent manner and that there was nothing implausible about the sexual acts being non‑consensual as she described.
If it was accepted that JM communicated to the accused that she did not want to engage in any form of sexual intercourse with the accused, there could not be a reasonable possibility that the accused believed the complainant was consenting to the sexual acts.
It was inconceivable, Mr Macura submitted, that JM would willingly have sexual intercourse on an unknown street with a casual acquaintance whom she described not finding attractive.
JM was subjected to extensive and robust cross-examination which did not reveal any glaring lies or inconsistencies and her previous encounter with the accused’s friend two or more years prior to the alleged offending had no meaningful bearing on the accused’s state of mind at the relevant time.
The messages JM sent to the accused made it clear she had a boyfriend and she had suggested removing the accused from social media. JM told the accused she wanted to make new friends. They agreed to meet for a motorbike ride and on JM’s account, agreed to go for coffee or dessert. There was the missed call from JM’s boyfriend at High Street as well as the statements and physical gestures JM made, indicating she did not consent. All those factors meant that any link between the Moseley encounter, about which JM was entirely frank, two or more years later was extremely tenuous.
The messages exchanged on 1 and 2 March revealed nothing untoward or suggestive and simply demonstrated that both JM and the accused had a mutual interest in the Adelaide night life in the context of The Fringe season that year.
With respect to meeting at Mr Goodbar on 7 March, Mr Macura submitted that even if JM was reticent to admit she intended to see the accused as part of the reason for attending there, that did not mean she was pursuing a romantic interest in the accused. He was a convenient acquaintance or friend to have because of his position as security staff at nightclubs.
Mr Macura described as fanciful any suggestion that this encounter was a turning point for thinking that JM was interested in him sexually. JM was already on a night out with her friend drinking, so she did not go out of her way to see the accused at Mr Goodbar. It was not disputed that there was nothing about the conversation between them outside the bar to indicate that the complainant had a romantic interest in the accused or was after a casual hook up.
The accused was, Mr Macura submitted, being disingenuous when he said JM’s hug or the comment from JM’s girlfriend indicated that JM was interested in him. There was nothing in JM’s messages to say she was disappointed about not being able to see the accused.
It was the accused who invited himself to JM’s house later that morning and contrary to some other exchanges JM did not respond immediately, but rather, 90 minutes later. Her reply could not be taken as conveying she was sexually interested in the accused. The response was in Mr Macura’s submission, politely dismissive.
In Mr Macura’s submission, the overall tone of the messages showed no sexual interest on JM’s part. The messages were no more than general chitchat which included occasions when they were both out and, potentially, making plans to meet up.
Mr Macura argued that any suggestion JM regretted having a consensual sexual encounter with the accused, did not stand up to scrutiny and that it would be absurd to think JM would put herself through the trial to protect her image.
Potential inconsistencies regarding JM’s evidence were of peripheral relevance and only went to JM’s reliability.
As to whether the accused’s kiss was reciprocated, JM was adamant that she did not kiss the accused back because she did not want to kiss him. JM explained that at the time of the first statement to police she did not understand the level of detail that was required and did not know how else to describe her actions.
Mr Macura submitted that the accused was evasive in his answers on this topic and was not consistent with someone who was genuinely attempting to tell the truth. His arrogance was consistent with being callous towards JM on 19 March.
Mr Macura submitted that when viewed in its proper context, the fact that JM rode back towards town, sits comfortably with the offending taking place in that she did not want to alarm her parents and wanted to tell her boyfriend on her own terms. That JM initially confronted the accused by asking him 'Why did you do that?' and the accused trivialising the incident, Mr Macura submitted, had a particular ring of truth about it. The suggestion that the accused again digitally penetrated JM was a nonsensical self-serving statement to try and make the entire evening seem consensual.
The circumstances and content of the initial complaint to MN demonstrated a significant degree of consistency in JM’s conduct. She complained at a time proximate to the incident, when you would expect her to complain, and to a person whom she trusted.
The accused's brazen behaviour upon arriving at High Street and telling the complainant not to worry about answering the phone call and calling her over to him at the trail head demonstrates that the offending was calculated.
The reason the accused did not contemplate or invite JM to his home was because he knew she was not interested in him sexually and would have declined such an invitation.
Mr Macura submitted that upon a careful analysis of the evidence about the material facts in issue, I could find that the accused knew JM was not consenting or was recklessly indifferent about that fact at the time of the sexual acts occurring and therefore in a position to return a verdict of guilty with respect to each of the charges.
