R v Dobbs

[2022] SADC 53

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v DOBBS

Criminal Trial by Judge Alone

[2022] SADC 53

Reasons for the Verdict of her Honour Judge Fuller 

6 May 2022

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

Accused charged with rape. Complainant alleged to be intoxicated and asleep in bed at her mother's house with accused and another male friend, CR. Complainant had little recollection of events after arriving at mother's house and did not allege accused had raped her. Complainant alleged earlier uncharged acts of non-consensual sexual touching by accused when asleep with him in the same bed. CR alleged that in his presence the accused had inserted his finger into complainant’s vagina whilst she was asleep. Complainant reported matter to police 11 days later.

Prosecution case depended upon reliability and credibility of evidence of CR and complainant’s evidence of uncharged acts and a Facebook message from accused apologising to the complainant.

Held: CR and complainant significantly affected by alcohol and reliability and credibility of their evidence undermined by proved prior inconsistent statements and Facebook messages between accused and complainant. Complainant’s evidence of uncharged acts rejected. Accused's apology in Facebook message not capable of being used as an admission of guilt of offence charged.

Verdict: Not guilty of rape. Not guilty of alternative offence of indecent assault.

Criminal Law Consolidation Act 1935 (SA) ss 46(2), 46(3), s.47, 48(1); Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) s 13(7), 34L, 34L(2)(a), 34L(2)(b), referred to.
R v Rahmanian [2010] SASC 137; R v Blayney (2003) 87 SASR 354; R v G [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438; Azzopardi v R (2001) 205 CLR 50; R v Sparks (2014) 121 SASR 132; Ciantar (2006) 16 VR 26; Butler [2011] VSCA 417, considered.

R v DOBBS
[2022] SADC 53

1. The accused is charged on Information with the following offence:

   Statement of Offence

   Rape. (Section 48 (1) of the Criminal Consolidation Act, 1935).

   Particulars of Offence

   Gordon Reign Dobbs on the 23^rd day of June 2019 at Wallaroo, engaged, or continued to engage in sexual intercourse with [MT] by penetrating her vagina with his finger, without [MT]’s consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact that she was not so consenting.

   The plea

2. The accused pleaded not guilty and at his election I heard the trial without a jury. I now publish my reasons for the verdict I am about to deliver.

   Overview of the prosecution case

3. The circumstances of the alleged rape are unusual. The complainant, MT, has no memory of any conduct by the accused capable of constituting the crime of rape. There is no forensic evidence supporting an allegation of digital penetration by the accused. The prosecution case rests principally upon the evidence of an eyewitness to the alleged rape, a young man who was in bed with the complainant and the accused at the material time and saw the accused penetrating the complainant’s vagina with his finger.

4. In summary, MT and the accused became friends in 2019, when both were living on the Yorke Peninsula, in Wallaroo and Kadina respectively. MT and the accused were also friends with brothers CR and AR and brothers, DYT and DAT. MT and the accused were close friends and would often sleep in the same bed together. They would regularly communicate with each other via Facebook and would socialise with other members of their friendship group, often involving outings to the local hotel and drinking alcohol.

5. MT alleged that there were 3 or 4 occasions when she was asleep and woke up to find the accused touching her on her breasts, bottom or vagina. She would tell him to stop, and he did, and would often apologise then or the next day. She did not consent to this unwanted sexual touching but continued to share a bed with him from time to time. MT also shared a bed with the accused and CR on at least one or two occasions.

6. On 22 June 2019 MT, the accused, CR and other friends went out drinking at a couple of local hotels and then MT, the accused and CR caught a taxi to her mother’s house. She was very drunk when she arrived home and could not recall sharing a bed with anyone. She woke up the next day in the lounge room on a mattress made up as a bed. CR was in the bed with her. That day the accused sent her a Facebook message in which he apologised for what he did, saying he did not know why he did what he did and that he hated himself so much and that she did not deserve it.

7. CR was in bed with MT and the accused after going home with them in a taxi on 22 June 2019. He woke up because he felt movement under the covers and lifted them up to see the accused’s hand on MT’s bottom. He told the accused to stop it and that MT was asleep. The accused stopped and CR went back to sleep. Some time later he woke again to movement under the covers and lifted them up to see the accused inserting his finger into MT’s vagina while she was asleep. He told the accused that he should not be doing that to MT and then told him to ‘fuck off’ and the accused left the room and slept in another room. The next morning CR raised with the accused what he had done and the accused left. MT reported the alleged rape to the police on 4 July 2019.

   The elements of the offence

8. To prove the offence of rape, the prosecution must prove beyond reasonable doubt the following elements:

   ·The accused engaged, or continued to engage, in sexual intercourse with the complainant; and

   ·The complainant did not consent to engaging in the sexual intercourse – or – had withdrawn consent to the sexual intercourse; and

   ·The accused knew the complainant did not consent or had withdrawn consent – or – was recklessly indifferent to the fact that the complainant did not consent or had withdrawn consent.

9. Sexual intercourse for the purposes of this trial means penetration of the complainant’s vagina or labia majora by the finger or fingers of the accused and includes a continuation of that activity.

10. Consent involves free and voluntary agreement.[1] This requires a positive decision by the complainant to consent.[2]

    [1] Criminal Law Consolidation Act 1935 (SA) s 46(2).

    [2] R v Rahmanian [2010] SASC 137, [32].

11. A person is taken not to freely and voluntary agree to sexual intercourse if:[3]

    [3] Criminal Law Consolidation Act 1935 (SA) s 46(3).

    ·the activity occurs while the person is asleep or unconscious; or

    ·the activity occurs while the person is intoxicated (whether by alcohol or any other substance or combination of substances) to the point of being incapable of freely and voluntarily agreeing to the activity.

12. As Gray J explained in R v Blayney:[4]

    [4] R v Blayney (2003) 87 SASR 354; [2003] SASC 405 [75]-[76].

    There are a number of factors which may be relevant to determining the question of consent. They will vary according to the particular circumstances of each case. A person who does not offer actual physical resistance to sexual intercourse is not by reason of that fact alone to be regarded as consenting to sexual intercourse.

    Mere submission of itself is not consent although it is an item of evidence that may be relevant when considering the question of whether the complainant consented. It may be relevant to whether the Crown has proved a lack of consent beyond reasonable doubt. It may also be relevant to the question whether an accused knew that the complainant did not consent or was recklessly indifferent as to whether the complainant was consenting. It may also be relevant to a suggestion that an accused had a reasonable although mistaken belief that a complainant was consenting.

13. It is necessary to distinguish between the situation where the complainant is so intoxicated as to be unable to consent and the situation where the complainant consents due to lowered inhibitions or otherwise.[5]

    [5] R v Blayney (2003) 87 SASR 354; [2003] SASC 405 [17], [23].

14. Consent can be given by words or by conduct or a combination of both.  Consent can be inferred by conduct, behaviour, or words.  Absence of consent does not have to be in words, it may also be communicated by conduct.

15. A complainant is not to be regarded as having consented to the particular act the subject of the charge because he or she consented to being touched by the accused in a different way or had consented to being touched by the accused in this way on some other occasion.

16. An accused is recklessly indifferent to the fact that another person does not consent to an act of sexual intercourse if the accused:[6]

    [6] Criminal Law Consolidation Act 1935 (SA) s 47.

    (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 decides 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 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.

17. If the accused honestly, although wrongly believed that the complainant was consenting, perhaps because he misinterpreted her words or conduct, then he would not have the necessary guilty state of mind.

    Indecent assault as an alternative

18. This offence is a statutory alternative to the charge of rape.[7] If I am not satisfied beyond reasonable doubt that the accused had sexual intercourse with the complainant by penetrating her vagina or labia majora with his finger, I will find him not guilty of rape and then, depending on the basis for that verdict, the alternative verdict of indecent assault may arise for consideration.

    [7] Section 75, Criminal Law Consolidation Act, 1935.

19. The elements of the offence of indecent assault are:

    ·The accused applied force to the complainant. For the purposes of this charge, the force applied need not be great. Indeed, a mere touch is sufficient.

    ·The use of force must have been intentional or deliberate. An accidental application of force is not sufficient.

    ·The complainant did not consent to the application of force. An accused person does not commit an indecent assault if he applies force to a complainant and the complainant consents to that application of force.

    ·The accused knew that the complainant was not consenting or was recklessly indifferent to whether she was consenting or not. An accused person is recklessly indifferent if he:

    a)Is aware of the possibility that the complainant might not be consenting to the act but decides to proceed regardless of that possibility; or

    b)Is aware of the possibility that the complainant might not be consenting to the act but fails to take reasonable steps to ascertain whether the complainant does in fact consent to the act before deciding to proceed; or

    c)Does not give any thought as to whether or not the complainant is consenting to the act before deciding to proceed.

    If the accused honestly, although wrongly believed that the complainant was consenting, perhaps because he misinterpreted her words or conduct, then he would not have the necessary guilty state of mind.

    ·The assault occurred in circumstances of indecency. It is for me to determine what is indecent having regard to reasonable contemporary standards. It is for me to determine, by reference to those standards, whether I consider any conduct proved in this case to have been indecent. ‘Indecency’ means some form of sexual conduct or activity which, in my opinion, ought to be regarded as indecent having regard to the circumstances of the conduct or activity and contemporary standards of morality and decency.

    Issues in dispute

20. The issues in dispute are: -

    ·Has the prosecution proved beyond reasonable doubt that the accused performed an act of sexual intercourse upon the complainant, namely digital penetration of the complainant’s vagina?

    ·If sexual intercourse has been proved beyond reasonable doubt, has the prosecution proved that the complainant did not consent to that act of sexual intercourse?

    ·If the prosecution has proved beyond reasonable doubt that the complainant did not consent, has it proved beyond reasonable doubt that the accused knew she was not consenting or was recklessly indifferent as to whether she was consenting?

21. The defence case was that no act of sexual intercourse took place and if I am not satisfied beyond reasonable doubt that it did, then the accused must be acquitted.

22. However, even if the act of sexual intercourse is proved beyond reasonable doubt, in the circumstances of this case, it was disputed that the complainant was asleep or otherwise so intoxicated as to be incapable of consenting.

23. Finally, if an act of sexual intercourse without consent has been proved beyond reasonable doubt, it was disputed that the accused knew the complainant did not consent or was otherwise recklessly indifferent as to that fact.

    General directions

24. The accused elected for trial by Judge sitting without a jury pursuant to the provisions of s 7 of the Juries Act 1927. As Lovell J observed in R v G,[8] whilst the Act is silent as to any requirement regarding the contents of the reasons for verdicts, such requirements are established in a number of authorities: see R v Keyte (2000) 78 SASR 68, Douglass v The Queen (2012) 86 ALJR 1086; and AK v The State of Western Australia (2008) 232 CLR 438 per Heydon J.

