R v Deng
[2008] SADC 7
•11 February 2008
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DENG
Criminal Trial by Judge Alone
[2008] SADC 7
Reasons for the Verdict of His Honour Judge Muecke
11 February 2008
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Two counts of rape - two alternative counts of unlawful sexual intercourse - complainant 16 years old at time of alleged offences - not guilty of rape - guilty of two counts of unlawful sexual intercourse.
Criminal Law Consolidation Act (1935) ss 48, 49(3), referred to.
R v DENG
[2008] SADC 7Trial by Judge Alone
Judge Muecke
Introduction
The accused was charged on Information dated 5 March 2007 with two counts of rape and two counts of unlawful sexual intercourse. He pleaded not guilty to all four counts and elected to be tried by a judge without a jury.
The Charges
At his trial the accused was charged as follows:
First Count
Statement of Offence
Rape. (Section 48 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Julius Peter Deng on the 27th day of August 2006 at Naracoorte, had sexual intercourse with CKG, without her consent, by inserting a finger into her vagina.
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Julius Peter Deng on the 27th day of August 2006 at Naracoorte, had sexual intercourse with CKG, a person of the age of 16 years, by inserting a finger into her vagina.
Third Court
Statement of Offence
Rape. (Section 48 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Julius Peter Deng on the 27th day of August 2006 at Naracoorte, had vaginal sexual intercourse with CKG, without her consent.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Julius Peter Deng on the 27th day of August 2006 at Naracoorte, had vaginal sexual intercourse with CKG, a person of the age of 16 years.
The accused’s offending as charged is alleged to have occurred on 27 August 2006. All four counts alleged an offence against CKG. The accused was born on 1 January 1976 and he was, accordingly, 29 years of age as at 27 August 2006. CKG was born on 14 March 1990 and she was, accordingly, 16 years of age as at 27 August 2006. The accused was approximately 14 years older than CKG at the time of the alleged offences. The accused was nearly twice her age.
The alleged offences
By the first count it is alleged that the accused raped CKG by having sexual intercourse with her, without her consent, by inserting a finger into her vagina. By the third count it is alleged that the accused raped CKG by having vaginal sexual intercourse with her, without her consent.
The second and fourth counts are charged as alternatives to the first and third counts respectively. By the second count it is alleged that the accused had unlawful sexual intercourse with CKG, a person of the age of 16 years, by inserting a finger into her vagina. By the fourth count it is alleged that the accused had unlawful sexual intercourse with CKG, a person of the age of 16 years, by having vaginal sexual intercourse with her.
The Crown’s case at trial was that in the late afternoon of 27 August 2006 at a house at Naracoorte where CKG was living with a friend SKM, the accused took CKG to a bedroom in the house. There he kissed her, pulled down her track pants and underpants and placed a finger into her vagina. He then put his penis into her vagina. The Crown’s case was that each of those two alleged acts of sexual intercourse constituted a rape by the accused of CKG. Alternatively, they each constituted unlawful sexual intercourse by the accused with CKG.
Section 48 of the Criminal Law Consolidation Act, 1935 provides that a person who has sexual intercourse with another person without the consent of that other person, knowing that that other person does not consent to sexual intercourse with him or being recklessly indifferent as to whether that other person consents to sexual intercourse with him shall (whether or not physical resistance is offered by that other person) be guilty of rape.
The law has an expanded definition of “sexual intercourse”. In every day meaning “sexual intercourse” means the penetration by the penis of the female’s labia majora or the lips or the folds of skin outside, but adjacent to, the entrance to the female vaginal canal. That is the sense in which sexual intercourse is alleged in counts three and four on the Information against the accused.
The law’s expanded definition of “sexual intercourse” includes activity consisting of or involving the penetration of the female’s labia majora, or the lips or folds of skin outside, but adjacent to the entrance to the female vaginal canal, by any part of the body of another person.
Here the Crown alleges in counts one and two that the unlawful sexual intercourse the accused had with CKG was the penetration of her labia majora by his finger.
To establish either of the two charges of rape against the accused the prosecution must prove beyond reasonable doubt three elements or ingredients which together make up the offence of rape.
The first element or ingredient of counts one and three is different because the first element relates to the type of sexual intercourse alleged.
The second and third elements or ingredients are the same for each of the two counts of rape.
The first element or ingredient of the first count that the Crown must prove beyond reasonable doubt is that the accused intentionally penetrated CKG, at least at far as penetrating her labia majora, with his finger. The Crown’s case is that the accused intentionally penetrated CKG’s vagina with his finger. The accused denied that there was any penetration of her vagina with his finger.
The first element or ingredient of the third count that the Crown must prove is that the accused intentionally penetrated CKG, at least as far as penetrating her labia majora, with his penis. The Crown’s case is that the accused intentionally penetrated CKG’s vagina with his penis. The accused denied that there was any penetration of her vagina with his penis.
The second element of each of the two counts of rape alleged against the accused is that CKG did not consent to either act of sexual intercourse. Consent may be indicated by words or conduct or both. In considering the second element in respect of each of the two counts of rape, I need to concentrate on the state of mind of CKG immediately before the act of sexual intercourse having regard to all the relevant circumstances. Consent is the free, willing and voluntary participation in an act of sexual intercourse with a particular man at a particular time and place. The question of whether CKG consented to either act of sexual intercourse that I find proved beyond reasonable doubt is a question of fact for me to decide. I must decide that question beyond reasonable doubt.
The third element of each of the two counts of rape alleged against the accused is that the accused knew that CKG was not consenting to the act of sexual intercourse, or was recklessly indifferent as to whether she was consenting. The accused would be recklessly indifferent if, knowing that CKG might not be consenting, he proceeded to have sexual intercourse with her irrespective of whether or not she was consenting.
In this case the Crown says that the second and third elements have been proved beyond reasonable doubt for each of the two counts of rape. The accused’s evidence was that neither act of sexual intercourse occurred so that the second and third elements of rape do not arise.
I am not required to be satisfied of the accused’s version in this case. The burden of proof lies elsewhere, and part of the relevance of the evidence of the accused is to consider whether it assists in casting a reasonable doubt on the evidence of the prosecution. Such a doubt may arise because of that, or for any reason or reasons. I must consider whether that is the case in the present matter. Even if I do not believe the accused on crucial issues, that does not mean that I must find him guilty of the two counts of rape charged. I still have to be satisfied that the Crown has proved each element of either of the charges beyond reasonable doubt. What I have just set out applies in the same way to the two alternative counts charged, those of unlawful sexual intercourse.
Section 49 (3) of the Criminal Law Consolidation Act, 1935 provides that a person who has sexual intercourse with any person under the age of 17 years is guilty of an offence. That is the offence of Unlawful Sexual Intercourse alleged against the accused in the second and fourth counts on the Information against the accused.
As already indicated the second and fourth counts on the Information are alternative charges to the first and third counts respectively. The second and fourth counts will only arise for my consideration if I find the accused not guilty of either of the first and third counts.
There are two elements or ingredients to each of the second and fourth counts. The Crown must prove each element beyond reasonable doubt.
First, it must prove that the accused had sexual intercourse with CKG.
Secondly, it must prove that at the time that that occurred CKG was under the age of 17 years.
The law’s expanded definition of sexual intercourse applies equally and in the same way to the second and fourth counts as it does in respect of the first and third counts. I have already referred to the fact that if the accused inserted his finger into CKG’s vagina, that act would constitute sexual intercourse. The insertion by the accused of his penis into CKG’s vagina would also constitute sexual intercourse.
If I am satisfied beyond reasonable doubt in respect of the second or the fourth counts that the accused inserted his finger into CKG’s vagina or that he inserted his penis into her vagina, I may be satisfied that the first element of the offence of unlawful sexual intercourse has been proved in respect of either of those counts.
Consent on CKG’s part to either or both of the alleged acts of the accused is irrelevant to a charge of unlawful sexual intercourse. It does not matter whether she consented or not. The first element of each charge of unlawful sexual intercourse will be proved if I am satisfied beyond reasonable doubt that the accused intentionally had sexual intercourse with CKG as she described.
