R v Doolan - [2009] SADC 115

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DOOLAN
Criminal Trial by Judge Alone
[2009] SADC 115
Reasons for the Verdict of His Honour Judge Clayton
28 October 2009
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Defendant charged with two counts of rape.
Proceeding pursuant to Part 8A of Criminal Law Consolidation Act 1935. Finding that defendant is mentally unfit to stand trial.
Verdict: Objective elements of each offence established. Declaration that the defendant is liable to supervision.
Criminal Law Consolidation Act 1935 subs 269M Part B(1), referred to.
Lunn Criminal Law South Australia Para 5280.6; R v Dee (1884) 15 Cox CC 579; R v Gallienne [1964] NSWR 919; R v Hauth (SACCA, 20 April 1994, Jud No S4500, unreported); Papadimitropoulos v R (1957) 98 CLR 249, considered.

R v DOOLAN
[2009] SADC 115

Derek Doolan is charged with two counts of rape. The first count alleges that between 28 March 2007 and 29 March 2007 Mr Doolan had vaginal sexual intercourse with JO without her consent. The second alleges that at the same time Mr Doolan performed an act of cunnilingus upon JO without her consent.
An election was made for trial by judge alone. I recorded a finding that Mr Doolan was mentally unfit to stand trial.
Having heard evidence and representations by the prosecution and the defence pursuant to subs 269M Part B(1) of the Criminal Law Consolidation Act 1935 I find beyond reasonable doubt that the objective elements of the offence have been established. These are the reasons for my findings.
The only witness at the trial was the victim JO. There were also some agreed facts.
JO gave evidence which establishes that Mr Doolan had vaginal sexual intercourse and also performed an act of cunnilingus upon her. That evidence was not challenged. The evidence both as to the act of intercourse and the identification of Mr Doolan is corroborated by DNA evidence. I have no difficulty in making the necessary findings beyond reasonable doubt as to the acts of intercourse.
The issue in the case is whether the Crown has established that JO did not consent to the acts of intercourse.
JO said that outside, at the back of her house, there is a sleep out. Adjacent to the sleep out is a covered area in which there is a bed. Sometimes JO would sleep outside. She said she dragged her bed around anywhere.
On the night in question she had been drinking and had taken medication. Earlier the accused had called at her house with a cask of wine and asked whether JO and her husband were drinking. She thought that was funny because the accused normally socialised with her sons. JO and her husband declined the accused’s invitation and the accused went elsewhere.
JO was tired and went to bed. She went from inside to the outside bed because her husband had "kicked her out" of the room. She laid on the outside bed. At the time she went to bed the accused was not at her house. There was a light on in the sleep out and the street light was on. All that she could say about the time at which she went to bed was that it was dark.
While she was sleeping she was awakened when she felt a hand taking off her pants. She thought it was her husband. The other person was sitting on top of her. She assisted the other person to remove her underwear by shaking her pants off her leg. While that happened her eyes were closed. She said she was not fully awake, but was drowsy because she had taken medication. She did not see who was on the bed with her until later when she opened her eyes. She thought it was her husband who had come out to make up for kicking her out of the room.
She felt a penis in her vagina moving up and down. At one point the penis slipped out of her vagina and she replaced it. She said "I put it back in because I still didn't open my eyes" and still thought it was her husband.
The other person then placed his mouth on her vagina which he licked. She said she thought it was her husband - "all along I thought it was him".
There was no discussion between the two of them. When the act of intercourse had continued for longer than normal JO thought "Hang on, that's not my husband, and the kids will be home soon". She said "Because we were outside, I was worried about kids coming home from the pub and catch us in the act and that's when I open my eyes". When she opened her eyes she saw that it was the accused. She said that was the first time that she realised that it was Derek Doolan.
She pushed him off the bed. He didn't say anything but ran off into the dark. She went inside into the bathroom. A little while later she saw her husband but did not tell him what had happened. When asked why, she said "I’d get a flogging, he’d blame me for it, for having sex with another man".
She said that if she had known that it was the accused in the bed "I would have told him to get the - no, I would have hit him - he's only a kid alongside of me". She said she would not have had sex with him.
She went to her sister's house and spent the next day there thinking about what to do. In the afternoon she went to the police station.
JO said in cross-examination that when her husband came home he was very angry because he had passed the accused running out the front gate. She said she was going to tell her husband the truth but stopped because he was a very angry man and "He'll think that I wanted the sex from him". After asking what the accused was doing at the house her husband said "Don't let him come here any more, he's a rapist".
She denied that when she replaced the penis back inside her she knew that it was the accused. She gave consistent evidence that she thought it was her husband up until she opened her eyes.
She said she did not want to tell her husband the truth because he is a very violent man. She said she spent the next day with her sister "thinking what I had to do for myself to give me - to stop my hurting feeling".
JO said that having sex with the accused would be the last thing that she would have done because she has children of her own the same age as him. In fact she had helped his mother care for the accused when he was an infant.
