R v Doyle

[2021] NSWDC 499

District Court

New South Wales

Medium Neutral Citation:

R v Doyle [2021] NSWDC 499

Hearing dates:

25, 26 and 27 August 2021

Date of orders:

22 September 2021

Decision date:

22 September 2021

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

Not guilty on counts 1 and 2 on the indictment.

Catchwords:

Criminal law – Judge alone trial – tinder dating - single witness – accused not giving evidence – unreliable witness - proceedings conducted via virtual court with no personal appearances

Legislation Cited:

Criminal Procedure Act 1986

Cases Cited:

Fleming v The Queen (1998) 197 CLR 250

Kennedy v R [2000] NSWCCA 487; 118 A Crim R 34

R v Kneebone (1999) 47 NSWLR 450

Zabakly v R [2021] NSWCCA 155

Category:

Principal judgment

Parties:

Regina (Crown)
A Doyle (Accused)

Representation:

Counsel:
Mr Pincott (Crown)
Mr Martin (Accused)

Solicitors:
Ms Coleman (Crown)
Mr Keane (Accused)

File Number(s):

2020/00025382

Publication restriction:

Non-publication order in relation to the name of the complainant and anything that may identify her.

Judgment

1. On Wednesday the 25^th of August 2021, the accused was arraigned before me at the Albury District Court on two charges, namely;

Count 1: On 22 March 2018, at Leeton in the state of NSW, did have sexual intercourse with CR without the consent of CR, knowing she was not consenting.

Count 2: On 22 March 2018, at Leeton in the state of NSW, did assault CR and at the time of the assault committed an act of indecency in the presence of CR.

2. The accused pleaded not guilty to the charges. The matter proceeded as a Judge alone trial as ordered by me on Monday the 23^rd of August, 2021.

Directions:

3. In compliance with s 133(2) and (3) of the Criminal Procedure Act, and as required by the decision of the High Court in Fleming v The Queen (1998) 197 CLR 250, I remind myself of the following principles of law: as the accused has pleaded not guilty and elected trial by Judge alone it becomes my duty and responsibility to consider whether the accused is guilty or not guilty of the charge and to return my verdict according to the evidence that I have heard.

4. I have received final submissions from the Crown and Mr Martin of counsel. I will consider the submissions that have been made and give to the submissions such weight as I think they deserve. I note that in no sense are those submissions evidence in the case.

5. I know that as the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs and my common sense. I acknowledge that I have very important matters to decide in this case, important not only to the accused but also the whole community. I must act impartially, dispassionately and fearlessly. I must not let sympathy or emotion sway my judgment. As the sole Judge of the facts I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence that has been presented during the course of the trial. That evidence includes the oral evidence of the various witnesses called and the various exhibits.

6. I remind myself that I may in my role as a judge of the facts draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw an inference from proven facts if such an inference is the only reasonable inference that can be properly drawn from the proven facts.

Onus and Standard of Proof:

7. I now direct myself on the onus of proof. This is a very important direction. This is a criminal trial of a most serious nature and the burden of proof of guilt of the accused is placed on the Crown. That onus rests upon the Crown in respect of every element of the charges. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. I warn myself that suspicion is not a substitute of proof beyond reasonable doubt. It is, and always has been, a critical part of our system of justice that persons tried in this Court are presumed to be innocent unless and until they are proved guilty beyond reasonable doubt. Unless the Crown succeeds in proving each and every one of the essential ingredients or elements of the charge beyond reasonable doubt then the accused must be found not guilty of the charges.

8. The words “beyond reasonable doubt” are ordinary everyday words, and that is how I understand them. If, at the end of my deliberations, having taken into consideration the evidence both for the Crown and for the accused in respect of any matter which the Crown must establish to make out its case, and after also taking into consideration the submissions made to me by each of the counsel in their addresses, I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt then it is my duty, as I have said, to bring in a verdict of not guilty because the Crown will have failed to do what the law requires it to do.

9. I remind myself that it is vitally important that I clearly understand that the accused must be found not guilty if his guilt has not been proved to my satisfaction beyond reasonable doubt. It follows from this, of course, that if I am left unable to decide whether the Crown has proved its case in relation to any such essential element even though I may feel that the accused may be guilty, if I have a reasonable doubt in respect of that matter the accused is entitled to the benefit of that doubt and I must find him not guilty. This is so in respect to the Crown case against the accused.