As to the second element of each count of unlawful sexual intercourse, if I am satisfied that either of the acts the subject of the relevant two charges occurred, and I am also satisfied beyond reasonable doubt that they occurred on the day alleged in each of the particulars, then I will be satisfied, because of her date of birth, that each occurred when CKG was under the age of 17 years.
The law provides that it shall be a defence to a charge of unlawful sexual intercourse to prove that the person with whom the accused is alleged to have had sexual intercourse was, on the date on which the offences are alleged to have been committed, of or above the age of 16 years, and the accused believed on reasonable grounds that the person with whom he is alleged to have had sexual intercourse was of or above the age of 17 years. On 27 August 2006 CKG was 16 years old. The onus to establish the accused had a belief on reasonable grounds that CKG was of or above the age of 17 years is on the accused. He must establish that on the balance of probabilities. He must establish that it is more probable than not that he believed on reasonable grounds that CKG was of or above the age of 17 years on 27 August 2006 when he and CKG were in the bedroom at SKM’s house at Naracoorte.
Where an accused is charged with more than one count it does not follow simply because I may be satisfied of his guilt of one offence that he is also guilty of another charge. The charges do not stand or fall together. The accused is entitled, as is the Crown, to a separate consideration by me of each of the crimes charged.
If separate charges are tried together on the one Information, as in this case, I must take special care to see that the method by which the guilt of the accused may be established on any one count is by only considering the evidence as it refers to each count separately. All of the evidence I heard is relevant to each separate count, but I must consider it separately when I am considering my verdict on each of the separate counts.
When I am considering whether or not I am satisfied beyond reasonable doubt that the accused is guilty of the first or second counts, I may use the evidence of the act said to constitute the third or fourth counts but only in a special and limited way.
Usually in a criminal trial evidence of other alleged crimes do not come before a judge sitting alone hearing the trial. In this case, however, I heard evidence of two charged crimes because it is potentially helpful to me in evaluating the evidence of CKG. Hearing the whole of the allegations she made may better enable me to assess her evidence. The whole of the alleged course of events provides a context around which it is said that a particular charged incident occurred. There is a sense in which the more evidence I have of the interaction between CKG and the accused, the better opportunity I have to evaluate CKG’s evidence and to determine to what extent, if any, I am prepared to rely on it. In that way it can be said that the whole sequence of events throws light on the nature of the relationship between CKG and the accused and the events that are said to have occurred in the bedroom at SKM’s house at Naracoorte.
When I am considering the first or second counts I may consider the evidence as to the third or fourth counts in determining what, if any, weight I am prepared to place on the evidence of CKG. Evidence of the other charged acts is available to me as material which may assist me in concluding whether I think that CKG’s evidence is reliable as to the first or second counts, being the counts I am then considering. Alternatively, it may assist the defence in showing inconsistency or unreliability or inherent improbability in CKG’s evidence, and, therefore, may raise doubt about the charge I am then considering.
If, in these reasons for verdict I refer to matters being “proved” or if I use the words “satisfied” or “established” relating to the proof of matters in issue I mean “proof beyond reasonable doubt”.
The first issue in this case in respect of all counts is whether I am satisfied beyond reasonable doubt that either of the two acts of sexual intercourse described by CKG, and alleged to be the two acts particularized in the four counts, occurred as described by her.
Insofar as counts one and three are concerned, the next issue is whether I am satisfied beyond reasonable doubt that CKG did not consent to either of the acts of sexual intercourse I might be satisfied occurred.
Lastly, as to counts one and three, the issue is whether I am satisfied beyond reasonable doubt that the accused knew that CKG was not consenting, or was recklessly indifferent as to whether she was consenting.
Insofar as counts two and four are concerned, if I am satisfied that either act of sexual intercourse occurred, the issue is whether the accused has established on the balance of probabilities that he believed on reasonable grounds that CKG was of or above the age of 17 years on 27 August 2006 when he and CKG were in the bedroom at SKM’s house at Naracoorte.
The Crown case
The evidence of CKG
CKG was born on 14 March 1990. She was 16 years old as at 27 August 2006 and 17 years old when she gave evidence before me.
As at August 2006 CKG lived in Naracoorte with her “best mate”. That person was SKM. She was 15 years old as at August 2006. CKG lived in a house with SKM and SKM’s father. She had lived there for about a month as at August 2006. She said that she shared one of the three bedrooms at the house with her friend. Her friend slept on a double mattress on the floor while she slept on a single mattress that was also on the floor.
CKG said that in August 2006 she met a man by the name of Julius. That was the accused. That was at a casual meeting whilst CKG was with another friend of hers. She introduced herself to the accused and he introduced himself to her. The meeting lasted about five minutes.
Some days later was Sunday 27 August 2006. CKG was at Woolworths in a shopping complex in Naracoorte. She said that at around 3 o’clock she was sitting in the plaza with SKM and another friend. She saw the accused walk through the main doors of the complex. They greeted each other and she asked him whether she could have a cigarette. The accused replied that he didn’t have any but that he could go and get her some. He did that. When he returned and gave her cigarettes she gave him a hug to thank him.
CKG said that there was then a conversation about how old people were. She said the accused raised that topic and he asked SKM and CKG how old they were. SKM told him that she was fifteen, and CKG told him that she was 16 years old. CKG said that the accused told her that he was 29 years old.
CKG said that the accused then suggested that they should go back to SKM’s house. SKM said that they could not go there unless a male friend of hers, AC was with them. In response the accused said that they could go to the motel where he lived, pick him up and then go to SKM’s house. They were then driven to the motel.
CKG said that when they arrived the accused unlocked the room used by AC. They found that he was not in the room. CKG said that the accused drove off briefly with the person who was the driver of the car, but he returned about five minutes later. CKG said that AC arrived at the room shortly after she had had a cigarette outside. When AC returned CKG gave him a hug because she hadn’t seen him for a little while. When she did that the accused asked her whether he got a hug as well. CKG said that she had said that he could have one and she gave him a hug. She said that her friend SKM also gave the accused a hug. They all then had a can of beer. It was a larger can than normal and it had “Amsterdam” written on it. CKG said that after she had finished her beer she was feeling tipsy.
CKG said that she then went outside to have another cigarette. When she had finished it she was standing in the doorway of the motel room. She said that at that time the accused came up to her and put his arms around her waist. He told her to go back into the room and she did. He guided her back into the room with his arms around her waist. She didn’t like that. She tried to push him away. When they were both back in the room the accused kissed her on the right side of her neck for a few seconds. She then managed to push him away. After that she told her friend SKM that she wanted to go home.
CKG said that they all went outside to get into the car. They were driven to her friend’s house, arriving there at roughly 4 o’clock, quarter past four. When they went inside SKM’s father was in the kitchen. He was introduced to the accused by AC. AC, the accused, SKM and CKG then went to the computer room, which was between SKM’s father’s bedroom and the bedroom shared by CKG and SKM.
Once in the computer room SKM sat at a desk where the computer was. She started playing music off the computer. AC sat at the head of the bed in the room, adjacent to a television connected to a PlayStation. CKG was sitting on the bed to AC’s left, and the accused was sitting on the bed to CKG’s left. In this position the accused’s right arm and right leg were touching her left arm and left leg. She said that made her feel really uncomfortable. She tried to move over towards AC but was not able to because he would not move over. She said the accused touched the outside of her left leg with his hand. He stopped when she told him to stop. He then leaned over and kissed her on the lips. That was only for a second. She pushed him away. She then sat there and watched AC play PlayStation and she smoked a cigarette. After a while the accused got up and walked over and spoke quietly to SKM. She could not hear what was said. Not long after the accused came back to her, grabbed her by her right hand and pulled her to a standing position. She said that she wanted to stand up because her legs were sore and she also wanted a drink. The accused said for her to go with him. He started pulling her out of the door of the room. She tried to grab hold of SKM but she couldn’t. She grabbed hold of the doorframe, but the accused took her into the bedroom which she used with SKM. She felt like she was being dragged. Once inside that room the accused let go of her, he shut the door and she went and sat on the bed. By that time it was just after 5pm.
CKG said that she was sitting on the mattress with her legs crossed. The accused sat down by her legs facing towards her. He leant in and kissed her on her lips. She moved her head from side to side to get away from him, but was not able to do so. She said the accused kissed her for probably about a minute, or a minute and a half. He was trying to stick his tongue into her mouth. She was trying to move away from him so he would stop. He did stop when she told him to stop.