    [8] R v G [2015] SASC 186.

25. The general directions were summarised by Lovell J in R v G. They are as follows:

    As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.

    The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged.

    The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.

    The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.

    I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.

    If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.

26. The accused elected not to give evidence. He was under no obligation to give evidence. No adverse inference may be drawn from the fact that he has exercised that right. In particular, the silence of the accused does not constitute any form of admission, may not be used to fill gaps (if any) in the prosecution case and may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt.[9]

    [9] Azzopardi v R (2001) 205 CLR 50 at [51] and R v Weetra (2010) 108 SASR 232 at [67].

    The evidence

27. I turn to examine the evidence in more detail.

    The complainant – MT

28. The court was closed during MT’s evidence, and she gave her evidence by audio-visual link. Pursuant to s 13 (7) of the Evidence Act 1929 I direct myself that these arrangements do not permit me to draw any inference adverse to the accused and nor do they influence the weight to be given to the MT’s evidence.

29. MT was 27 years old when she gave evidence. She moved to Wallaroo, South Australia from Victoria in late 2018. She lived with her mother who had a house in Wallaroo. She obtained employment at the Copper Coast Hotel and North Beach Kitchen.[10]

    [10] T 117.

30. She first met the accused in early 2019. She and the accused had mutual friends and they would go to the pub together, spend time at friends’ houses, watch movies and play video games. Their mutual friends were brothers AR, CR and brothers DYT and DAT and a person whom she only knew by the first name J. There were other people in the friendship group, including two girls who were cousins.[11]

    [11] T 118.

31. MT first met the accused at the house in which DYT and DAT lived. She developed a close friendship with the accused and said ‘we used to help each other out when we were going through emotional struggles…’[12] They confided in each other.[13]

    [12] T 119, 20-22.

    [13] T 119.

32. MT would communicate with the accused every few days by telephone or on social media; Facebook, Snapchat and text messages. She and the accused and her friends would drink alcohol at the pub or at each other’s houses. She was not sure if she took illicit drugs with the accused, but she had taken cocaine before but not very regularly.[14]

    [14] T 119-T 120.

33. When the accused was living with DYT and DAT, she stayed the night at the house they were sharing in Kadina. She stayed there sometimes weekly, sometimes fortnightly. When she stayed there, she and the accused would share a bed together. She thought it was a king-sized bed.[15] There were occasions when AR or CR would also share the bed with her and the accused. Sometimes they had been consuming alcohol before sharing the bed.[16] She was not certain but thought that the accused had stayed at her mother’s house with her.[17]

    [15] T 121.

    [16] T 122.

    [17] T 120-T 121.

34. MT recalled the first time that she shared a bed with the accused:

    I believe he had moved into the spare room that day and sometimes I would stay in Kadina because I couldn’t get back to Wallaroo because I had been drinking, so I’d sleep in the spare room. And I believe he was in the bed and I think I tried to get into the bed and realised he was in the bed and I think I was like ‘Sorry, I usually sleep in here, I didn’t realise you were in here’. And then I think we came to an agreement that it was okay for me to stay there, and yeah, that was the first time, from memory.[18]

    [18] T 122, 30-38; T 123, 1.

35. MT was asked if there had been any sexual interaction between herself and the accused when she had shared a bed with him and she said no.[19] I asked her what she understood sexual interaction to mean and she replied, ‘consensual touching, kissing, you know, penetration, etc’.[20] MT said that on the occasions that she shared a bed with the accused at the house in Kadina she never touched him in a sexual way. However, she said that the accused touched her on 3 or 4 occasions in a sexual way. The first occasion occurred when they were asleep together and spooning each other.[21] She said that she would sometimes wake up and he would be touching her breast, bottom or vaginal/genital area. She said she would push him away and he would apologise at the time or the next day. They would go back to sleep. She said the accused would usually apologise the next day either by message or in person.[22]

    [19] T 123.

    [20] T 123, 11-12.

    [21] T 123.

    [22] T 124.

1. MT said that when she and the accused were ‘spooning’ their arms would be over each other, usually over the stomach. They would sometimes sleep in that position. MT said that when she spooned or cuddled the accused that was non-sexual touching.[23]

   [23] T 124-T 125.

2. MT said that when she and the accused would speak about him touching her the next day, he would apologise, and she accepted his apology. There were about 3 or 4 occasions when the accused touched her breasts, bottom or vaginal area in a sexual way, and she accepted his apology afterwards every time and remained friends with him.[24]

   [24] T 126.

3. MT estimated that she shared a bed with the accused around ten to fifteen times, possibly more, during the course of their friendship.[25] On the occasions she described during which the accused touched her on the breast, bottom or vaginal area they had been out drinking at the pub and she could not get back to Wallaroo so she would stay at the house the accused shared with DAT and DYT and share a bed with him. The other occasions upon which she would share a bed with the accused were not always associated with going out and drinking at the pub; sometimes it would be after watching movies or playing video games.[26]

   [25] T 126.

   [26] T 127.

4. CR was part of her friendship group, and he was three years younger than her. She shared a bed with CR and the accused at Kadina on at least one or two occasions, possibly more but she could not recall.[27] This usually occurred after they had been out drinking. MT said her relationship with CR was not a romantic one. She also shared a bed with him and the accused at her mother’s house in Wallaroo once and this was on 22 June 2019.[28]

   [27] T 127.

   [28] T 128.

5. On Saturday 22 June 2019, she had arranged to meet up with CR, AR, the accused, and DYT and DAT. Those arrangements were made by Facebook and phone calls.[29] The first place they met was at the Angler’s Inn Hotel in Kadina and they stayed there for a few hours. She was drinking Captain Morgans rum mixed with ginger ale. She had four or five rum and ginger ale drinks each hour.[30] After leaving the Angler’s Inn she, the accused and CR went to the Copper Coast hotel, but she was not sure what time they arrived there. She continued to drink rum and ginger ale but said she would have slowed down towards the end of the night.[31] On a scale of sobriety of 1 to 10, with one being sober and 10 being paralytic, MT said she was 6 or 7 when she left the Copper Coast hotel.[32] After leaving the Copper Coast Hotel she, the accused and CR went in a taxi to her mother’s house. She did not think that it had been pre-arranged for the two of them to go to her house.[33]

   [29] T 129.

   [30] T 130.

   [31] T 131-T 132.

   [32] T 132.

   [33] T 133.

6. MT was shown P1, the photographs of her mother’s house and identified the loungeroom in which she slept on a mattress.[34] MT said they arrived at her mother’s house sometime after midnight. They had bought beer at the hotel and brought it home. By the time she arrived home, she placed herself at 8 or 9 on the scale of sobriety. All she was able to recall was getting into a taxi outside of the Copper Coast Hotel.[35] She thought that CR and the accused had come home with her because they all wanted to keep drinking and listen to music.[36] She did not recall sharing a bed with anyone. She woke up the next day in the lounge room on the mattress. CR was also on the mattress. She had a conversation with CR as a result of which she went to the police and made a report.[37]

   [34] T 136.

   [35] T 140.

   [36] T 141.

   [37] T 142-T 143.

7. I asked MT what she was wearing, if anything, when she woke up the next morning. She thought she was wearing her clothes from the night before, namely T-shirt, pants underwear and bra.[38] Although she could not recall the pants she was wearing she said all of the pants she owned had buttons and zips and she would have been wearing a belt with them. She could not recall if her belt was on when she woke up or whether the pants she was wearing were zipped and buttoned.[39] She had been wearing Doc Martens shoes with socks the night before but was not sure if she had socks on when she woke up and did not think she was wearing her shoes.[40]

   [38] T 143.

   [39] T 144-T 145.

   [40] T 146.

8. MT did not recall seeing the accused that morning, but she did receive Facebook messages from him: Exhibit P2. In response to the messages, MT blocked the accused on Facebook. Those messages comprising P2 were as follows:

   22 Jun AT 16:13

   Accused: AR said he’d probably be keen to drink but he’s not going out so we can all (me you and CR) rock out to his later on

   Depends on what you and CR have planned though. CR’s coming here soon so I’ll talk to him and see what he’s doing anyway.

   22 Jun AT 16:26

   MT: Yeah I’ll be there soon

   Accused: Sweet as see you guys soon then

   23 Jun AT 10:51

   Accused: I am so so so so so so fucking sorry for what I did [MT]. I don’t expect you to forgive me. But I want you to know that I mean it from the bottom of my heart, that I am so sorry. I don’t know why the fuck I did what I did. And I hate myself so much. You don’t deserve that shit. I’m so sorry.

9. MT then identified Facebook messages exchanged between her and the accused in April 2019: Exhibit P3.

   Accused: Hey, just wanted to apologize for touching you and stuff last night ay. Shouldn’t have been doing that when It was obvious you weren’t wanting to do anything. Been feeling embarrassed and a bit uneasy about it all day

   26 Apr 2019 AT 2:46 PM

   MT: Hey that’s cool, was kinda waiting for you to say something yesterday but ya didn’t so it was awkward

   MT: I figured I apologised to you and was waiting for the same ya know

   26 Apr 2019 AT 3:13 PM

   Accused: Yea I wanted to apologize yesterday but I felt really bad so it felt too awkward to apologize. That’s why I was a bit off yesterday too. Really am sorry, shouldn’t have done that

   26 Apr 2019 AT 3:29 PM

   MT: I’m assuming someone said something???

   Accused: Na I just knew I was in the wrong. I wanted to apologize in the morning but feeling as bad as I did, made it harder to apologize

   26 Apr 2019 AT 3:48 PM

   Accused: Anyway, I hope you’re okay and I hope you can forgive my behaviour

   26 Apr 2019 AT 4:01 PM

   MT: Yeah all good

   MT: Glad you took the time to apologise

   Accused: I should have apologized straight away. Was just too scared to because I felt so bad

   26 Apr 2019 AT 5:44 PM

   MT: I’m not that intimidating am I?? Haha

   Accused: Yes!! Very! I only let you sleep next to me when you rocked up at 3am because I was terrified lol

   26 Apr 2019 AT 6:22 PM

   MT: Hahaha good joke

10. MT said the apology from the accused was for touching her in bed at Kadina on her genital area and her breasts. This occurred on the first occasion they met, when she crawled into the bed without realising the accused was there.