Mrs Powell submitted that the issue to be determined was whether the prosecution had excluded, as a reasonable possibility, that the accused did not know or was recklessly indifferent as to whether JM consented.
The accused had explained why he reasonably believed that JM had demonstrated a sexual interest and why she consented to intercourse with him. Namely, she befriended him on Instagram, having sought him out; the nature and the frequency of the communication between them on Instagram and Snapchat; his belief that she seemed to have a disharmonious relationship with her boyfriend at the time; the fact that she agreed to meet with and go on a motorbike ride with him, a meeting that he believed was a date; the fact that he knew she had on a past occasion had a casual sexual liaison with a person she had just met; the fact that she agreed to, and did, meet up with him some time after 10 pm to go on a bike ride and her physical responses to his overtures.
JM rejected that she was interested in the accused as anything other than a friend with limited utility. She believed she conveyed her intentions very clearly to the accused when she told him she needed to delete him from social media. No matter what she wants to believe, Mrs Powell submitted, JM was the instigator and she was interested in him.
JM knew that the accused’s interest in her included a sexual interest and he made that declaration very obvious in his message when he asked if she wanted a visitor in the early morning hours. She accepted an offer to go out with him on what, on anyone's view, appeared to be a date.
When they arrived at High Street, JM’s phone rang. It was her boyfriend who she had not told she was out with the accused. The accused’s response to JA’s comment about 'I haven't done anything wrong yet' was to walk away to give her space. Even on JM’s evidence, he walked away to the trail head. There was nothing stopping JM from answering the phone. There had been no behaviour on the part of the accused that could have made her fearful of answering the phone from her boyfriend. Even if he did say not to answer, why would she not just do what she wanted?
While JM maintained that she was frightened throughout, if that were the case, there was no sign of that. The motorbike could not be used as a sexual prop without cooperation from both as it required balance to ensure that not too much weight was placed against it or else it would tip over. In that sense the physical act of intercourse required the cooperation of both parties. Mrs Powell described JM’s answers to why she did not just let the bike fall, or go to a nearby house, as absurd.
As to the ultimate issue of the accused’s knowledge, despite being frozen in terror, JM sat down as soon as the sexual intercourse ended and started discussing whether to go for dessert, preferring it would seem, to remain in the company of the man who had sexually assaulted her, rather than face the fleeting awkwardness of coming home a little bit earlier than expected.
There was something said about JM not having achieved an orgasm and Mrs Powell submitted the accused, quite frankly and candidly, said in his evidence that he then digitally penetrated JM again for a few minutes but gave up. JM said in evidence that she did not remember this happening, as opposed to denying outright and with some force if it had not.
Mrs Powell submitted that the accused did not evade or hide behind being unable to remember, not remembering feeling that way or feeling that that would not have happened and that unlike JM, his answers were direct and illustrative of someone who had nothing to hide.
Mrs Powell suggested that some of the small details of the accused’s evidence were telling. He gave evidence of their conversations and had a detailed recollection of the conversation they had in the carpark and described things unravelling at the end of the evening, when talking about relationships and infidelity.
These, Mrs Powell submitted, were the topics on JM’s mind when she walked into her house that night.
The accused accepted that this was a casual sexual encounter with no strings attached. The accused’s responses were plausible and suggested he was being truthful when he said he believed JM was interested in him and went out with him on that evening because of that interest. He believed that JM had a fractious relationship with her boyfriend that, as far as he knew, may not have been on foot at that point and that when they got to the top of the hill she responded to his overtures. Mrs Powell suggested that it was the final conversation that they had in the carpark that really brought home to JM that it was a regretted sexual encounter which does not amount to coerced sexual intercourse after the fact. Mrs Powell submitted that there was insufficient evidence of JM’s resistance having been communicated to the accused, and the accused was entitled to think that JM was consenting to the activity. He had turned his mind to whether she was consenting and acted on that reasonable belief.
Analysis
There is no dispute that the accused and JM had sexual intercourse on 19 March 2020.
To find an accused guilty of the offence of rape, the prosecution must prove beyond reasonable doubt that a complainant either did not consent to the sexual intercourse or withdrew consent. Consent involves free and voluntary agreement to participate in sexual activity. The prosecution must also prove that the accused knew or was recklessly indifferent to the complainant’s absence of consent. An accused is recklessly indifferent if aware of the possibility that the other person might not be consenting or has withdrawn consent, but decides to proceed regardless; or is aware of the possibility that the other person might not be consenting or has withdrawn consent, but fails to take reasonable steps to ascertain whether the other person does in fact consent, or has in fact withdrawn consent, before deciding to proceed; or does not give any thought as to whether or not the other person is consenting, or has withdrawn consent before deciding to proceed.