CKG said that the accused then grabbed her ankles and pulled her towards him. She was then lying down with her elbows behind her just to push her up. The accused was at her ankles. He grabbed her by the waist and tried to pull her pants down. He was trying to pull her track pants and her underwear down. She tried to prevent him from doing so by holding on to her pants. She told him that she “didn’t want to do it”. The accused told her that it “was going to be all right”. She said that her track pants got pulled to her knees, or just below her knees, and her underwear got pulled down to just below her buttocks. That was because she held on to her underwear harder than she did her track pants.
CKG said that once her underwear and track pants were down the accused put his finger inside her vagina. She didn’t know what hand he used to do that as she had her eyes shut because she didn’t want to see what he was doing. When the accused put his finger in her vagina it hurt. She felt he had sharp nails. When it started to really hurt she told him to stop. After his finger was inside her vagina for about a minute he stopped and removed it. He did that a little while after she told him to stop.
CKG said that at that point she tried to pull up her pants, but was unable to do so. Her eyes were still closed. The accused touched her right breast underneath her bra. It hurt because he was squeezing it too hard. CKG said that after that the accused “put his dick up my vagina”. She said it hurt and it was really hard. She said he touched the outside of her vagina first and then put his penis in. She told him to stop. She said she didn’t want him to do it. He kept telling her it was going to be all right. He said that maybe five or six times. It hurt because he was pushing too hard. She told him it hurt, but he told her that it was going to be all right. She said that when the accused wouldn’t listen to her she started crying. That was when he just kept going. He did that for about five minutes or so. She had tried to push him away, but was unable to. She said the accused eventually stopped. He did not ejaculate.
CKG said that once the accused stopped she pulled up her pants and sat in the corner. The accused came and sat by her knee and told her to stop crying. She got up because she wanted to go back to the other room. When she got up she lit herself a cigarette. When the accused said that he would like one too she threw a cigarette at him, got up and left. She had been in the bedroom with the accused for about half an hour.
CKG said that when she returned to the computer room AC had to leave to go back to his motel room. He was going away somewhere. She was standing in the doorway when AC wanted to leave. She was doing that because she didn’t want SKM or AC to see her crying. AC gave SKM and herself a hug and he left. The accused approached her to give her a hug because he had to leave too and she told him to get away from her. She did not give him a hug. After that the accused left.
CKG said that after they had left she spoke to her friend SKM about what had just happened. SKM had asked her why she was crying. CKG told her friend that the accused had taken her to the room and that she had kept telling him “No”, and that he wouldn’t listen to her. SKM asked “Did he rape you?”. She did not answer. She just looked down to the ground. She was still crying. SKM then left the house to approach the accused and AC who were close by on the Memorial Oval. CKG went to visit another of her friends who lived nearby. She was there for about ten minutes when SKM came and got her. She went home with SKM and, following a discussion with SKM’s father about what had happened, the police were called. They attended at the house later, and later still that evening a police officer took CKG to the Mt Gambier Hospital where she was examined by a doctor.
CKG said that she made a statement to police in which she recounted what she said had happened that afternoon and that evening. The statement was given about three o’clock the next day, Monday 28 August. CKG signed the statement some time afterwards. She signed it because it was accurate.
When cross-examined CKG agreed that she had told police that when the accused was having sex with her “he kept saying over and over again that it would be okay, and as I lay there I started to cry because it was hurting me and I didn’t want him to do it any more”. CKG denied that she told police that because she had been agreeing to the accused having intercourse with her but changed her mind because it was hurting her.
It was put to CKG that when they were at the motel the accused never put his arms around her waist and kissed her on the right side of her neck. It was put to CKG that when they were in the computer room at the Muirhead’s house she and the accused lay backwards on the bed, she had put one of her legs over one of his legs and she had kissed him on the cheek. CKG denied that happened. It was put to her that the accused did not kiss her on the lips in the computer room.
It was put to CKG that when they were in the bedroom together later the accused touched her breasts both outside and under her clothing and he touched her vaginal area both outside and under her clothing. It was put to her that the accused started to take her underpants off and at that stage she had said “No”, she didn’t want to have sex. The accused then said “it will be all right”. When he said that she had again said “No” and he had stopped. It was put to her that after she had said “No” twice she had a cigarette, the accused put his head on her legs, she lit a cigarette for him and he smoked it. It was put to her that the accused had never penetrated her vagina with his finger or his penis. CKG said that he had.
CKG denied the suggestion that she had made up the allegations of rape as she thought they might cause her to get some sympathy from her mother. CKG said that she had been “kicked out” of her home but said that was because she didn’t get on with her step-father. She preferred to be with her mother than be living with the SKM and her father. When asked in cross-examination: “did this help re-establish some contact with your mother?”, CKG replied “No”.
SKM gave evidence that when the group was outside Woolworths earlier in the day that these allegations arose she thought the accused might have said that he was 29 years old. She later said that she thought CKG might have asked the accused how old he was. She could not recall whether or not any mention was made of the ages of either of the two girls, CKG or herself. She said that she was sure the accused mentioned his age.
SKM said that when the four of them were in the computer room the accused asked her if he could go to the other room with CKG. When he asked that CKG was behind him and the accused had hold of her hand. She did not think that the accused had first asked her whether she (SKM) and AC would leave the room.
SKM said that after the accused and AC had left the house later, she spoke to CKG in the computer room when she started crying. When she asked why she was crying, CKG told SKM that she had tried to grab her (SKM) but the accused had pulled her out the door before the two of them had gone into the other room. CKG told her that the accused had asked her in the other room if she wanted sex and she had said “No”. Then “he laid her down anyway and climbed on top but she tried to push him off and he wouldn’t get off of her, and she kept saying No. SKM was asked if CKG had said anything to her about whether they had had sex. SKM replied “Yes”. When asked what CKG had said, SKM said she did “not remember exactly what she said to that part”. When asked: “Can you remember what the effect of the words were?”, SKM replied: “I don’t remember”. She said she did not remember whether there was anything else that CKG said to her on that topic.
SKM said that she sent a text message to AC and left the house to catch up with AC and the accused. She said that CKG ran after her, saying not to go, but she said she had to talk to AC. She followed the accused and AC onto a nearby oval where she spoke to AC about what CKG had told her. That was about 4 or 5 metres away from the accused. She said that later, when the accused came back to her house for his phone that he had left there, she and CKG were in the computer room and CKG appeared scared when the accused came to the computer room.
When cross-examined SKM said that she had no memory of talking to the accused about her age or CKG’s age outside Woolworths earlier in the day. She said she was not sure whether there was any conversation about that although she said she was sure the accused mentioned his age. She said that she thought GS, a male friend of the girls, was present for whatever conversation there was between she, CKG and the accused.
SKM said that at the motel CKG had more than one large can of beer but she could not remember whether she finished off the accused’s can or had another can. She said that after that CKG was tipsy, giggly, and a little bit flirty with the accused. She described “flirty” as meaning “just laughter and I think she might have hugged him once or twice, I’m not sure”.
SKM said that when the four of them were in the computer room at her home AC, CKG and the accused where sitting on the bed. She agreed that the accused had laid back across the bed with his feet still on the ground. She thought CKG had laid back next to him. She agreed that the two of them were chatting, giggling and laughing. She agreed that she wasn’t playing close attention because she was concentrating on the music on the computer.
SKM agreed that she had sent an SMS message to a AC after the two males had left the house and after CKG had started crying in the computer room. She agreed that the message was something about “He’s interfered with her” or “He’s done something”. She said she thought she might have said something to AC in the accused’s presence. She said that the accused denied doing anything wrong. She though she said “Did you, like, rape C?”, and he said: “No”.
SKM said that later the accused turned up at his house looking for his mobile phone. He asked to speak to her outside. She did so. She agreed that the accused said to her that “he wanted sex with C but didn’t want to force it”. He said that he didn’t do it and he offered that all of them go to the police straight away. She had asked him not to go to the police because her father didn’t know at that stage and CKG didn’t want him to know at that stage. The accused left his phone number with her (SKM) and asked her to call him later. She then went back inside the house and convinced CKG to tell her father. At first she didn’t want to do it but then she did.