11. MT then identified a series of Facebook messages between her and the accused in May 2019: Exhibit P4.

    Accused: …been stressful as with your tyre and stuff. Who helped you out? Na but I got pretty far. Kept dying from bullshit (me rushing LOL) My sleep was okay but missed your cuddles haha how was your sleep by yourself

    17 May 2019 AT 12:44 PM

    MT: I got mooka to help after he finished work. Just gotta get a replacement and another wheel alignment. #fml Haha good on ya for sticking to it though hey. Aw. That’s a bit sad, haha. I figured 4 nights in a row is a bit much. And I figure the boys will start giving us shit no doubt. Mine was okay, again didn’t…

    MT: …you’ve noticed but I wake up a lot of the time. Also soz about just passing the fuck out the other night. Hope I didn’t do anything embarrassing hahaha and if I did, hang onto it until my birthday

    Accused: Yea I figured you got him to come help you out which is good, made it easier on you ay. Yea I noticed that haha but it’s algood, I tend to wake up heaps too during the night. Na it’s algood I knew you were tired and I was falling asleep too so as soon as I noticed you were crashed out, I went to sleep too. They actually haven’t said anything and I don’t care if they do [smiley face emoji] I like your company and your cuddles so it’s algood

    17 May 2019 AT 1:28 PM

    Accused: Aaaand that’s for me to know and you to find out. . Hahaha na you didn’t d anything embarrassing. Try have a nap some time today then, gotta look after yourself

    17 May 2019 AT 2:07 PM

    MT: Ah yes good stuff. Your cuddles are nice too and I’ve noticed if I wear pants we have no sexy soo soo’s haha. ??

    MT: Yes boss I’ll try but also I can’t so thanks but no thanks haha

    MT: It’s cool I’ll take a sleeping tablet tonight and be saaaweeeeeet

    MT: What’s the plan for the weekend?

    17 May 2019 AT 3:26 PM

    Accused: I think i still did it when you wore them but I knew you were drunk the other night and just know I have to control myself otherwise I might end up losing a good friend and I don’t want that. I was gonna suggest sleeping tablets too. Be good I reckon so you get a proper rest. Gonna do some washing tonight or in the morning and tomorrow I’ll do the oil for my car. Might do my air con or my rare springs too. What are your plans? Working? But yea I think pants on probably makes a difference too. So if you stay over, maybe wear PJs to keep me a bit more relaxed haha also, I got spyro so I’ll be playing that [laughing emoji]

    MT: Haha maybe you should learn to control your urges instead of making me cover up??? Every though of that mister anti feminist Yeah just working tonight and tomorrow and hanging out with…

    Accused:…feminist, I believe in equality. But I haven’t thought deeply about the subject so could be a good controversial #realtalk conversation there. Sounds like fun haha gonna be a busy night tomorrow night

    MT: Yeah sounds good I’ll give ya an edumacation hahah

    Accused: Churr teacher churr haha better not be 1 of those hard ass old school teachers with the belts and strap though haha

    MT: Don’t make it dirty god dammit

    MT: You got a real life lesson to learn

    MT: And if I have to use brute force I will

    MT: Bulllllllshieeeeeet

    MT: You owe me $20 cuz I call BULLSHIT

    MT: Hahaha

    Accused: I was actually beign serious but I like the way you think though [three cry-laughing emojis]

    MT: You’re a filthy liar

    Accused: Just gonna have to take my word for it because I cant prove my innocents haha

    MT: Yeeeah yeah

    MT: I’ll believe it when I see it

    Accused: hahaha looks like…gonna be forced to give you $20 then ay

    Accused: align="left">Accused: Don’t know if you’ve seen that but it’s hilarious

    MT: Hahaha $20 lousy dollars

    MT: Pay up fool

    Accused: Or what?

12. As is evident, some of these messages referred to replacing the wheel on her tyre, others about sleep and cuddles and sleeping four nights in a row with the accused. It is also clear from an examination of P3 that the message thread is not complete and there are missing messages.

13. MT said that the messages in which the accused said, ‘pants on probably makes a difference too’ and her response ‘ha ha, maybe you should learn’ were messages about the accused touching her when they shared a bed together. I asked her what was meant by her message ‘sexy soo soo’s’ and she said it may have been a typo and perhaps the ‘soo soo’s’ was ‘no no’s’.[41]

    [41] T 150-T 152.

14. In cross-examination, MT agreed that the first time she met the accused was on the occasion that she crawled into his bed in the middle of the night. She had never met him or spoken to him before. It was put to her that she put a leg over his waist and kissed him. She said she did not remember doing that but said it was possible and agreed that she was quite intoxicated. She said she was 7 or 8 on the scale of sobriety.[42]

    [42] T 167.

15. MT said that she did not know whether the accused had to get up early the next morning for work. She did not recall taking his hand and putting it on her body but said it was possible. It was put to MT that the accused told her to stop and that he had just got out of a relationship with a girl named Emily earlier that day.[43] MT said the accused had told her this at a later stage, when they got to know each other.[44]

    [43] T 168.

    [44] T 169.

16. MT agreed that she had given four different statements to police, the first being 4 July 2019, the second 24 September 2019 and two further statements both on 31 January 2022. MT agreed that she told police in her statement dated 24 September 2019 that she first met the accused at DYT’s house in mid-April 2019 and that she had been invited by a work friend for a get-together and the accused was there when she arrived. She agreed that what she told the police was wrong.[45] However, MT denied that she said that to police to conceal the fact that the first time she met the accused was when she had climbed into his bed unannounced. She said her memory was not ‘great’ and she would not have done that on purpose and she was focussing on the incident she was reporting.[46]

    [45] T 170.

    [46] T 171.

17. MT agreed that the purpose of the statement was to fill in the details about her relationship with the accused and how she knew him. However, she said that when giving that statement she had simply forgotten about the occasion when she first met the accused. In answer to questions from me, MT said that she did meet the accused at a get-together, but she was not sure whether that happened before or after she climbed into his bed.[47]

    [47] T 172.

18. MT agreed that the first message that had been extracted from her Facebook Messenger account was from the accused to her on 23 April 2019. The accused had sent her a message ‘Hello chick that climbs into bed with strangers. LOL’ to which MT responded, ‘Ha-ha stranger succumb to my climbing into bed’. MT agreed that she referred to the accused as ‘stranger’ because that was the first occasion she had met him.[48] MT again denied that she omitted to mention this to the police because she was trying to distance herself from any sexual interactions with the accused and said, ‘it would have come out anyway’.[49]

    [48] T 173.

    [49] T 173, 30-31.

19. MT agreed that the first time she told police that the first time she met the accused was when she climbed into bed with him was on 31 January 2022.[50]

    [50] T 173-T 174.

20. MT was reminded of her evidence in chief that she was never sexually interested in the accused and never suggested to him that she was. She agreed that it was possible that she kissed the accused on the lips and straddled him with her leg on that first occasion and that if she had done this it would be suggesting on that occasion that she was sexually interested in him.[51]

    [51] T 174.

21. MT was then asked about a series of messages on 24 April 2019. In one message she said to the accused she said ‘thanks for the snuggles’ and he responded ‘LOL. Can’t go wrong with cuddles’ and a smiley face emoji and ‘sorry for kind of rejecting you though’. MT then responded: ‘Ha-ha, thanks for that, I was definitely not in a state of sobriety to make that decision, so I am glad you did’. MT agreed that she sent this message to the accused because she had come onto him sexually in bed and he had rebuffed her.[52] MT then agreed that when she gave her statement to police on 31 January 2022 in which she said ‘I was never interested in him sexually, I never suggested I was’, this was plainly wrong.[53]

    [52] T 175.

    [53] T 177.

22. MT agreed that the first time she mentioned to police that the accused had touched her body when she was asleep was on 31 January 2022.[54] MT agreed that when she gave her first statement to police, she understood she was giving a statement about a serious matter and that it was important to give as much detail as possible. She was given the statement to read, and she thought that she had read the entire statement before signing it to indicate that it was true and correct.[55] She agreed that there was no mention in that statement of the accused touching her breasts, vagina or bottom on any occasions prior to 23 June 2019.[56]

    [54] T 177.

    [55] T 178.

    [56] T 179.

23. MT agreed that she then gave another statement in September 2019 in which she was asked to provide further detail about how and when she met the accused. She read that statement before she signed it and understood in signing it she was affirming it was true and correct. MT agreed that in her statement in September 2019 she did not mention that the accused had touched her breasts, vagina or bottom or that this occurred when she was asleep.[57]

    [57] T 179-T 180.

24. MT agreed that in her statement to police on 31 January 2022 she told police that the accused would ‘try and touch her private parts’ her ‘boobs’ and her ‘vagina’ but she did not tell police that he touched her on the bottom. When asked if she had an independent memory of being touched the by the accused in the way she described on three or four occasions she said the number was a rough guess based on the Facebook messages but that she recalled the touching.[58]

    [58] T 181-T 182.

25. MT agreed that she had known the accused for about two months before the alleged offence and that she continued to sleep in the same bed with him throughout those two months, despite him having touched her on the breasts, vagina and bottom on three or four occasions. MT agreed that, on occasions, she did ask if she could stay, and the accused would also invite her to stay. [59]When asked whether she thought to simply stop sleeping in the accused’s bed after the first time he touched her on the breasts, vagina or bottom she said, ‘apparently not’.[60]

    [59] T 183-T 184.

    [60] T 184, 7-11.

26. MT agreed that in 2019 she did not let people push her around and she was fairly direct and assertive when it came to what she wanted to do or not do. She agreed she would let people know how she felt in any given situation in a fairly direct manner.[61]

    [61] T 184.

27. It was put to MT that if the accused had actually touched her she would not have got back into bed with the accused on subsequent occasions and MT said she disagreed.[62] She agreed that she did not know what day of the week any of the occasions of touching occurred or the circumstances surrounding the touching, for example, whether she had been invited to stay or had invited herself. [63]

    [62] T 184.

    [63] T 185.

28. I asked MT to describe what occurred when she cuddled or ‘snuggled’ with the accused, and she said:

    A…it was sort of like a face to back sort of situation and we’d both swap, you know. It would be an arm maybe around the stomach.

    QWas it ever face to face cuddling.

    AI don’t think so. Maybe, but it was more like a spoon like I mentioned earlier the spooning thing.[64]

    [64] T 185, 32-38.

29. MT was asked if she knew what a ‘big spoon’ and ‘little spoon’ meant, and she said the big spoon was the person behind putting their arms around the person in front. The person in front was the little spoon. She agreed that sometimes she would be the big spoon, and sometimes the accused would be the big spoon. It was put to her that the accused never touched her vagina, breasts or bottom when he was sleeping with her. She disagreed.[65]

    [65] T 186.

30. MT said that in the two months she knew the accused, they became good friends, and they would help each other with personal issues, and he was very caring towards her. MT agreed that the accused helped her through some personal problems she was having with a boy called Seth whom she was assisting with alcohol and violence issues at his home. She agreed that she took him under her wing and this was taking a mental toll on her. MT agreed that she would talk to the accused about how she was feeling, and he would sometimes take her for a drive out to North Beach for her to clear her head.[66] The accused also helped her out when she was struggling financially by counselling her about whether she should work at the Cornucopia hotel and he gave her money from his full-time job at the abattoir to help her with living expenses.[67]

    [66] T 187.