The Crown must prove beyond reasonable doubt that JO had not consented to each of the acts of intercourse and that the accused knew that she did not consent or was recklessly indifferent as to whether she was consenting. Each of the two counts must be considered separately.
No inference adverse to the accused can be drawn from the fact that he did not give evidence.
There is no evidence that JO did consent. The question is whether the Crown has proved beyond reasonable doubt that she did not consent and that the accused knew that she was not consenting or was recklessly indifferent. The Crown case depends entirely upon the evidence of JO. If I have any doubt as to her evidence that she did not consent I must find the accused not guilty.
There is no consent when a rape victim thinks the defendant is someone else and the defendant knows of the mistake or is reckless as to consent. Lunn Criminal Law South Australia Para 5280.6 referring to the R v Dee (1884) 15 Cox CC 579 and R v Gallienne [1964] NSWR 919. In R v Hauth, unreported, Court of Criminal Appeal (20 April 1984) (1994) SASC 4500 the court approved a direction by the trial judge that if the complainant was deceived as to the identity and tricked into having intercourse there was no consent. The court referred to Papadimitropoulos v R (1957) 98 CLR 249 at 260 where the High Court said that the identity of the man and the character of the physical act done or proposed were to be regarded as forming part of the nature and character of the act to which the woman's consent is directed. The High Court said "consent demands a perception as to what is about to take place, as to the identity of the man and the character of what he is doing".
Mr Braithwaite, who appeared for the accused, pointed to aspects of the evidence of JO which he argued cast doubt upon her credibility. He referred to differences between what she told the court and what she had told police. He submitted that her evidence was inherently unlikely and that it defied belief that she did not open her eyes and discover that it was the accused earlier, for example at the time she removed her underwear or at the time she cooperated with the accused to replace his penis into her vagina.
Mr Braithwaite argued that her behaviour in having a glass of water at the time her husband walked in suggested an artful woman trapped in a corner. He pointed to the differences in the physical characteristics of the two men. He said the question is whether it is reasonably possible that she knew whom she was having sex with and that the only answer to that question is yes.
One fact which lends support to the story of JO is that there is no evidence of any relationship between JO and the accused prior to the act of intercourse occurring. There is nothing which explains the lead up to the act of intercourse. The evidence commences with the accused being in the bed of JO having intercourse with her.
The prosecutor asked rhetorically why would JO have consented to having sex with a man 20 years her junior, whom she had helped to raise, and was a friend of her sons. He argued that the possibility of the accused arriving at the house, seeing JO in the bed, climbing into the bed with her and, notwithstanding the lack of any previous relationship, having sex to which she immediately consented was not plausible. He also referred to the unlikelihood of JO agreeing to have sex with the accused on the outside bed in the plain view and hearing of anyone who came along. Her evidence was that her husband had just gone to sleep in the sleep out.
I think the inconsistencies between her evidence and statements to the police can be explained by her personality. Also, while they may demonstrate unreliability they do not touch upon the critical issues in the case. The prosecutor pointed to the fact that she had to speak to the police officer who was a stranger about an extremely upsetting incident which was not necessarily conducive to all the facts coming out on the first interview. He pointed to contradictions in the interview itself, such as the fact that she initially said she didn't think that she had sex but also told the police that the defendant had performed cunnilingus.
I have considered the fact that JO did not immediately advise her husband of what had happened and that it was not until the following day that she first advised the police. I accept that she was afraid of her husband and for that reason needed time to consider her position. I think the delay has been explained.
I have thought carefully about the arguments put on behalf of the accused. As I have said if I have any doubt about the evidence of JO as to her lack of consent I must find the accused not guilty. There is no evidence that she had consented. The matters raised by Mr Braithwaite do not provide reason to have doubt about the evidence of JO. Having thought about the evidence carefully I accept the submission of the Crown that the scenario described by JO in her evidence is not only plausible and coherent but it is the only plausible and coherent account of what had happened.
It is significant that this was not a situation in which somebody else had discovered the victim and the accused having intercourse so that JO needed to make the allegation of rape to explain her behaviour. The evidence of the acts of intercourse only came to light when JO complained to the police.
The evidence of JO as to consent has always been consistent. She has always maintained that she believed that the person with whom she was having intercourse was her husband. She gave me the impression she was telling the truth.
So far as the critical evidence is concerned I accept the evidence of JO beyond reasonable doubt. I find that she did not consent to have intercourse with the accused.
It follows from the evidence of JO that the accused knew that she was not consenting or alternatively the accused was reckless.
I find all of the objective elements of the offence proved beyond reasonable doubt.
There will be a declaration that the defendant is liable to supervision.