JAS gave evidence that he is 15 years old. He was at the plaza where Woolworths was on the day of the incident. He said that CKG asked a person for a cigarette and the person said that he would go and buy a packet for her. He had not seen that person before. He was not introduced to that male. JAS then said that when there was a discussion about cigarettes between CKG and the male, he and SKM were less than 5 metres away from them. He said he could not hear their conversation.
JAS said that the other person gave a packet of cigarettes to CKG. He thought she offered him some money but he was not sure. He thought she gave him a hug but he was not sure about that. He said that he was not able to hear all of the conversation that took place between the male and CKG. He did not hear any discussion or conversation by anyone on the topic of people’s ages. He said he believed the other person was Sudanese. That was because of his appearance.
AC gave evidence that he is 19 years old. He lived in Naracoorte for about four weeks in the middle of 2006.
AC gave evidence about when CKG, SKM and the accused were in his room at the hotel after being in the area of Woolworths. He said that at the time they left there CKG was “a little bit tipsy”.
AC said that he was sitting at the head of the bed in the computer room at SKM’s residence that evening playing PlayStation. He thought that CKG sat on the bed next to him, in the middle of the three of them, the accused being at the other end of the bed. SKM was sitting on the chair at the computer. He said that at one point he saw one of the accused’s hands “down around (CKG’s) genital area”. He didn’t think anything of it and kept playing PlayStation.
AC described the accused and CKG leaving the room later. The accused had a hold of CKG’s hand. He said that CKG didn’t appear that happy when the accused was leading her from the room.
Later, when the accused and CKG returned to the door of the computer room, CKG “didn’t seem really happy … she seemed a bit upset”. He thought that from “just the look on her face”. Her hair was “a bit messed up”. He said that pretty much straight away he and the accused left the house.
AC said that SKM spoke to him later outside as he and the accused were walking back to the motel. He thought that happened after the accused had gone back to the house to get his phone. He agreed that SKM said something about some things that she had been told by CKG. He said that the accused “sort of denied it”. He said SKM then left them. He didn’t really know what to do so he just kept walking back to the motel with the accused.
When cross-examined AC agreed that he remembered that CKG had asked the accused if she could finish off the rest of his beer. That was at the room at the motel earlier in the day. He agreed that he remembered that the accused had his arm around CKG at some point in the motel. She wasn’t complaining. She was giggling and chatting with the accused. She seemed happy there. He agreed that she was perhaps a little bit flirty because she was a bit tipsy. It was an agreed fact that AC had said to a solicitor shortly after the incident that at the motel room there was a time at which the accused and CKG both had their arms around each other.
AC agreed that at one point when they were in the computer room at SKM’s house the accused lay back across the bed on which the three of them were sitting. He agreed that CKG did the same thing next to the accused. He agreed that at some point the two of them had their arms around each other. He then said that CKG did not have her arm around the accused, or he didn’t think she did. He said that he did not remember telling a solicitor that whilst he was playing PlayStation the accused and CKG both had their arms around each other. He said that his memory would have been better last year than it is this year.
AC was asked whether there was a time on the bed in the computer room that the accused and CKG had their legs close together, touching. He agreed that there was. He was asked “Did C at one point have one leg over Julius – or partly over Julius’ leg that was next to her”. AC replied: “Yes, sort of because they were like, they were pretty close together”.
AC was asked about CKG’s demeanour when she later came back into the computer room. He said that “She didn’t look as happy as she was earlier …”.
AC was questioned about the text message he received from SKM after he and the accused had left the house. He thought she might have said “Can you come back here?” He said there may have been more to the message than that, but he didn’t remember because he didn’t still have the message on his phone. He said that he was pretty sure he did say something to the accused when he got the message, but he didn’t remember what he said or what was in the message. It was put to him that CKG had “essentially made an accusation in Julius’ presence that he has misbehaved sexually with” her. He agreed that that was so, and that the accused had denied it.
Dr Lucie Walter gave evidence that she had examined CKG at the Mt Gambier Hospital at about 10.50pm on Sunday 27 August 2006. She examined her externally. She performed a genital examination both externally and internally. Dr Walters’ evidence was to the effect that nothing she saw, or didn’t see, said anything, one way or another, about whether or not CKG had been sexually assaulted.
Dr Walter said that a number of swabs, scrapings and combings were taken from CKG.
Ms Louise Harkin is a reporting officer within the biology section of the South Australian Forensic Science Centre. She gave some evidence regarding DNA analysis. She said that mixed DNA profiles can be obtained from samples. Such a profile contains a mixture, indicating that more than one individual contributed to that sample. It is sometimes possible to identify a major contributor or contributors to such profiles, and a minor contributor or contributors to such profiles.
Ms Harkin gave evidence of a DNA profile obtained from a swab that had been obtained from the right hand fingertips of the accused. That was a mixed DNA profile. There were at least two contributors to that profile and those two contributors contributed unequally to it. The major component matches the reference DNA profile of CKG. In respect of the minor component, the accused could not be excluded as a possible contributor. She calculated a likelihood ratio with respect to the major component of the sample. She said that the major component of it is approximately 814 million times more likely to match the DNA profile of CKG at the loci interpreted if she is the major source of the DNA rather than an unknown, unrelated female.
Ms Harkin agreed that it was possible that if the accused and CKG had held hands there could be transfer of cellular material onto the accused’s hands especially if she was sweating. She also agreed that there is a possibility that if the epithelial cells which line in the vagina came in contact with the accused’s hands and remained on the surface of his hands that could account for a transference of DNA. She said it was difficult to express any opinion as to the likelihood of transference of one of those scenarios. All she could say is that the DNA was quite strong, so she imagined that there would be quite a lot of cellular material.
Ms Harkin said that a sample said to have come from the left hand fingertips of the accused was analysed. Again there was a mixed profile. There were at least two individuals who had contributed to the recovered DNA. The major component of that profile matches the DNA profile of the accused. CKG could not be excluded as a possible source of the minor component. She said the minor component was a much weaker result than had been obtained for the right hand fingertips of the accused.
Ms Harkin said that some tracksuit pants said to have come from the accused were analysed. A tape lift was taken from those tracksuit pants. Exhibit P3A is a photograph of the inside front of the tracksuit pants showing an area where the tape lift was taken. A DNA profile was obtained from the tape lift. Again it was a mixed profile. There were at least three contributors. A major and minor component could be identified. She said that the mixed major component matched the combined DNA profiles of the accused and CKG. Assuming that the accused was one of those contributors, Ms Harkin attached a likelihood ratio to the other major component contributor as matching the DNA profile of CKG. She said that the likelihood ratio of the second major contributor of the DNA profile is greater than one billion times more likely to match the DNA profile of CKG if she is the second major source of the recovered DNA rather than an unknown, unrelated female. She said that there was insufficient information to reach any conclusion as to the minor component of the DNA.
Ms Harkin said that one possible way in which DNA could be transferred from CKG to the accused and then to the inside front of his tracksuit pants was if the accused and CKG had had sexual intercourse and the accused had then worn the tracksuit pants after that. She said that if epithelial cells which line the vagina were put onto the accused’s penis and he put his trousers back on that is a possible way of transferring her DNA to his tracksuit pants. She said that another possibility was if the tracksuit pants came into direct contact with CKG. Ms Harkin said, however, that CKG would need to have come into contact with the inner surface of the tracksuit pants and, in her opinion, because the profile was quite strong, CKG would have had to have rubbed against the surface to dislodge sufficient cellular material.
Under cross-examination Ms Harkin agreed that there was a possibility that if the accused had come into contact over a period of say, five to ten minutes, with CKG’s vaginal and breast area there could be a transfer from her body to his hand. She also agreed that it is a possibility that if he put his own pants on and tucked himself in afterwards, handled his own penis to go to the toilet, he could transfer her DNA from his hand to his penis. She agreed that is one possibility.
In a statement that was tendered at trial Constable Natasha Parsons stated that she attended at the house of SKM and her father at about 7.00pm on Sunday 27 August 2006. She was accompanied by another police officer. After entering the house she saw CKG sitting at a table in the kitchen. She appeared visibly upset, her face was red and she appeared that she had been crying. Constable Parsons introduced herself to CKG. When she asked her if she could tell her what happened CKG began to cry and told her that she had been raped.