    [67] T 187-T 188.

31. MT agreed that in June 2019 she was having mental health problems and was seeing a psychologist in Adelaide. The accused gave her support and encouragement to seek psychological help and would discuss the appointments with her before and afterwards.[68] MT gave the following evidence:

    [68] T 188-T 189.

    QThat’s exactly what I’m saying, that it just doesn’t make sense that you would let him be that close to you if he was touching you sexually in a way that you didn’t want to be touched.

    AI think that’s how most friendships should be and are in my life.[69]

    [69] T 189, 22-27.

1. In her statement dated 24 September 2019, MT said the following:

   Reign was living at the [T]’s and I would stay there once or twice a week. We would sleep in the same bed but our relationship was not sexual. He would get a bit handsy at times, especially after he had been drinking but I would push him away and he would accept this. There was never any sexual contact between us prior to what I have reported.[70]

   [70] T 192, 9-15.

2. MT said that sexual contact included the touching of her vagina, breasts and bottom.[71] She said ‘handsy’ meant touching on her body with his hands in a sexual way.[72] It was then put to her that her statement to police that there was never any sexual contact was inconsistent with the evidence she had given about the touching of her breasts, bottom and vagina. She responded:

   [71] T 192.

   [72] T 194.

   I was basing it on the consensual sexual contact.[73]

   [73] T 192, line 25.

3. MT was then asked to explain why she gave a statement to police on 31 January 2022 in which she said that ‘there was no prior contact with Dobbs either consensually or non-consensually’.[74] She said did not know what that meant and then said ‘…that’s not the case, so I don’t know how that’s come about. Yeah I’m not sure if that was a miscommunication or not, but, yeah I’m not sure’.[75]

   [74] T 192-T 193.

   [75] T 193, 15-17.

4. MT said there may have been discussions between her and the accused in which he would ask her if she and he were something more than friends but denied telling him that she wanted to be more than friends.[76] I then asked her the following questions:

   [76] T 194.

   QDo you think that Reign was interested in you romantically [MT] during this time.

   AYeah, I mean, I think we probably had a conversation about it but I think we agreed to stay friends.

   QDid you find it flattering that he seemed to be interested in you romantically.

   AI wouldn’t use the word ‘flattering’, no.

   QHow did you feel about that.

   AI think, if anything, I was just happy to have a support person and someone to confide in and vice versa I think, we just, yeah, it was nice to have somebody to talk about the real stuff with as opposed to you know, superficial conversation.

   QWas it a part of your close friendship and his support for you, was part of that spending the night together and cuddling.

   AYeah, I think the physical element of feeling comforted and supported, that was part of it, yeah.[77]

   [77] T 194, 34-38; T 195, 1-13.

5. MT agreed that in May 2019 she exchanged the following messages with the accused:

   MT: You moan louder than I do ha, ha, ha, ha.

   The accused: Yeah, sorry, lol, and moaning is a turn on isn’t it.

   MT: Yeah it is, you’ve got me there. It’s not like I don’t want to but here’s this quote that speaks the truth.[78]

   [78] T 195, 15-29.

6. MT agreed that she attached to that message a Facebook page with a quote, but she could no longer remember what was in the quote.[79] I asked her what she meant when she wrote ‘It is not like I don’t want to’ and she gave this evidence:

   [79] T 195.

   AYeah, like I said, I don’t remember sending that message, I’m not sure, I guess – yeah, maybe I didn’t want to, I don’t know, but, yeah, it doesn’t – it doesn’t ring any bells.

   QWhat does the ‘want to’ relate to ‘it’s not like I don’t want to’, what were you referring to.

   AI’m assuming a sexual relationship or maybe a relationship – I don’t know, I’m not sure, I really don’t know.[80]

   [80] T 196, 7-15.

7. MT said that she supposed what she was saying in those messages was that it was not as if she did not want to be in a relationship with the accused, she just had other things going on.[81]

   [81] T 197.

8. MT was asked whether the messages sent on 26 April 2019 in P3 in which the accused apologised for touching ‘you and stuff last night’ related to the accused cuddling her a bit too enthusiastically to see if something of a romantic nature was there. MT said it was ‘a bit more than enthusiastically’ and that ‘I feel like I was asleep that night’.[82] MT was then reminded that these messages were sent 3 days after she first climbed into bed with the accused, and he rebuffed her. MT then said she was not sure whether she was in fact asleep on this occasion and that she was not sure whether this was an occasion when the accused touched her on the vagina, bottom or breasts.[83]

   [82] T 197, 34, 37.

   [83] T 198.

9. MT was asked about the messages on 17 May 2019 in P4 in which she said, ‘Ah yes, good stuff, your cuddles are nice too, and I’ve noticed if I wear pants, we have no sexy soo-soos, hahah??’ MT agreed that these messages were exchanged four days after she had sent a message to the accused which she conceded might have been her telling him that she was sexually interested in him. However, MT said that this particular message was her saying ‘if I wear pants rather than a T-shirt and underwear to bed, then he’s less likely to touch me inappropriately in my sleep; as opposed to just regular cuddling’.[84] I asked MT again what ‘sexy soo-soos’ was intended to convey and she said she was really not sure.[85] I asked MT what she intended to convey by ending the message with ‘ha ha??’ and she said:

   [84] T 200, 20-23.

   [85] T 200.

   AThat’s, yeah, like I was saying before, if I wear pants, he’s less likely to get handsy, and that was just more so me just asking if that was the case.

   QAnd the use of the ‘haha??’.

   AI think it’s to make it less awkward, and yeah, to be asked the question.[86]

   [86] T 201, 1-7.

10. MT was asked if, a few days prior to the messages on 17 May 2019, she sent the accused a Snapchat video of herself naked and masturbating.[87] She denied doing so. MT was then asked about the following series of Facebook messages on 14 May 2019[88]:

    [87] T 202.

    [88] MT was cross-examined about these Facebook messages but they were not tendered.

    MT: I like your company too. It’s real nice and fun.

    Accused: Yeah, so I’d like to keep hanging out and cuddling if you’re still comfortable with that, but I’d understand if not.

    MT: Nah, we cool. Just as long as you’re not the kind to go bragging to everyone then we’re good.

11. MT said she was not sure what the accused would have to brag about but denied that the messages reflected the fact that the accused was not touching her without her consent in her sleep.[89]

    [89] T 207.

12. MT was then asked about messages in which the accused referred to his break-up with Emily and said, ‘and I could have filled the void with sex a few times (the sister-in-law’s sister, you, the day of our breakup, and Mikayla) but I’m not after that.’[90] MT agreed that the accused was saying that he could have had sex with her on the day of his break-up with Emily which was the first occasion that MT and he met.[91]

    [90] MT was cross-examined about these Facebook messages but they were not tendered.

    [91] T 208.

13. MT was then asked about the following message from the accused to her:

    Yeah, I’ve been naughty in how I touched you but I’m still not trying just to have sex to fill a void. You can trust me to keep my mouth shut. Haven’t even breathed a word about your naughty snap, LOL.[92]

    [92] MT was cross-examined about this Facebook message but it was not tendered.

14. MT was asked to explain the reference to ‘naughty snap’ and she said ‘I – I really don’t think it was me videoing myself masturbating’.[93] She was then pressed about whether she sent a ‘snap’ to the accused:

    [93] T 208, 27-28.

    AI just – I – I don’t know, I don’t think – I just – I don’t remember that happening, I don’t think that – I don’t know. I’m not calling him a liar, I’m not saying it didn’t happen, I just don’t think that was the case. Maybe it was – maybe a boob or something, you know, maybe a breast pic but I don’t think a full video of me masturbating was what was sent.

    HER HONOUR

    QThe message that was just read referred to ‘naughty snap’ and you said maybe it was a boob or something else.

    AYep.

    QDo you have any recollection at all of sending a picture or a video of yourself or any part of your body to Mr Dobbs.

    ANo.

    QIt is possible that you did.

    AI suppose it’s possible. I just – I just – yeah.

    QJust thinking about the word ‘naughty snap’, does that bring back any memories of what it was that Mr Dobbs might have been referring to when he sent you that message.

    ANo.[94]

    [94] T 208, 37-38; T 209, 1-21.

15. MT was reminded of her evidence in chief that she did not recall there being any arrangement for CR and the accused to stay the night at her mother’s home on 23 June 2019. It was put to her that an arrangement had been made before they went out and before consuming any alcohol. MT was then reminded of the fact that she told police on 24 September 2019, ‘We had been at the [T]’s and [CR] and I had arranged earlier to go back to my place to sleep but we were not in a sexual relationship, just friends, but would share a bed’. MT agreed that what she told police was correct and although there was no arrangement for the accused to come back to her mother’s house, there was an arrangement for CR to come back to her mother’s house.[95] MT agreed that CR left his vehicle at her mother’s house before they went out.[96]

    [95] T 209-210.

    [96] T 212.

16. CR was six and a half years younger than her. MT said that CR was less drunk than her on 22 June 2019 and put him around 5 or 6 on the scale of sobriety.[97] MT said that CR was someone who often used cocaine and MDMA and did this on occasion on Friday and Saturday nights. However, she said that on 22 June 2019 she did not see CR take any drugs.[98]

    [97] T 213.

    [98] T 214.

17. MT said that she could walk without assistance when she was back at her mother’s house and did not vomit.[99] She agreed that CR must have been drinking enough to be 5 or 6 on the scale of sobriety but she could not recall what he was drinking. MT agreed that towards the end of the evening she, the accused and CR went to the Cornucopia hotel by taxi to get some takeaway beers. MT said she assumed CR and the accused drank beers back at her mother’s house.[100] She then gave this evidence about what happened the next morning:

    [99]  T 216.

    [100] T 218.

    QI suggest this happened: Reign came into the lounge room where the mattress was, at which stage [CR] had his arms around you. Do you agree or disagree.

    AYep, probably.

    QYou were crying.

    AYes.

    QReign asked you why you were crying.

    AYes.

    QHe seemed concerned, didn’t he, that you were crying.

    AYes.

    QYou said nothing when Reign asked why you were crying, do you agree or disagree.

    AI’m not sure.

    Q[CR] told Reign to fuck off and pointed towards the door.

    AI’m not sure.

    QReign looked confused when [CR] said ‘Fuck off’. Do you know what Reign’s facial expression was.

    ANo.

    QReign left the house without saying anything at all.

    AYeah, I think so.

    …

    QNow, you waited, I suggest, 12 days before reporting this matter to the Kadina Police.

    AYes.

    QYou have never provided, have you, any of the clothes you were wearing to the police.

    ANo, they were washed before.

    QAll of them

    AYes. [101]

    [101] T 219, 6-38.