Although I have found that JM was doing her best to give truthful and accurate evidence, it was apparent that she was simply incapable of responding to questions in a straightforward way that demonstrated she was convinced of the accuracy of her memories. JM readily resorted to being unable to remember, not remembering feeling ‘that way’ or feeling that something ‘would not’ have happened. While I accept recollecting events perceived as traumatic can be very difficult and there is no ‘right’ way for a victim of sexual abuse to behave or respond, my overall impression of JM’s evidence was that she was reconstructing events to fit with how she wished they had occurred, that is, that she had been an unwilling participant.
I was troubled by JM’s inability to describe in any real detail how the meeting between herself and the accused on 19 March was to take place, what she had expected was to happen, or even why she agreed to the meeting, particularly given her apparent ambivalence towards him. While she ultimately conceded that she must have known that she was to ride on the accused’s motorcycle because she was wearing the appropriate attire, she appeared to remain unconvinced that had been the case, and unable to reconcile her decision to meet with the accused as she had.
That JM did not consider the meeting a ‘date’, was difficult to accept against the background of what had been communicated between them. JM appeared determined to portray herself as someone who held no genuine interest, either sexual or otherwise, in the accused. It was in my view more likely that JM had first initiated social media contact with the accused and her explanations as to why she maintained contact with him via social media, despite this being a source of tension between herself and her boyfriend, lacked conviction. While her evidence that she had not found the accused attractive in any sense may have resulted from her experiences with him on 19 March, her evidence did not sit with the tone and content of the social media communications between herself and the accused, nor with her apparent eagerness on occasion to respond to his messages. Clearly, the accused was more to her than a convenient friend to have in order to check out or gain quick access to a particular venue. Again, my impression of JM’s evidence on this topic appeared to reflect her inability to reconcile her own behaviour. I accept that there was nothing in his last exchange with JM on 18 March that would necessarily exclude the chance of a romantic relationship with JM. That JM then went ahead with the proposed meeting on 19 March, would no doubt, have given the accused some support in his belief that she was interested in him and potentially as more than friends.
The key issue in dispute in this matter is whether the accused knew that JM did not consent to the sexual acts or was recklessly indifferent as to whether she was consenting to the sexual acts that make up the three charges. What had gone on between the accused and JM before 19 March 2020, does not of course equate to JM having consented to the charged sexual acts and she is not to be regarded as having consented merely if I were to find that she did not say or do anything to indicate that she did not freely and voluntarily agree to the sexual activity, nor protest or physically resist the sexual activity.
The concerns I have regarding JM’s evidence have necessarily impacted on my assessment of JM’s evidence regarding what she said were the responses and signs she gave to the accused. I find that I cannot be satisfied that JM gave any physical or verbal sign to the accused that she was not a willing participant in the sexual activity, despite her apparent wish that there had been. There was significance in my view, in the inconsistency between what JM told police about the kiss and her evidence, and I am not satisfied that the accused forced JM to kiss him as the prosecution has submitted.
While mere submission of itself is not consent, it is relevant to whether JM consented and relevant to whether the accused knew she did not consent or was recklessly indifferent. In applying the test of reckless indifference, I must take into account the circumstances of the event and the accused’s knowledge of those circumstances.
JM’s complaint to her mother was timely and mostly consistent with her evidence. I have however, found it difficult to reconcile JM’s evidence that she did not want to return home too early so as not to concern her parents, with her allegations that what occurred on High Street was without her consent. As Mrs Powell submitted, it is difficult to accept that JM would prefer, despite her closeness with her mother, to remain in the company of the man who had sexually assaulted her, rather than face the fleeting awkwardness of coming home a little bit earlier than expected.
In some circumstances it might be considered the accused’s somewhat brazen behaviour in taking someone it could not be said he knew well, to a secluded location with a hope they would engage in sexual activity on the back of a motorbike, was committed without giving any thought to whether JM was consenting or proceeded regardless. In this case, given my concerns as regards JM’s credibility and reliability, I have been unable to exclude the accused’s evidence as to how it was that JM responded to him after she joined him at the head of the trail such that he reasonably believed she was consenting to each of the sexual acts that were performed.
The accused gave his evidence in a straightforward manner and did not seek to portray himself more favourably as someone who wanted more than a casual sexual encounter with JM. His evidence regarding how the events unfolded were coherent and plausible. The prosecution has not excluded the defence case as a reasonable possibility on any of the charges.
I find the accused not guilty of all charges.
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