Constable Parsons spoke privately with CKG who told her that she had been raped at about 5.30pm on that day by a man that she knew as Julius.
At about 9.30pm that day Constable Parsons went with CKG to the Mount Gambier Hospital and after a medical examination there Constable Parsons took some of CKG’s clothing.
Finally, I refer to a record of interview that was conducted with the accused by Senior Constable Osborn at about 11.30pm on Sunday 27 August 2006. the interview was conducted with an interpreter who was interpreting0 via a loudspeaker telephone link. Some of the record of interview was transcribed as best it could be, and the transcription is Exhibit P5A. Some parts of the interview could not be transcribed and there may be some aspect of the interview which may not be correctly transcribed. That is through no fault of the police who tried to effect an accurate transcription. The interpreter does not appear to have translated questions and answers in the way that they were asked or answered. Many answers are recorded with the introduction words of “He said” or “He says”. That may partly be due to the fact that the police officer asked some questions by asking the interpreter “Can you ask him …” or “Does he know …” or “Did he ask her to have sex with him?”. I mention these matters because I consider that because of them I must approach the transcript of the record of interview with caution.
The transcript of the record of interview records that the accused denied putting his finger inside CKG’s vagina. The transcript records “My finger was where the hair in that area of body, not inside her”. I am not sure that the words “of body” are accurately transcribed. It may be that the word “only” is heard on the audio/video in lieu of the words “of body”. The transcript later refers to the accused saying that CKG “let my finger be the area where the hair but no go inside her”. The next answer purports to be an answer to a question as to whether CKG wanted him to do that. The first part of the answer cannot be deciphered but the last part is “ … otherwise she never go with me to the other bedroom”. The next question elicits a reference to the accused using “my finger … hair in the area with the hair. My hand, just my hand”. The accused appears to have admitted that he put his hand under CKG’s clothes in that area.
The Defence case
The accused gave evidence on his trial. He is legally entitled to give evidence in his defence, or refrain from giving evidence. The choice is his. He gave evidence on oath. He was not obliged to do so. He could have remained silent in answer to the charges, leaving to the prosecution to satisfy me of all the elements of them.
However, the accused elected to give evidence on oath. The effect is that, in assessing him as a witness, his evidence, his credibility and his reliability, I am to give such weight to it as I consider appropriate on the same footing as any other witness. It is for me to decide what weight I am prepared to attach to his evidence as I am required to do in relation to the evidence of the other witnesses in the case called by the prosecution. The accused, however, gave evidence through an interpreter. I have regard to that when assessing his credibility and reliability.
By going into the witness box the accused does not assume any burden of proof. The burden of proof still rests on the prosecution.
The accused said that he was born on 1 January 1976. That means that he was 29 years old as of August 2006 and is now 30 years old. He was born in the southern region of Sudan.
The accused said that he left Sudan in 1998 for reasons of political persecution. His then spent some years in Egypt and came to Australia in May 2004 as a refugee.
The accused said that before the incident the subject of the trial he had never been in trouble with the police before, leaving out any possible differences with politicians in Sudan over religion or race. I bear that I mind when considering whether I am prepared to draw from all the evidence a conclusion of the accused’s guilt. I bear that in mind as a factor affecting the likelihood of the accused committing the crimes charged and when I assess his credibility as a witness. I shall also bear in mind that evidence that the accused has never been in trouble with the police before cannot prevail against evidence of guilt that I find to be convincing notwithstanding that.
The accused said that in 2006 he was working in a vineyard. Through his work he knew AC. Through AC he met CKG and SKM. He met CKG when he was at a teller machine in or around the plaza in Naracoorte. The next time he saw CKG was in the shopping centre where Woolworths is. She was with a girl called S (SKM) and a boy called J (JAS). The accused said that he passed those people on his way to the bottle shop to buy some alcohol. CKG called out to him. He looked back and returned back towards her. CKG came towards him and asked him whether he had any cigarettes. He told her he didn’t smoke but that he could buy some cigarettes if she wanted. When she said “Yes, that will be good”, he went to Woolworths and bought a packet of cigarettes and gave them to CKG. She said “thank you” and she hugged him. She introduced him to SKM.
The accused said that after he gave CKG the cigarettes he left them and went towards the bottle shop. When he came out of the bottle shop SKM stopped him. She asked about AC. He replied that he had left AC in his room at the motel. SMK kept asking about AC so he said that he could get the car and take her to the motel. So he and the two girls were driven to the motel. He said that the two girls were dropped off at Room 10 and he went with the driver of the car to another room of the hotel. He then took some beer back to Room 10. They were big cans of Amsterdam beer.
The accused said that when he saw CKG smoking outside the room he suggested that she smoke inside. He explained that the reason for that was that the motel was owned by his employer and he was worried about his employer seeing the girls standing outside his room and smoking. He said: “it didn’t make us look very good”. He said: “it’s not proper way to do things is to go out with girls that you don’t – not engaged or married, just not make me look good”.
The accused said that inside the room the four people had a can of beer each. He only had a small amount of his beer and when CKG asked whether she could drink the rest of his beer he agreed and passed it to her. She drank that beer.
The accused said that he and CKG were sitting close together on a bed in the room. They were “sort of brushing against each other”. He said this contact was just accidental.
The accused said that the four of them were then driven to SKM’s house. After they arrived there the four of them went into the computer room.
The accused said that at no point prior to them being at the SKM’s house had there been any discussion with either of the girls about how old he was or how old they were.
The accused said that when the four of them were in the computer room SKM sat at a chair at the desk where the computer was whilst the other three sat on the bed. The accused said he was in the middle. He said that as the three of them were touching shoulders he lay back on the bed with his feet still on the ground. CKG did the same. In that position they were talking about general things. Because CKG was a bit drunk he was jokingly telling her that “If you are in Sudan and they catch you drunk in Sudan, they will whip you 44 whip lashes, whips, because that’s according to the Islamic Sharia”. He said that he and CKG were laughing and giggling together, with their faces towards each other.
The accused said that CKG then put her right leg on his left leg. He though that was intentional because she was the one that suggested to swap places with AC. He thought she wanted him close to her. He said that CKG then kissed him on his cheek. He had mixed feelings about that. He was a bit shy because it was unusual for him to do any kissing in front of other people. That was a cultural thing. He thought that CKG was flirty with him but he didn’t know if she wanted anything more than that sexually. At the time she put her leg on his and kissed him he started feeling feelings towards her. He had no idea of her age and didn’t really think about that other than thinking she would have been over age because she looked well endowed in the breasts and she was smoking and drinking alcohol. He assumed from that that she would be older.
The accused said that without moving off the bed he lent over CKG towards SKM and asked SKM if it was possible for her (SKM) and AC to go into another room and leave him and CKG alone. SKM said “No, you and C go to the other room”.
The accused said that using his left hand he held CKG’s right hand and they got up together. They walked together to the door and he was the first one to go through the door. CKG did not try to grab hold of the doorjam as she went through. CKG led him to the bedroom. He didn’t know which room it was because all the doors were closed.
The accused said that CKG opened the door to the room, went in and sat on the mattress. He closed the door to the room. When asked what happened when CKG sat on the bed and he shut the door the accused replied:
Okay, she sat on the mattress with her back leaning against the wall. I sat next to her and I was sort of turning towards her and I started kissing her on the lips. She closed her eyes and then I touched her breasts. She said ‘Your hands are cold’ and after I touched her on the breasts she didn’t pull away or do anything, so I put my hand inside her clothing, in the lower part of her clothing. I was sort of just gently fondling her near the vagina and I was kissing her at the same time, and I thought she was going along with me, so I wanted to get her track pants down but she refused. She lifted herself and she pulled her pants up. I said “Why?’ She said she doesn’t want to have sex with me. I said ‘It will be okay, no problem’. She said ‘No, I don’t want this’. Then she turned her back to the wall, she sat with her back to the wall, and she lit a cigarette. Then I sat with my head on her lap and I lit a cigarette. When we finished the cigarette – she finished her cigarette first – I put my off. So when I put my cigarette off she said ‘We going to go to the other room, to the other people’. She left before me and I came after her. We went to the computer room. She stood next to S (SKM), so when A (AC) saw me he said ‘Okay, let’s go’.