18. In re-examination, MT said she took 12 days to report the matter to police because she was ‘feeling very overwhelmed, stressed and anxious’ and did not want to go through ‘this process’.[102]

    [102] T 221, 11-14.

19. I permitted a voir dire hearing to be held with respect to an application brought by the accused to exclude certain Facebook messages produced by MT to the police. Ultimately, the application was not pursued because MT was requested to and produced the Facebook messages said to have been missing. The parties agreed that the evidence on the voir dire should be incorporated as evidence on the trial proper. I summarise that evidence below.

20. MT said that she first met the accused in 2019 and had known him for 9 months to a year before the alleged offence. She said they were really good friends. MT said she would communicate with the accused by text message, phone calls, Facebook and Snapchat.[103] She was asked by police to look on her mobile telephone for Snapchat messages, but she said she was unable to find any, because they delete themselves once a person is blocked. MT said she blocked the accused on Snapchat.[104]

    [103] T 63-T 64.

    [104] T 64.

21. Shortly before the alleged offence, MT had her mobile telephone stolen from a hotel. She then used her mother’s mobile telephone until she obtained a new one a month or two afterwards. She was able to access her Facebook messages on her mother’s mobile telephone and her new mobile telephone.[105]

    [105] T 65.

22. During the period that she knew the accused, she would communicate with him via text or Facebook message weekly or every few days. She looked through her mobile telephone for text messages between herself and the accused but could not find any. She said that there would have been text messages on the mobile telephone she borrowed from her mother, but that telephone was stolen six months later.[106]

    [106] T 70-T 71.

23. On 24 September 2019 she provided a screenshot of a Facebook message between herself and the accused to the police.[107] She had shown the police the original message when she was giving her statement at the police station in Kadina. Two days before MT gave evidence, she sent screenshots of more Facebook messages to police.[108] She was asked if there were any other Facebook messages on her mobile telephone on Tuesday apart from the ones that she provided to police. MT gave this evidence:

    [107] T 71.

    [108] T 72-T 73.

    Yes. I was told to send any relevant texts – sorry, Facebook messages to the case and I was told to do from the date that the conversation started to the end point of that conversation.[109]

    [109] T 73, 16-19.

24. In cross-examination, it was put to MT that she was asked by Detective Davies to produce all Facebook messenger messages that she had with the accused as recently as Tuesday of that week. She replied, ‘yeah probably’ and when it was put to her that she did not do that she said, ‘I guess not, no’.[110] I asked MT why she did not do what the police asked her to do, and she replied:

    [110] T 77.

    I think it was a miscommunication. I thought he just meant – yeah, I just thought he meant relevant ones, because – yeah. But yeah, that might have been, yeah, miscommunication, so yeah, I guess I’ll provide them if need be.[111]

    [111] T 77, 14-18.

25. MT maintained that she would not have provided only the messages she thought were relevant if she had known that Detective Davies wanted all messages. MT agreed that between March and June 2019 she was messaging the accused on a daily basis, and she would send dozens of messages to him on any given day and receive as many in return. MT agreed that she provided to police the messages that she decided were relevant.[112]

    [112] T 77-T 78.

26. MT agreed that as a result of the theft of her mobile telephone, all messages and records of phone calls between her and the accused were lost. MT said that she could not recall telling police that she had been using her mother’s mobile telephone and nor could she recall whether she looked at her mother’s mobile telephone for messages between her and the accused. She could not recall if she asked her mother to block the accused’s telephone number on her mobile telephone. She said it was possible that if the accused had messaged or telephone her mother’s mobile telephone those messages would have appeared on that telephone.[113]

    [113] T 83-T 84.

    CR – eyewitness to alleged rape.

27. CR was 20 when he gave evidence. He met MT about four years earlier when he was living at home with his parents at a farming property twenty kilometres out of Kadina. When asked to describe his relationship with MT he said, ‘just friends I suppose, we’d hang out pretty often I suppose’.[114] He said that he would go to her house and hang out there or at the pub or the beach, but it was mostly in a group with other people.[115]

    [114] T 233, 35-36.

    [115] T 233-T 234.

28. CR met the accused around the same time he met MT, late 2017, and they became friends.[116]

    [116] T 234.

29. On 22 June 2019 when CR was 17, he met with MT and a group of friends at the Exchange in Kadina. At this time, he was still a school student in year 11 at Kadina Memorial but doing a school-based apprenticeship so he was working as a farmhand for half of the school week. When he met MT at the Exchange, the accused was also there.[117] He could not recall everyone in the group that night but mentioned the names CM and DYT. He thought there was a group of about five people. At the Exchange Hotel they played pokies, sat out the front and talked.[118] When asked if he drank alcohol he said, ‘not much but probably a little bit, yeah’.[119] He did not remember what he was drinking but said his usual drink was beer. He did not drive to the hotel but could not recall how he got there.[120]

    [117] T 236-237.

    [118] T 237.

    [119] T 238, 3.

    [120] T 238.

30. Prior to arriving at the Exchange hotel, the group had been at MT’s house in Kadina. He said he had probably consumed Captain Morgans rum at MT’s house before going to the hotel. MT was drinking spirits as well and if the accused was there,  he ‘would have’[121] been too. CR said that he was ‘a bit vague on that part of the night’.[122] At the Exchange Hotel, MT and the accused were drinking spirits, but he could not recall what type. CR said they left the Exchange at 11pm or afterwards because ‘we got back to [DYT’s] around midnight.’[123] He went by taxi. When he arrived there, he went to sleep in DYT’s room but was then woken up by DYT ‘to go to [MT]’s house’.[124] DYT told him the taxi was coming and ‘we were going to go to [MT]’s.’[125]I asked CR what DYT said to him and he replied:

    [121] T 239, 33.

    [122] T 239, 23-24.

    [123] T 240, 2-3.

    [124] T 240, 9-10.

    [125] T 240, 20-21.

    I was under the impression we were going to stay at [DYT]’s that night but they woke me up and said that they were going to go to [MT]’s house to continue drinking, so I went with them.[126]

    [126] T 241, 6-9.

31. CR said he got into the taxi with MT and the accused. The taxi then went to the Cornucopia Hotel. CR stayed out the front and talked to the taxi driver while the accused and MT went inside to get more alcohol. CR did not go inside because it was a nightclub, and the security was high.[127]

    [127] T 241.

32. CR was asked to indicate where he was on the scale of sobriety at the time he was at the Cornucopia, and he said probably a 3 or 4. He said MT and the accused were getting pretty drunk at that point, but they were pretty drunk before that. He estimated that MT and the accused were 7 on the scale. [128]

    [128] T 241-T 242.

33. The three of them went to MT’s mother’s house in Wallaroo. They put on music and had a few more drinks. CR said he was drinking beer but also a little bit of Captain Morgans, because MT had bought a bottle.[129] When asked if the alcohol he drank at the house affected him, CR said:

    [129] T 242.

    I was going a lot steadier than the other two because I was trying to look after them. They were getting pretty, pretty drunk, so I was slowing up quite a lot.[130]

    [130] T 242, 34-35.

34. CR said he drank for about half an hour to forty minutes and the accused drank for another hour after that. At this stage, MT was ‘getting nearly a 10’ on the scale of sobriety and she ‘was falling over and stumbling around, very drunk’.[131] Both MT and the accused only stopped drinking before they went to sleep. They all went to bed around 2.00am. CR said he started drinking at 8.00pm the evening before.[132]

    [131] T 243, 11-12, 19-20.

    [132] T 243.

35. CR said that ‘we decided that we were going to sleep just in the mattress in the lounge room. Reign asked me to sleep in the front room but that was about it’.[133] CR said that when the accused asked him sleep in the front room he said no, because ‘I didn’t really want to leave him alone with her’.[134]

    [133] T 243, 36-38.

    [134] T 244, 9.

1. CR said that when he went to bed he was affected by alcohol ‘to a degree’ and he was wearing shorts and jocks but did not think he was wearing anything on top. MT was wearing a bra and G-string.[135] She took her clothes off down to her bra and G-string in the loungeroom before she got into the bed. He could not recall what MT was wearing the evening before. The accused was still in his shirt and shorts.[136]

   [135] T 246.

   [136] T 247.

2. The three of them lay down on the queen mattress, under the sheets and doona. CR was on the left near the shoes that can be seen in photo 2275 on page 7 of P1. MT was in the middle and the accused on the right. CR said at one point he was cuddling MT.[137] He said he had her arm over her, but she was not touching him in any way when he was embracing her. The kitchen light was on, and it was fairly bright, and it illuminated the area they were sleeping in. The music was not on.[138]

   [137] T 248.

   [138] T 249.

3. CR said when they all got into bed he did not speak with MT because she was ‘pretty well out of it’[139] and she just went to sleep. He did not think she was awake when he was cuddling her.[140]

   [139] T 249, 33.

   [140] T 249.

4. At some point CR said he could feel a hand next to him while MT was facing the accused and a ‘hand on her butt’.[141] He lifted the cover and looked and saw it was the accused’s hand and he said, ‘Stop that. She is asleep’ and the accused stopped. He said it was her right butt cheek.[142] CR described the accused ‘playing with it, squeezing it a bit’ but said it was hard to describe.[143] He assumed the accused was facing her because it was his left hand that CR could see. CR went back to sleep.[144] Not long afterwards he woke up to the feeling of movement and lifted the blanket. CR described what he could see:

   [141] T 250, 5.

   [142] T 251, 8.

   [143] T 251, 11-12.

   [144] T 250.

   A…[MT] was on her back and Reign was propped up on his right elbow with his left hand in [MT]’s groin area.

   QAnd what happened next.

   AI could see him entering her with his middle finger.

   QAnd I need to ask you to be specific. What did you see, if anything.

   AI saw Reign fingering [MT].

   QAnd when you say fingering, where was he putting her finger.

   AIn her vagina.

   HER HONOUR

   QYou said she was wearing a G-string and bra on when she got into bed.

   AYes.

   QWas she still wearing the G-string when you saw this.

   AYes.

   QSo in terms of Mr Dobbs’ hand, could you just describe from your vantage point where it was, which way it was facing and what you could see of his hand.

   AIt’s hard to describe. I don’t know how to describe that.

   HER HONOUR: Witness puts hand up, indicates middle finger extended and lower than all other fingers on his hand.

   MR KANE: Yes.

   HER HONOUR

   QAnd from your vantage point, when you were looking at his hand, which part of his hand was closest to you.

   AI’d say his thumb.

   QAnd you said she had her G-string on.

   AYes, it was pushed to the side.

   XN

   QAnd what did you observe, if anything, Mr Dobbs doing with his left hand.

   AThere was the fingering motion.

   QAnd can you describe what that involved.

   APushing his finger in and out of her vagina.