The excused explained that he touched CKG’s breasts both over her clothing and then underneath it. He touched her vaginal area both on and under her clothing. He denied inserting a finger in her vagina and he denied putting his penis in her vagina. He said he didn’t take his clothes off.
When asked whether he normally smoked the accused replied that he “smoke the hubbly bubbly”. The Arabic word is shisha. He said he did not normally smoke cigarettes although shisha is tobacco but it is bubbled through water. He was asked: “So, was there was any reason you had a cigarette on this occasion ...”. He replied: “No, no reason”.
The accused said that he did not notice that CKG appeared distressed in the computer room when he and AC left the house. When asked whether he recalled whether or not he knew there was some problem with CKG later he replied that AC had told him. He said that SKM had sent AC a message on his mobile. At that point SKM arrived and pulled AC aside and spoke to him. AC came back to where he was and told him what happened. He got upset “with the words that A (AC) was saying or what S (SKM) said” so he and AC started walking. That was when he realised that he had left his mobile phone at the house. He went back to the house. He was told by SKM’s father to go to the computer room. When he went there he saw CKG sitting on the bed and SKM sitting at the computer. SKM would not let him go into the computer room. He asked: “What’s happened”. SKM told him that CKG had told her that the accused had assaulted her sexually. The accused said “Call her so that I can talk to her”. SKM said that CKG did not want to talk to him, so the accused said to SKM that he would talk to her (SKM) outside. He said to SKM: “If C (CKG) is claiming that I did something wrong to her, then you and I and A and C should - the four of us together, because you are witnesses, we should all go to the police and have the matter reported”. SKM said “No” because “she didn’t want her father to know”. The accused then gave SKM his phone number and said that “if you decide that you want to go to the police to check this matter further”, she could contact him and the four of them could go to the police. The accused then went back to the motel. He was asleep when the police came.
The accused said that he had not by that time had a shower, although he had washed his hands. He didn’t change his clothes. The clothes he was wearing when the police came where the ones that he had worn earlier.
The accused said that he had last cut his fingernails the night before. He gave police forensic samples and he also suggested to the police that they should take CKG and do the same test for her.
The accused said that during his interview with police when an interpreter was used, he could pick from his accent that he could be Iraqi. He said he was more used to the Egyptian dialect than the Lebanese dialect. He said that he did not use the word “finger” when he was referring to touching CKG’s vagina. He said that during the interview he rectified that and told the interpreter that he said “hand”. He said that he had “fondled” CKG’s vaginal area with his hand, not with a finger.
The accused said that he knows what the term “rape” means. He said that he had studied law for 3 years at the Cairo University. He denied raping CKG. He said that at no time did he believe that CKG was not consenting to being with him in the bedroom whilst he was touching her breasts. He was under the impression and understood that she was consenting at least until he tried to pull her pants down. When he pulled her clothes and she said “No”, he stopped.
The accused said that he was brought up in a war-torn area and was very familiar with the atrocities of rape that were inflicted on women in southern Sudan by the army. When asked whether he could ever countenance raping a woman like CKG or anyone else he replied “No, never”.
The accused was cross-examined about his evidence that he had purchased cigarettes at Woolworths for CKG. He said that he just wanted to help CKG out and he didn’t think about whether she was not old enough to buy cigarettes herself. He just wanted to help her out even though he didn’t really know her at all. It was suggested to him that he asked CKG after he had purchased the cigarettes how old she was. He replied: “No, I didn’t ask her and I was in a hurry anyway”. He said the driver of the car that had brought him there was waiting for him outside. He agreed that despite being in a hurry he had time to go and buy cigarettes for CKG. He was asked why he didn’t say that he couldn’t get cigarettes because he was in a hurry, someone was waiting for him. He answered: “It’s impolite, somebody asks me for something, and I didn’t think it was going to take very long anyway because it was just a short distance, buying it is not like a long conversation like standing there and discussing matters”. He agreed with the proposition that he had time to buy her cigarettes but didn’t have time to have a conversation with her about how old she was. He denied that she told him she was 16 years old and said that he wouldn’t have purchased her cigarettes if he knew that because it’s against the law in Australia. He said he understood that a person had to be over 18 years old to be able to buy cigarettes. The accused said that he thought CKG looked over 18 years old. He denied telling CKG that he was 29 years old. He denied that SKM told him that she was 15 years old.
The accused said that when he and CKG walked out of the room where the computer was, he “was mainly wanting to kiss her and be close to her, but when we got into the room and then I started to feel the urge sexually”. He said he thought she might have the same feeling. He said that when they were in the room he touched CKG’s breast, including her nipple, both over and under her clothing. He denied squeezing it hard so that it hurt. He said he was touching gently, not hard.
The accused denied putting a finger inside CKG’s vagina. He said that he fondled her vagina under her clothing with his all the fingers of his hand, his whole hand. He agreed that when he went into the room and he was kissing CKG he thought at that stage that sexual intercourse might be a possibility and that’s what he wanted to happen. He wanted that to happen after he had started touching her and fondling her. He denied that he proceeded to insert his penis into her vagina. He said: “because if it’s only from one side it defeats the purpose of the whole process”.
The accused denied that CKG was crying at any stage. He denied taking off any of CKG’s clothing or his clothing.
The accused said that after he and CKG left the bedroom he and AC left the house. He said that when they left CKG was standing behind SKM so he didn’t look at her face. He said this when asked if CKG looked happy, or looked as if anything was wrong.
The accused said that when he came back to the house to get his mobile phone SKM was in the same chair as she was before in the room where the computer was. He said that SKM stood up and came towards him and said that she would not allow him to go into the room. He said that AC had told him by then about what CKG had said about what had gone on in the bedroom. He then spoke to SKM and told her that he had wanted to have sex with CKG but that she didn’t want to, so he stopped, he didn’t do anything. He said he thought that SKM “was mainly talking about having sex, like, intercourse”.
The accused said that he had the desire to have intercourse with CKG but stopped when she asked him to stop.
Addresses of Counsel
Ms Wildman, on behalf of the DPP, submitted that I should find that CKG was both a reliable and credible witness and that if I accept her account beyond reasonable doubt as to what took place in the bedroom on the afternoon of 27 August 2006 all elements of each of the two charges of rape will have been proved. She submitted that what occurred prior to CKG and the accused going into the bedroom will assist that conclusion although it will not be determinative of my verdict with respect to those two counts.
Ms Wildman submitted that prior to going into the bedroom with CKG the accused made a number of sexual advances towards her and CKG made it clear that she did not want that. She submitted that the evidence supported a finding that the accused wanted to leave the computer room to be alone with CKG and that by that time he had a sexual interest in her. She submitted that there was a “ring of truth” to a number of things that CKG described about what she said happened to her in the bedroom. She submitted that CKG’s immediate complaint about the incident and the forensic evidence supports CKG’s version of events.
Ms Wildman submitted that if I am not satisfied beyond reasonable doubt that the two acts of sexual intercourse, which she submitted I should find occurred, did not constitute rape, I should, however, convict the accused of the alternative charges of unlawful sexual intercourse. She submitted that I should accept CKG’s evidence that she told the accused that she was 16 years old. That was consistent with the accused purchasing cigarettes for her.
Finally, Ms Wildman referred to what she submitted were a number of aspects of the accused’s evidence that were inherently implausible which should lead me to find that he was not a reliable or credible witness.
Mr Stokes, on behalf of the accused, submitted that there is little evidence that supports CKG’s evidence as to what happened in the bedroom. He submitted that there is no medical evidence that unequivocally points to the offence having occurred as alleged, nor does the forensic evidence do that. The evidence as to those matters is equivocal and is consistent with either account of events.
Mr Stokes referred to those matters upon which a challenge to CKG’s credibility is made. He referred to the many opportunities CKG had, both in the computer room and subsequently in the bedroom, to do something other than allow the acts she alleged to have been perpetrated against her, if they were occurring when she did not want them to occur.
Mr Stokes referred to the accused’s instant denial of the allegations, his offer to go straight to the police with everybody else to sort it out, the fact that he took no action in respect of his clothing, his co-operation with police when they came to speak to him, and his co-operation in being interviewed by police.
Mr Stokes submitted that I should accept the accused’s evidence as to his belief that CKG was older than she in fact was.