   QAnd from your observation, when this was occurring, was [MT] awake or asleep.

   AAsleep.

   HER HONOUR

   QCould you see her vagina.

   AYes.

   QI’m sorry to ask you the detail but what of her vagina could you see,

   AI just seen the left side of her vagina because the right side was still sort of covered with the underwear.

   QSo her underwear was pushed to which side.

   ATo the right side.

   QAnd you said she was on her back.

   AYes.

   QAnd were you sitting up, or were you lying down, or what was your position.

   AOnce I had lifted the covers I was propped up but not sitting up.

   XN

   QWhat did you observe next.

   AI observed Reign taking his finger out of [MT]’s vagina, licking it with his tongue and then putting it back in.

   HER HONOUR

   QWhen he put it back in where was her underwear.

   AIn the same position.[145]

   [145] T 252, 6-38; T 253, 1-33.

5. CR asked the accused what he was doing and told him to stop. The accused replied, ‘I know I shouldn’t’ but continued.[146] CR said he then got up and separated them, by pulling her away to his left and pushing him away to his right. MT did not wake up. CR told the accused to sleep somewhere else. The accused got onto the couch just above the head of the mattress and CR told him he could not sleep there and the accused then went to sleep in the front room.[147]

   [146] T 253.

   [147] T 254.

6. CR stayed in the bed with MT and held her after that ‘in a similar position to the cuddling the first time’.[148] He and MT woke up around 8.00 or 9.00am the next morning. They were not in the cuddling position when they woke up. The accused came down the hallway and walked into the room they were in. He said to CR, ‘Did you tell her? I was going to tell her?’. The accused left shortly after that. CR and MT went back to DYT’s house by taxi because her car was there.[149]

   [148] T 254, 23.

   [149] T 255.

7. In cross-examination, it was suggested to CR that neither he, nor MT nor the accused went to MT’s house for drinks before going out to the hotel on 22 June 2019. CR said he would not disagree because ‘the night is a bit hazy in my memory, yes’.[150] CR then agreed with the suggestion that the first place the group all hung out together was at DYT’s house in Kadina.[151]

   [150] T 256, 38; T257,1.

   [151] T 257.

8. CR agreed that he could have been drinking Jack Daniels and coke and that it was possible he had 8 cans whilst at DYT’s house in Kadina in the space of an hour. CR said he was certain that they then went to the Exchange hotel in Kadina, and this was a different hotel from the Kadina hotel.[152] CR agreed that in his statement dated 18 July 2019, he told police that they went to the Kadina hotel. However, CR said he still believed it was the Exchange Hotel and he did not know why he told police it was the Kadina hotel.[153]

   [152] T 257.

   [153] T 258.

9. CR agreed that the accused was playing pokies and won around $300. CR said he and the accused were drinking pints of beer at the hotel. He estimated he had four Carlton Dry full-strength pints.[154] CR said he did not recall the accused buying a round of Jager bombs but that did not sound ‘too farfetched’[155] but he denied drinking any Jager bombs.

   [154] T 259.

   [155] T 260, 14.

10. By the time CR left the Exchange Hotel at 11.00pm or after that he had consumed eight cans of Jack Daniels and coke and four pints of full-strength beer. After this they went to DYT’s house in Kadina, and he assumed they went by taxi but it was possible that they walked there.[156]

    [156] T 260-T 261.

11. CR agreed that he had never told police in any of his statements that he went to sleep in DYT’s room in the house at Kadina. CR disagreed that he passed out in the bed but said he was probably playing X-box and went to sleep. He said he was sleeping in the gaming chair. He denied omitting this information from his police statements to downplay how intoxicated he was and said that he did not know why he did not tell police this.[157]

    [157] T 261-T 262.

12. I asked CR whether his earlier estimate that he was 3 or 4 on the scale of sobriety was accurate given his admitted drinking history and he said, ‘well at that part of the night it probably was higher than that but towards the end of the night it would have been around a three or four’.[158] The end of the night was when they went to MT’s house.[159]

    [158] T 262, 21-23.

    [159] T 262.

13. CR agreed that he did not go into the Cornucopia because he was 17. He said that the accused and MT bought a box of Carlton Dry beer and a bottle of Captain Morgan.[160] CR said that about 15-20 minutes after he woke up at DYT’s house, the taxi arrived and then he waited about 20 minutes at the Cornucopia before going to MT’s house. He agreed that by the time he arrived at MT’s house he was not going to be any less intoxicated than when he left DYT’s house. CR said that they arrived at MT’s house around midnight.[161]

    [160] T 262.

    [161] T 263-T 264.

14. At MT’s house he drank beer and Captain Morgan but did not know how much he had consumed. CR denied drinking as much as 5 or 6 beers and 5 or 6 Captain Morgans. He said that the amount of alcohol he drank that night was ‘probably about the usual’ for a Saturday night.[162] CR said he had not taken any drugs on the night of 22 June 2019.[163]

    [162] T 264.

    [163] T 265-T 266.

15. CR said the blanket on the bed was fairly thick and similar to the one in photograph 2275 of P1.[164] CR was asked if he was sure that he went to sleep with the kitchen light on and he said ‘fairly sure’ and then explained ‘I could see pretty well, so I’m assuming that it was still on’.[165] CR agreed that if the light had been on the couch would have been in the shade of the kitchen light.[166]

    [164] T 267.

    [165] T 268, 24, 30-31.

    [166] T 269.

16. CR disagreed with the suggestion that he could not see clearly what was going on underneath the blanket when he lifted it up. CR agreed that he told police in his statement dated 18 July 2019 ‘I couldn’t see what [MT] was wearing because she was under the covers’.[167] CR agreed that this was correct. CR agreed that he never told police she was wearing a G-string and a bra. CR agreed that in his third statement to police dated 14 March 2020 he said for the first time that MT was wearing a G-string but did not say that she was wearing a bra. CR agreed that at a proofing at the DPP on 7 July 2020 he said MT was wearing a top and a G-string. CR then agreed that the statement that MT was wearing a bra and G-string was false and it was in fact a top and a G-string.[168]

    [167] T 269, 25-26.

    [168] T 270-T 271.

17. CR agreed that in his first statement to police he did not say that the light was on in the kitchen or that he could see that MT was wearing a G-string. He agreed that it was not until March 2020 and then July 2020 that he said for the first time that the light was on, and she was wearing a G-string.[169]

    [169] T 271.

18. When asked whether the reason he did not mention the G-string in his first statement was because he had told police that he could not see what MT was wearing because she was under the covers, he said ‘okay’.[170] CR agreed that he told police in his first statement:

    [170] T 273, 7.

    I saw his hand on her vagina, and there was lots of fingering movement happening. He was using his left hand to finger her, then he licked his middle finger and started fingering her again. I saw his hand on her vagina and there was lots of fingering movement happening. She still had her knickers on, and his hand was under her knickers. I lifted up the blanket and saw him fingering [MT]. By ‘fingering her’ I mean putting his finger in her vagina.[171]

    [171] T 274.

19. I asked CR if he could actually see the accused’s finger going into MT’s vagina or whether he concluded that was what had happened because of what he could see and he replied, ‘I could see his finger disappear, so yes’. [172] CR could not recall anything about the G-string other than it was a G-string.[173]

    [172] T 274, 30.

    [173] T 274-T 275.

20. CR said he saw MT get undressed and get into bed but was not paying a whole lot of attention to this. He did not recall what clothing she had on the bottom half of her body. He agreed that he never told police he saw her getting undressed before she got into bed.[174] CR also agreed that it was not until March 2020 that he told police that the accused’s left hand was not under MT’s underwear and the underwear had been pushed to the side of MT’s vagina. He then said that he was wrong in his first statement when he said that the accused’s hand was under MT’s knickers.[175] He denied that his memory had improved over time but said ‘there was more attention to detail after he had asked me more questions’.[176] I asked him what he was intending to convey to police when he said that the accused’s hand was under MT’s knickers and he replied ‘No, I don’t know how to explain that’[177] and said that the term ‘knickers’ was a general term for all forms of underwear and includes a G-string.[178]

    [174] T 275.

    [175] T 277.

    [176] T 277, 15-16.

    [177] T 278, 3.

    [178] T 278.

21. CR agreed that he told police that he was wearing a shorts and T-shirt when he went to sleep and said that his evidence that he was not wearing a top was wrong.[179]

    [179] T 278.

22. CR said that when he woke up he was facing away from MT towards the kitchen. MT was facing the accused and the accused was facing her. He said that he was certain these were the correct body positions. CR agreed that in his first statement to police he said ‘I wasn’t sleeping very well and kept waking up because I could feel something moving. I was spooning [MT], so my front against her back and Reign kept trying to touch her bum and I could feel this. I woke up and said to Reign that [MT] was asleep, just leave her alone’.[180] CR agreed that what he told police was very different from his evidence and said his sworn evidence was wrong. He agreed that MT’s bottom was nestled in against his chest and the two of them were facing in the same direction.[181] CR was then asked whether the accused’s hands were between his groin area and her bottom, and he said yes. He denied making his evidence up as he went along and said he was trying to give answers to the best of his memory about something that happened two years ago.[182]

    [180] T 279, 16-22.

    [181] T 279-T 280.

    [182] T 280.

23. CR denied that there was any pre-existing arrangement on 22 June 2019 for him to stay the night at MT’s house.[183] CR agreed that he had driven his car to MT’s house in Wallaroo so that he could drive it home the next day. CR then agreed that he did plan and expect to stay at MT’s house that night. However, he denied that he planned to stay there just with MT or that this was an opportunity for him to stay alone with her after a night out drinking. However, CR agreed that there was no plan for the accused to stay at the house at the time that CR drove his car there.[184]

    [183] T 281.

    [184] T 282.

24. CR was asked if he was annoyed that the accused came back to MT’s house with them in the taxi and he said, ‘no not specifically. I was more annoyed that I had to go. I was pretty well happy to stay at [DYT]’s’.[185]

    [185] T 282, 36-37.

25. CR said that he had slept alone on a mattress with MT twice or more at MT’s mother’s partner’s house in Kadina. CR agreed that he found MT sexually attractive. CR said that he had not had sex with her prior to 22 June 2019 and had not kissed her.[186] He said he kissed her and had sexual intercourse with her after this night, sometime in 2020.[187] CR said that he found her sexually attractive on 22 June 2019.[188]

    [186] T 283-T 284.

    [187] This cross-examination occurred without defence counsel making an application pursuant to s 34L of the Evidence Act for permission to cross-examine CR regarding the sexual activities of MT with a person other than the accused. Defence counsel erroneously believed that an application for permission was not required because the cross-examination was of a witness other than the complainant. Prosecuting counsel was on notice of the proposed cross-examination and formed the same view. I determined to hear the application and argument at the conclusion of the trial and then rule on the application indicating to counsel that if I did not grant permission, I would disregard the evidence given in breach of s 34L. I did so and granted permission for the reasons that I set out later in this judgment.

    [188] T 288.

26. CR was asked why he did not ‘kick’ the accused out of bed immediately upon seeing him touch MT’s bottom. He said that he thought the accused would stop and go back to sleep. CR agreed that his evidence was that it was on the second occasion of touching that he yelled loudly at the accused and physically pulled MT and the accused apart. CR maintained that MT slept through this.[189]

    [189] T 288-T 290.

27. CR disagreed with the suggestion that MT was wearing T-shirt, bra and long trousers with a belt in bed.[190] CR disagreed with the suggestion that MT was not so drunk that she was falling down and needed help to get back up when they got back to her house. CR disagreed with the suggestion that the lighting conditions were such that he could not see anything that was happening under the blanket when he lifted it up to look.[191]

    [190] T 289.

    [191] T 290.

28. CR agreed that when the three of them first went to sleep that night he was spooning MT and she in turn was spooning the accused. It was put to CR that the only conversation he had with the accused was when he woke up and MT was lying on her back with the accused lying on his right side and the accused had his hand on MT’s thigh.[192] He disagreed. CR agreed that he told the accused to ‘fuck off’ in a loud and aggressive tone. CR did not recall the accused standing up and stumbling and almost falling over. CR said he assumed the accused slept in the front room, but he did not actually see him in there.[193]

    [192] T 291.

    [193] T 293.

29. It was put to CR that he did not see the accused touch MT on her vagina at all or lick his finger and say, ‘I know I shouldn’t’. CR disagreed. It was put to CR that he did not jump in between MT and the accused. He disagreed.[194]

    [194] T 294.

30. CR agreed that the accused had come into the lounge room to get his jacket after he and MT had woken up. By this time, CR had told MT some things that he thought he saw the previous night. At the time that the accused came into the lounge room MT was crying and was in CR’s arms.[195] CR disputed that the accused asked MT why she was crying, and she did not respond. CR said he told the accused to ‘grab your jacket and go’.[196]

    [195] T 294.

    [196] T 295.

31. It was put to CR that he did not see the accused insert his finger into MT’s vagina but was motivated to say that he did in order to push the accused out of the picture allowing him to form a relationship with MT. CR disagreed and asked what he would have to gain from doing that. [197]

    [197] T 300.

32. I asked CR whether he believed that the accused was also interested or attracted to MT, and he said yes. He said he had this belief before the incident on 23 June 2019.[198]

    [198] T 300.

    Detective Brevet Sergeant Davies

33. The evidence that Detective Davies gave on the voir dire was incorporated as evidence in the trial proper. Detective Davies confirmed that two days before giving evidence he was requested by the DPP to obtain text messages and Facebook messages between MT and the accused. Detective Davies then rang MT and asked her to provide him with all of the messages that she had between herself and the accused.[199] He did not give a date range but asked for all of them.[200]

    [199] T 87-T 88.

    [200] T 88.

34. In cross-examination on the voir dire, Detective Davies confirmed that the request for disclosure sent to him by a solicitor from the DPP was for a complete copy of all Facebook Messenger and Snapchat communications between MT and the accused.[201] When Detective Davies asked MT for all of the Facebook messages between her and the accused, she said she would have a look and see if she could find them. MT then sent an email to Detective Davies attaching screenshots of the conversations on Facebook messenger with the accused. In that email, MT said she was producing all of the Facebook messages between herself and the accused. She did not tell him she had just selected the relevant messages. Detective Davies accepted at face value that she had complied with the request.[202]

    [201] T 89.

    [202] T 89.

35. Detective Davies said that he first became aware of the alleged offence on 4 July 2019. On 29 July 2019, the accused voluntarily attended a prearranged interview at the Kadina Police Station but declined, on legal advice, to answer any questions.[203]

    [203] T 301.

1. Mr Dawes argued that the Facebook message on 23 June 2019 (P2) could not be used as an admission of guilt or a consciousness of guilt. No evidence was led of the conversation between CR and the accused and accordingly the context in which the message is sent is unclear. Mr Dawes said it was inherently unlikely that MT had slept through CR forcibly separating her and the accused and ordering the accused out of the room.

2. Finally, Mr Dawes said that the unchallenged evidence of good character was relevant to the likelihood of the accused having committed the offence.

   Findings on undisputed or unchallenged evidence

3. The accused and MT became good friends in 2019 and over a two-month period between April and June 2019, they would often share a bed together. The accused and CR were friends and part of a friendship group that included DAT and DYT. The accused moved into the house occupied by DAT and DYT in April 2019.

4. The accused and MT would regularly communicate via telephone, text messages and Facebook messages. Some of the messages exchanged between the accused and MT appear in P2, P3 and P4. Any time difference in the messages appearing in P2, P3 and P4 is explicable by reference to the location of MT when she downloaded those messages for police.[214]Detective Davies asked MT to provide to him all messages between herself and the accused two days before the voir dire commenced. MT did not provide all of the messages but provided a selection of those that she thought were relevant.

   [214] P5 and P6 explain this in more detail.

5. The first occasion that MT met the accused was when she got into his bed at [T]’s house and he was asleep in it.

6. The accused, MT and CR had been drinking substantial amounts of alcohol and were significantly intoxicated in the late hours of 22 June 2019 and into the early hours of 23 June 2019. All three of them shared a mattress bed in the loungeroom of MT’s mother’s house at 8 Moonta Street Wallaroo. The photographs of the house at 8 Moonta Street, Wallaroo (P1) depict the layout of and the furniture that was in the house as at 23 June 2019.

7. Following a conversation with CR on the morning of 23 June 2019, MT made a report to police on 4 July 2019. The accused was interviewed by police but on legal advice declined to answer questions and he was charged with rape.

8. MT did not see the accused after he left her mother’s house on 23 June 2019 and after receiving the Facebook message in P2 she blocked him from Facebook. As a result no further messages or communications could be received by MT from the accused on her Facebook page.

9. The accused has no prior convictions and is a person of good character.

10. As a consequence of the delay in reporting the matter to police, there was no utility in conducting a forensic examination of MT or the accused or seizing her underwear. DAT and DYT declined to provide statements to the police.

    Evaluation and assessment of evidence of MT and CR

11. As observed earlier, MT did not give evidence of any sexual interaction with the accused on 22 or 23 June 2019. She does not allege that the accused raped her.

12. The prosecution case depends upon the evidence of CR. However, MT’s evidence that the accused had touched her in a sexual manner on earlier occasions without her consent is relied upon by the prosecution as probative of the improbability of CR independently concocting or imagining an account of the accused touching MT with a high degree of similarity of detail to the account given by MT of the prior occasions the accused had touched her. It is also relied upon as circumstantially increasing the probability that the accused knew or was recklessly indifferent as to whether MT was consenting on the occasion of the charged offence.

13. MT’s evidence that the accused touched her on the breast, bottom or vaginal area on 3 or 4 occasions when she was asleep for which he would apologise the next day and her evidence she never touched the accused in a sexual way I found to be unconvincing. It was inconsistent with the content of the Facebook messages in P3 and P4 and other messages that were put to her in cross-examination. Prior inconsistent statements on this topic were proved.

14. I formed the impression that in evidence in chief and in her statements to police, MT sought to paint a picture of her relationship with the accused as being one in which the sexual interest was one way. When confronted with Facebook messages sent by her to the accused with an obvious sexual overtone, some of which used words whose meaning was known to her but not readily apparent to an outside observer, MT’s evidence that she was not sure what she intended to convey or that she was trying to prevent unwanted touching whilst asleep lacked credibility.

15. When asked about messages where she referred to the accused not being the kind of person to go bragging to everyone, where she said, ‘it’s not like I don’t want to’ and the message from the accused that he would not breathe a word about her ‘naughty snap’, MT said she was not sure or could not remember to what these messages referred. I formed the view that MT was being less than candid in her evidence about the meaning behind the messages exchanged between her and the accused. I find it inherently unlikely that MT would not remember the nature of the ‘naughty snap’ she sent to the accused. Further, MT’s admission that she may have sent the accused a picture of her breast but could not recall doing so did not sit comfortably with her evidence that she knew the accused was interested in her romantically, but they had agreed to remain friends.

16. Many of these messages were not disclosed by MT to Detective Davies despite his request to provide all Facebook messages between herself and the accused. I prefer the evidence of Detective Davies over that of MT on the topic of the framing of the request for the Facebook messages. Detective Davies was asked by a DPP solicitor to obtain a copy of all Facebook and Snapchat communications between MT and the accused and he gave evidence that this is what he asked MT to produce. He said he received an email from MT in which she said she was producing all of the Facebook messages between her and the accused. She did not do so. I find that MT selected only those messages that she believed were relevant and provided those to Detective Davies. I find that she did not disclose all of the messages because some of the other messages were suggestive of a sexual interest in the accused. The messages not initially disclosed by MT were important because they provided relevant additional context against which her evidence regarding her lack of romantic or sexual interest in the accused could be evaluated.

17. P3 does contain a message in which the accused apologised for touching MT ‘and stuff last night’ when it was ‘obvious you weren’t wanting to do anything’. This message relates to an occasion 3 days after MT slept in a bed with the accused and admitted in evidence that she made a sexual advance towards the accused, and he rebuffed her. Further, MT conceded that she was not certain that this was an occasion when the accused touched her on the vagina, bottom or breasts.

18. I infer from the Facebook message in which the accused said he could have had sex with MT on that occasion that he believed she wanted to have sexual intercourse with him at that time. I infer and find from MT’s message in reply to the accused’s apology, ‘I figured I apologised to you and was waiting for the same ya know’ that she was apologising to him for her sexual advance.

19. MT’s admission that she made a sexual advance to the accused is inconsistent with her statement to police on 31 January 2020 that she was never interested in the accused sexually and had never suggested she was.

20. MT gave two statements to police in which she made no mention of unwanted sexual touching on her vagina, breasts or bottom by the accused whilst asleep. When she did say this to police in her statement of 31 January 2022 she did not refer to being touched on the bottom. MT was unable to explain why she told police on 31 January 2022 that ‘there was no prior contact with Dobbs either consensually or non-consensually’ when her evidence was that there was non-consensual sexual touching by the accused.

21. I consider it inherently unlikely that if the accused was touching her sexually without her consent on multiple occasions, MT would have continued to share a bed with him.