Finally, Mr Stokes submitted that I should not be satisfied that the two rapes or the two unlawful sexual intercourses as alleged in the Information are made out, and certainly not made out beyond reasonable doubt.
Legal Considerations and Directions
Accused persons come to this court with a 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 does not have to prove it, with the exception of the “belief in age” defence in respect of the second and fourth counts. Furthermore, nothing short of proof by the crown beyond reasonable doubt will do. It is not 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 any of the charges 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 each offence. I cannot convict the accused so long as I have any reasonable doubt as to any essential element of any of the crimes charged against him. If I am left with a reasonable doubt about his guilt as to any of the charges 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 any of the charges brought against the accused, I should bring in a verdict of guilty in respect of that charge.
CKG gave her evidence via closed circuit television. I am not to, and will not, draw from the fact that special arrangements were made in that regard any inference adverse to the accused, and I am not to, and will not, allow those special arrangements to influence the weight I give to CKG’s evidence.
There was some evidence at this trial about what CKG said to SKM after the accused and AC left SKM’s house at Naracoorte after CKG and the accused had been in one of the bedroom’s there together. There was also evidence from SKM and Constable Parsons that was to the effect that CKG was distressed soon after that time. Constable Parsons’ evidence was that at about 7.00pm on the same day CKG appeared visibly upset, her face was red and she appeared that she had been crying.
What a person says outside court, or other than in evidence in court, is not evidence of what occurred. It follows that what CKG said to SKM and Constable Parsons is not evidence of what occurred shortly before she made those statements, if I accept she did. For that I must rely on the evidence given in court at trial.
The statements by CKG to SKM and Constable Parsons are before me because it is considered that the making of a prompt complaint is relevant in assessing the truth of an alleged victim’s evidence in court. It may indicate that CKG’s behaviour at the time in making the complaint was consistent with the occurrence of the events on which she gave evidence in court. It may also tend to negative any motion that the allegations are later inventions. It may also assist in assessing her evidence by considering the consistency, and therefore the credibility, of what she said then, with what she said in evidence before me.
It is for me to consider whether I accept the evidence of the complaints and, if so, what weight I attach to them in relation to the matters just mentioned. In deciding what weight to attribute to the complaints made in this case, as to the credibility and reliability of them, I should bear in mind the circumstances leading to them and the context in which they were made.
There are reasons that may prompt people to make false complaints. I should exclude other explanations as to why CKG said what she said to the witnesses, and I should exclude those other explanations beyond reasonable doubt before I rely on the evidence of CKG’s complaints to the witnesses as evidence which lends weight to CKG’s credibility and reliability in the evidence she gave.
I am also entitled to use the evidence of CKG’s distress, if I accept it, as evidence potentially showing a consistency between her actions after the events in the bedroom and the evidence she gave in court. There could, however, be a number of explanations for evidence of distress in an alleged victim apart from it being consistent with the evidence that she gave in court that she had just been raped by the accused in the circumstances described by her. Before I can use the evidence of her distressed state, if I am satisfied of the evidence about it, as supporting CKG’s credibility and reliability I must exclude all other possible explanations for it beyond reasonable doubt.
Mr Stokes asked CKG some questions in cross-examination that raised the question of any motive CKG may have had to lie about what she said happened to her at the hands of the accused. Mr Stokes suggested to CKG that she had made up the allegations of rape as she thought they might cause her to get some sympathy from her mother, from whom she apparently was estranged at the time of the alleged offences. CKG agreed that she had been “kicked out” of her house but she said that was because she did not get on with her step-father.
The defence do not have to put forward or provide, let alone prove, any motive CKG had to lie about, or make up, the allegations of rape that she said happened to her. I will not be assisted in reaching my verdicts by asking myself whether or not CKG had not motive to lie about, or make up, what she said happened to her at the hands of the accused in the bedroom at SKM’s house at Naracoorte.
If evidence is before me as to those matters then I am, of course, bound to have regard to it, along with the rest of the evidence. I am entitled to consider what inferences I might draw from such evidence on that topic that I may accept or reject.
Conclusions and Verdicts
The first issue in respect of all counts involves a consideration of whether the two acts of sexual intercourse described by CKG as having occurred in the bedroom at her friend’s house occurred. That is, whether the accused put a finger in CKG’s vagina and whether he put his penis in her vagina.
There was considerable evidence at trial as to what happened on the day of the incident prior to CKG and the accused going into the bedroom together. There was much common ground as to those events between the witnesses who gave evidence of them. Those events, or at least the finer details of them, were, I suspect, of no particular moment to any of the witnesses when they occurred. That accounts for differences in detail, and also accounts for the lack of memory of some witnesses as to certain details. One example is the evidence of witnesses, other than CKG and the accused, as to whether there was mention made at the Woolworths shopping complex during the mid-afternoon of Sunday 27 August 2006 as to the ages of the accused, CKG and SKM. I did not take the evidence of those other witnesses as being that they remember that there was no such discussion on that topic, but rather that they could not remember at the time they gave evidence whether or not there had been.
All witnesses spoke of a meeting between the accused, CKG and others at the Woolworths complex. They all said that they went to a motel where AC was packing to leave Naracoorte, that they had some beer there, that there was some talk there between the young people that were there before CKG, SMK, AC and the accused were driven to SKM’s house where CKG was, for the time being, living.
The evidence of the four witnesses who gave evidence as to what happened in the computer room at SKM’s house also was not much different as between them.
I am satisfied that at the motel the four young people drank some beer, that CKG drank more than one can of beer, and that the accused consumed the least amount of beer of any of them.
I am satisfied that by the time they left the motel CKG was a bit “tipsy” and “giggly”. I am satisfied that she was affected by the beer she had consumed, but not much affected. I am satisfied that there had been some physical contact between she and the accused at the motel and that some of her conduct gave others the impression, reasonably, that she was flirting with the accused. She was probably attracted to him and was somewhat excited to have met him and to be with him. I accept her evidence that she, by her words and gestures, discouraged the accused from having physical contact with her. However, I do not consider that that was because she did not want physical contact with him but rather were the words and actions of an immature girl who was affected by the alcohol that she had drunk.
I am satisfied that during the time the four young people were in the computer room there was further physical contact between CKG and the accused. That was on the bed when they were there next to AC as he was playing PlayStation. I prefer the evidence of the witnesses who spoke of CKG and the accused laying down on the bed next to each other. I am satisfied that parts of their bodies were touching each other. I am satisfied that they were talking and laughing together and at one point they had their arms around each other and there was a brief kiss between them.
I reject AC’s evidence that at one point the accused had one of his hands around CKG’s genital area. I consider that AC was the most unreliable of the witnesses who gave evidence before me. Whilst I consider that his memory of CKG and the accused lying down on the bed next to him, and that his memory of what CKG had drunk and that she was flirting and tipsy were correct, I found the balance of his evidence an unreliable basis for any of my findings.
There is no doubt that CKG and the accused left the computer room together and went to the bedroom next to the computer room. The circumstances in which they left was the subject of conflicting evidence. I do not consider it necessary for me to decide the exact circumstances of their leaving the computer room, although I am not satisfied that CKG said or did anything to indicate that she did not wish to leave the computer room with the accused. If she did resist in some way, that was probably more an expression of playful reluctance rather than a positive desire not to leave the computer room with the accused. I am satisfied that, because of what had happened between CKG and the accused both in the computer room and at the motel, the accused wished to be alone with CKG.
CKG and the accused went to the bedroom alone. They entered the bedroom and the door was closed.
Their accounts of what happened next were not much different as to what initially occurred there. On either version the accused kissed CKG on the lips. CKG said that was probably for a minute or a minute and a half. The accused said that he touched CKG’s breast or breasts. There was contact with CKG’s vaginal area by the accused with what he said was his hand and by what she said was his finger which he put into her vagina. It seemed to be common ground that the accused attempted to remove CKG’s lower clothing at some point. CKG’s evidence was that he succeeded after she tried to prevent him and told him she didn’t want to do it. She said that after he put his finger inside her he then put his penis in her vagina. The accused’s evidence was that when he tried to remove her lower clothing she refused and pulled her pants up. He said to her that it would be “okay, no problem” but when she said “No, I don’t want this”, he stopped. He said that he did not have sexual intercourse with her.
Both CKG and the accused gave evidence of one or both of them then smoking a cigarette or cigarettes. Certainly, the issue of cigarettes was the subject of evidence from both CKG and the accused.
I consider that CKG was a truthful witness. I consider that she was trying to tell the truth as best she recalled the events about which she gave evidence. There was one important aspect of her evidence in respect of which I had a doubt as to the truth of what she said. I shall refer to that later.
I consider that CKG’s evidence as to the two acts of sexual intercourse that she described as having occurred in the bedroom is reliable. I am satisfied of that for a combination of reasons.
First, I was impressed by CKG’s evidence of the events she said happened in the bedroom, and the manner in which she gave that evidence, at least so far as it related to the acts of sexual intercourse she described occurring there. Secondly, I accept the accused’s evidence when he said that he wanted sexual intercourse to occur between the two of them, and that he thought it would occur in the bedroom when they were there. I am satisfied that the accused was sexually aroused and wanted to have sexual intercourse with CKG. I am satisfied that at that time the accused thought that CKG was of a like mind to him. That was because of the events that had occurred between them shortly before when they were in the computer room and because of what happened initially in the bedroom. Thirdly, I am satisfied that the DNA evidence is significant as I consider that it strongly indicates that one of the accused’s fingers and also his penis came in contact with CKG’s vaginal area, notwithstanding there were said to be other possibilities. Fourthly, I consider that CKG’s complaint and distress immediately following the events in the bedroom give some support to her credibility and reliability in respect to the acts of sexual intercourse that she said occurred in the bedroom. That comment is limited to the acts of sexual intercourse and does not apply to issues that relate to elements of the offence of rape other than the first element. Fifthly, whilst I believe much of the accused’s evidence and found much of it reliable, I do not believe his evidence that no act of sexual intercourse occurred with CKG in the bedroom. It is true that he denied immediately that he had done anything wrong with CKG, although I consider that his denial was that he raped CKG rather than a denial of any sexual contact with her. Whilst he offered immediately that everyone should go to the police, that must be viewed in light of his record of interview where he admitted that he had fondled CKG’s vagina with his hand under all her lower clothing. His insistence on the difference between his fingers and his hand, whilst I am satisfied that that distinction was a proper distinction to be made in the language used during the record of interview, is not, to my mind, particularly compelling. I see little, if any, distinction between the use of one’s hand, which includes one’s fingers, and one’s fingers, when describing a fondling of a girl’s vagina.
For these reasons I am satisfied beyond reasonable doubt that the accused inserted one of his fingers into CKG’s vagina whilst the two of them were in the bedroom alone together. I am satisfied beyond reasonable doubt that the accused pulled down CKG’s lower clothing before he did so. I am satisfied beyond reasonable doubt that after the accused had inserted a finger in CKG’s vagina he touched her breast underneath her brassiere, and then he had vaginal sexual intercourse with her with his penis. I am satisfied that the accused eventually stopped when CKG asked him to stop. He removed his penis from her vagina. He did not ejaculate. I am satisfied that when the accused pulled up his own track pants CKG’s DNA was transferred from his penis onto the inside front of his track pants. I am satisfied that these were the circumstances that resulted in CKG’s DNA being found on one of the accused’s fingers and on the inner front of his track pants.
Accordingly, I am satisfied that the two acts of sexual intercourse which are the subject of the four counts on the Information are proved beyond reasonable doubt.
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 not, for example, dealt with the evidence that related to the fingernails of the accused. I do not consider that evidence relevant or helpful in reaching my conclusions.
The next issue I have to consider is whether it has been proved that CKG did not consent to either of the acts of sexual intercourse I am satisfied occurred. I am not satisfied of that beyond reasonable doubt as to either of counts one and three. I am not so satisfied despite considering that CKG was a truthful witness and that she was, on the whole, a reliable one.
CKG’s evidence was that SKM had asked her immediately after the accused had left the house whether he had raped her. Her evidence was that she did not answer that question, but looked down to the ground and was crying. SKM was asked if CKG had said anything to her about whether she and the accused had had sex. SKM replied that CKG had done so but she could not remember what CKG’s answer was. She could not remember what the effect of CKG’s words were. She could not remember whether anything else was said on the topic. Accordingly, there is no evidence before me that CKG complained to the first person she spoke to after the events in the bedroom that she had been raped. On her own evidence she did not tell the girl who was her “best mate”, in whose bedroom she was staying. I consider this is significant. I consider that I cannot exclude, beyond reasonable doubt, that CKG’s complaints and distress resulted from her participating in consensual sexual intercourse with the accused and then almost immediately regretting it when she realised the enormity and significance of what had just happened between herself and the accused. Such a doubt also arises as a result of what CKG said happened whilst they were still in the bedroom after the acts of sexual intercourse. That evidence related to cigarettes. I acknowledge that victims of alleged crimes, particularly young girls who are the alleged victims of sexual crimes, react in a wide disparity of ways following such acts. I have a doubt, as a result of that evidence, as to whether CKG did not consent to the acts of sexual intercourse as they were described by her. I have not concluded that CKG consented to having sexual intercourse with the accused. I have not been able to exclude other explanations, beyond reasonable doubt, as to why CKG said what she did and appeared as she did after she and the accused came out of the bedroom. My conclusion is that I have a reasonable doubt as to whether she did not consent
Accordingly, I am not satisfied that the second element of either of the charged offences of rape has been proved beyond reasonable doubt.
The last issue as to the two counts of rape charged against the accused would be whether I am satisfied beyond reasonable doubt that the accused knew that CKG was not consenting, or was recklessly indifferent as to whether she was consenting. This third element only arises for consideration if I were satisfied that the second element was proved in relation to either count alleging rape. I indicate, however, that had I come to a different conclusion as to the second element of the two offences of rape charged I would not have been satisfied beyond reasonable doubt that the accused knew that CKG was not consenting, or was recklessly indifferent as to whether she was consenting. I would not have been satisfied of the third element of the two counts of rape for similar reasons that lead to my conclusions as to the second element of either charge. I could not exclude as a reasonable possibility that the accused thought that CKG was consenting.
I find the accused not guilty of the first and third counts on the Information.
As to the alternative counts, being the second and fourth counts alleging unlawful sexual intercourse, I am satisfied beyond reasonable doubt that the acts of sexual intercourse alleged in those two counts occurred. Further, I am satisfied beyond reasonable doubt that CKG was 16 years old at the time they occurred and, accordingly, was less than 17 years old at the time.
As a result of those findings I would find the accused guilty of the second and fourth counts on the Information unless I am satisfied that the accused has established, on the balance of probabilities, that he believed on reasonable grounds that CKG was of or above the age of 17 years on 27 August 2006 when the two acts of sexual intercourse occurred.
CKG’s evidence was that she had told the accused at Woolworths earlier on the same day as the alleged acts of sexual intercourse occurred that she was 16 years old and her friend SKM was 15 years old. She said that on the same occasion the accused told her that he was 29 years old. The accused denied that there was any such conversation about anyone’s ages at Woolworths, including his own. SKM’s evidence was that she was sure that the accused mentioned his age, but she could not recall whether or not any mention was made of the ages of the two girls. JAS gave evidence that he did not hear any discussion or conversation by anyone on the topic of people’s ages.
There was other evidence that bears upon whether the accused has established to my satisfaction his belief on reasonable grounds that CKG was of or about the age of 17 years. That evidence related to the fact that it was common ground that the accused purchased some cigarettes for CKG at Woolworths earlier on the same day that the events in the bedroom at SKM’s house occurred.
The accused’s evidence, and in particular his cross-examination, as to why he purchased cigarettes for CKG was unconvincing. I have referred to his cross-examination earlier in these reasons. Even taking into account cultural matters as between young girls in Australia and a young man from Sudan, I consider that the evidence the accused gave on this topic was contrived and evasive. I consider it likely that he offered to buy CKG cigarettes because he knew, or thought, that she was not old enough to buy them for herself. I am not satisfied that the accused believed on reasonable grounds that CKG was of or above the age of 17 years. Whilst I acknowledge that is a possibility, I am not convinced that he probably had such a belief.
I find the accused guilty of the second and fourth counts on the Information.
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