22. I have significant reservations regarding the credibility and reliability of MT’s evidence that the accused touched her on her vagina, bottom or breasts whilst she was asleep or otherwise without her consent and am not prepared to accept her evidence on this topic. I infer and find that during the period that the accused and MT shared a bed on a regular basis (between April and June 2019) on some occasions there was a degree of mutual physical interaction that had a sexual overtone or involved sexual touching by the accused short of penetration. I find that the relationship between MT and the accused went beyond a platonic friendship and that there was an understanding between MT and the accused that they had a close friendship which included physical touching whilst sharing a bed, with a recognition by each that sometimes this could lead to sexual touching, but the boundaries of that touching were not clear and there were occasions when both MT and the accused apologised to each other when one of them signalled that an advance or touch was unwelcome.

23. I infer and find from the Facebook messages exchanged between MT and the accused that MT did not want others to know of the physical side of their relationship or that it involved sexual touching or that she had sent him an intimate image of herself. I find that she had communicated this wish to the accused.

24. It follows from my assessment of MT’s evidence on the topic of her previous sexual encounters with the accused that it does not have the permissible use for which it was admitted pursuant to my ruling on the voir dire. It is, however, relevant to the relationship between the accused and MT and the inferences that can be drawn regarding the accused’s state of mind on 22 and 23 June 2019.

25. In order to convict the accused, I must be satisfied beyond reasonable doubt that CR’s account of the accused’s conduct whilst sharing a bed with CR and MT was both credible and reliable. In assessing CR’s evidence of what occurred after the three of them arrived at MT’s mother’s house, I have taken into account my finding that he was significantly intoxicated and that this is likely to have affected his recall and perception of relevant events. I formed the view that CR was downplaying his state of intoxication when giving evidence and do not accept his evidence that he was drinking less and more steadily than MT and the accused because he was trying to look after them.

26. A number of prior inconsistent statements by CR to police were proved in evidence. His evidence also conflicted with that of MT on important topics. For the reasons that follow, the effect of intoxication upon CR’s recall, the conflicting testimony and the proved prior inconsistent statements have led me to entertain doubts regarding the reliability of CR’s evidence on crucial matters.

27. CR’s evidence conflicted with MT’s evidence on the following topics:

    ·The place he met MT, the accused and others.

    ·The place from which CR, the accused and MT left before catching a taxi to MT’s mother’s house.

    ·Whether MT, CR and the accused went back to [T]’s house where CR fell asleep before going to MT’s mother’s house.

    ·The clothes MT was wearing when sleeping with CR and the accused on the mattress in her mother’s lounge room.

    ·Whether there was an arrangement in place for CR to come back to MT’s mother’s place and to sleep in the same bed.

    ·What the accused said on 23 June 2019, when the accused came into the lounge room.

28. At 1626 hours on 22 June 2019, the accused messaged MT ‘[CR]’s coming here soon so I’ll talk to him and see what he’s doing anyway’. MT messaged the accused ‘Yeah I’ll be there soon’.[215] I infer and find that MT and CR met at [T]’s house and they, together with others, then went to the Angler’s Inn hotel. I reject CR’s evidence that they all met for drinks at MT’s mother’s house.

    [215] Exhibit P2.

29. It was not disputed that CR’s vehicle was at MT’s mother’s house on 22 and 23 June 2019. I find that CR left his vehicle there some time on 22 June 2019 because there was an arrangement for him to stay the night and that he and MT expected to sleep in the same bed. I find that CR did not expect that the accused would also stay the night.

30. I am not prepared to accept CR’s evidence that he, the accused and MT went back to [T]’s house where he slept until being woken up to catch a taxi to MT’s house for the following reasons: CR had left his vehicle at MT’s house in the expectation of staying the night there; MT gave evidence, which I accept, that after going to the Cornucopia to purchase more alcohol the three of them caught a taxi to MT’s mother’s house and CR was unable to explain why he omitted this detail from his statements to police.

31. I find that CR was sexually attracted to MT prior to and on 22 and 23 June 2019 and believed that the accused was also interested in and attracted to MT. I accept CR’s evidence that the accused asked him to sleep in the front room and that he said no. I infer and find that CR wanted to sleep in the same bed as MT because he was sexually attracted to her.

32. I am not prepared to accept CR’s evidence regarding the clothing MT was wearing when she got into bed with him and the accused or his evidence that she undressed in front of him. MT gave evidence that she when she woke up, she thought she was wearing the clothes she had on the night before. Given her state of intoxication, and the fact she was sharing a bed with the accused and CR, it is plausible that she left her clothing on.

33. A number of prior inconsistent statements by CR on the topic of MT’s clothing were proved. In his first statement, less than a month after the alleged offence, CR told police that he could not see what MT was wearing because she was under the covers. CR did not tell police that MT had undressed in front of him. CR did not tell police at any time that MT was wearing a G-string and a bra when she got into bed. CR agreed that he had said in a proofing on 7 July 2020 that MT was wearing a top and G-string and then said his evidence that she was wearing a bra and a G-string was wrong. In his first statement, CR told police that the accused’s hand was under MT’s underwear when he was ‘fingering her’. However, in his sworn evidence, CR said MT’s G-string was pushed to one side. In light of these proved prior inconsistent statements I have doubts regarding the accuracy of CR’s recollection of the clothing worn by MT.

34. CR gave detailed evidence of seeing the accused’s left hand on MT’s right buttock and said the accused was squeezing or playing with it. He admitted that in his first statement to police he said he was spooning MT and that the accused kept ‘trying’ to touch her bottom and that he could feel this. He admitted that this was inconsistent with his sworn evidence and that his sworn evidence was wrong. He then said that the accused’s hands were between his groin area and MT’s bottom. I am troubled by CR’s preparedness to give detailed evidence of the manner in which the accused touched MT on her bottom only to readily concede, when confronted with a prior inconsistent statement, that he was wrong.

35. CR said he had not shared a bed with the accused and MT previously. He had shared a bed with MT once or twice before 23 June 2019. I prefer CR’s evidence over that of MT on this topic. The Facebook messages make no mention of any occasion upon which MT, the accused and CR shared a bed. The evidence of CR that the accused asked him to sleep in another room on 23 June 2019 was not challenged and I accept that the accused said this. I find that this was the first occasion upon which the three of them shared a bed.

36. I find that although CR believed that the accused was attracted to MT, he was unaware of the way in which they interacted with each other whilst sharing a bed. In other words, CR was unaware of the fact that their relationship involved physical interaction when in bed together, including cuddling, and sexual touching or advances and the exchange of messages with a sexual innuendo or undertone. 

37. CR said that MT was asleep at the time that the accused was ‘fingering’ her. He was not asked, and nor did he provide, an explanation for why he believed MT was asleep. Assuming his evidence on this topic is accepted, his belief may have been sourced in the fact that he could see MT’s eyes were closed or in her lack of reaction to the accused’s actions or both, but there is simply no evidence from which a finding can be made one way or the other. If the latter is a reasonable possibility, that assumes some importance in any assessment of the accused’s state of mind vis-à-vis consent.

38. CR was not challenged on his evidence that he told the accused to ‘fuck off’ in a loud and aggressive tone and that the accused then left the lounge room and slept elsewhere. I infer and find that CR did so because he did not want the accused to remain in the bed with him and MT. CR’s conduct towards the accused is consistent with him having observed the accused behaving towards MT in a way that CR found objectionable, and which made him angry. Given CR’s sexual attraction to MT, and his belief that the accused was attracted to MT, it is reasonably possible that his anger was borne of jealousy.

    Post offence conduct

39. In evaluating CR’s evidence that the accused was inserting his middle finger into MT’s vagina, I must also have regard to the Facebook message from the accused to MT on the morning of 23 June 2019. This was relied upon by the prosecution as post-offence conduct amounting to an admission of guilt or evidencing a consciousness of guilt.

40. Post offence conduct is a species of circumstantial evidence. Whether the Facebook message in P2 demonstrates a consciousness of relevant wrongful conduct amounting to an implied admission of guilt will depend on the terms of the message, the circumstances in which it is made, the nature of the offence charged and the other evidence in the case.[216] The question of whether the message can constitute proof of a consciousness of guilt of the crime charged is overwhelmingly one of context.[217]

    [216] Ciantar (2006) 16 VR 26, 40.

    [217] Butler [2011] VSCA 417, [134].

41. No evidence was led regarding the precise content of any conversation between CR and MT the following morning. However, CR agreed in cross-examination that he had told MT ‘some things’ that he thought he saw the previous night. I infer and find that whatever it was that CR told MT caused her to become very distressed and she was crying when the accused came into the lounge room.

42. The Facebook message of 23 June 2019 is expressed in an extremely apologetic tone. The accused says that he did not expect MT to forgive him, and he was unable to explain why he ‘did what [he] did’. He expressed hatred for himself but also said that MT did not ‘deserve that shit’. I infer and find that this message relates to the events that occurred when CR told the accused to ‘fuck off’. It is clearly an acknowledgment of conduct towards MT for which the accused is deeply sorry.

43. There is no evidence from which I could infer that CR had a conversation with the accused in which he told the accused that he had seen him inserting his finger into MT’s vagina. In other words, there is no evidence that the allegation of digital rape was put to the accused such that an available inference is that his message was responsive to that allegation.

44. The context in which the message is sent is important. It comes after the accused has seen MT distressed and crying and in CR’s arms. It is open to infer, and I find that the accused believed that CR had said something to MT about the accused’s conduct which she found extremely distressing.

1. I am unable to exclude the reasonable possibility arising on the evidence that in the Facebook message on 23 June 2019 the accused was apologising for touching MT in front of CR in an intimate or sexual way falling short of the offence charged, which he knew CR had observed and then reported to MT causing her great distress. I am unable to exclude the reasonable possibility that the tone and content of the apology was influenced by the accused’s concern at the distress and upset that MT was displaying on the morning of 23 June 2019 rather than representing an admission that he had sexual intercourse with MT without her consent. In other words, I am not able to find that the post-offence conduct constituted by the sending of the Facebook message in P2 is an admission of guilt of the offence charged.

2. Accordingly, the Facebook message in P2 does not provide independent support CR’s account of digital penetration whilst MT was asleep. It is however evidence which tends against a finding that CR has fabricated an account that the accused behaved in what he considered to be an inappropriate way towards MT.

   Conclusion

3. The significant reservations I entertain regarding the accuracy and reliability of CR’s evidence on important matters, my findings on his state of intoxication, the evidence of the accused’s good character and my findings regarding the nature of the relationship between MT and the accused, leave me with a reasonable doubt about whether the accused inserted his finger into MT’s vagina or labia majora and whether MT was asleep at the relevant time and if so, whether the accused knew or was recklessly indifferent as to the fact that MT was asleep and therefore could not consent.

   Verdict

4. I find the accused not guilty of the charge of rape.

5. Although I am of the view that the accused probably touched MT on or near her genital area, for the reasons set out above, I cannot be satisfied beyond reasonable doubt that the elements of the alternative offence have been proved. I find the accused not guilty of the alternative charge of indecent assault.