ERISP:

10. The accused gave a version of events in the recorded interview with the investigating police. The accused is entitled to rely upon that account and I remind myself to take that into consideration with the other evidence called by the Crown. The accused is not required to prove that this account is true. The Crown in discharging its obligation to prove the accused’s guilt must satisfy me that it is a version of events that could not reasonably be true.

Expert Evidence:

11. In this case, Lisa Wedervang and Dr Marion Reeves were called as expert witnesses. An expert witness is a person who has specialised knowledge based on the person’s training, study or experience. Unlike other witnesses a witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise. Other witnesses may speak only as to facts, that is, what they saw or heard, and are not permitted to express their opinions.

12. Of course the value of any expert opinion is very much dependent on the reliability and accuracy of the material which the expert used to reach her opinion. It is also dependent upon the degree to which the expert analysed the material upon which the opinion was based and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness’ specialised knowledge.

13. Expert evidence is admitted to provide the Court with DNA information and an opinion on a particular topic which is within the witness’ expertise, but which is likely to be outside the experience and knowledge of the average lay person. A medical examination was conducted of the complainant. The expert evidence is before me as part of all the evidence to assist me in determining whether the accused had sexual intercourse with the complainant. I must bear in mind that if having given the matter careful consideration I do not accept the evidence of the expert, I do not have to act upon it. This is particularly so where the facts upon which the opinion is based do not accord with the facts as I find them to be.

14. I am also to a degree entitled to take into account my common sense and my own experiences if they are relevant to the issue upon which the expert evidence relates. It is for me to decide whose evidence and whose opinion I accept in whole or in part. I remind myself that this evidence relates only to part of the case and that while it may be of assistance to me reaching a verdict, I must reach my verdict having considered all the evidence.

15. Further, there has been no challenge to the qualifications of the expert witnesses, whom I may consider well qualified.

16. If the opinion is based upon facts which I am satisfied have been proved, or assumptions that I am satisfied are valid, then it is a matter for me to consider whether the opinion that is based upon those facts or assumptions is correct.

17. On the other hand, if I decide that the facts have not been proved, or the assumptions are not valid, then any opinion based upon them is of no assistance because it has no foundation. If that is the case the opinion should be disregarded.

Accused Not Giving Evidence - Azzopardi Direction:

18. Mr Doyle has not given or called any evidence in response to the Crown case. There are a number of important directions of law which I must follow in relation to that fact.

19. Although an accused person is entitled to give or call evidence in a criminal trial, there is no obligation upon him to do so. As I have already pointed out, the Crown bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offence charged.

20. Mr Doyle bears no onus of proof in respect of any fact that is in dispute. I remind myself that he is presumed to be innocent until I have been satisfied beyond reasonable doubt by the evidence led by the Crown that he is guilty of the offence charged.

21. Therefore, it follows that the accused is entitled to say nothing and make the Crown prove his guilt to the high standard required. I direct myself as a matter of law that the accused’s decision not to give evidence cannot be used against him in any way at all during the course of my deliberations. That decision cannot be used by me as amounting to an admission of guilt. I must not draw any inference or reach any conclusion based upon the fact that the accused decided not to give or call evidence. I cannot use that fact to fill in any gaps that I think might exist in the evidence tendered by the Crown. It cannot be used in any way for strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt. I remind myself that I must not speculate about what might have been said in evidence if Mr Doyle had given evidence.

Single Witness:

22. Wherever the Crown seeks to establish the guilt of an accused person with a case based largely or exclusively on a single witness, it is important that I exercise caution.

23. I must exercise caution before I convict the accused because the Crown case largely depends on me accepting the reliability of the evidence of a single witness.

24. This being so, unless I am satisfied beyond reasonable doubt that the complainant, is both an honest and accurate witness in the account she has given, I cannot find the accused guilty. Before I can convict the accused, I am to examine the evidence of the complainant very carefully in order to satisfy myself that I can safely act upon that evidence to the high standard required in a criminal trial.

Jovanovic Direction:

25. As I mentioned previously, the essential elements of the Crown case must be proved beyond reasonable doubt or the accused must be acquitted. The case turns on the evidence of the complainant, CR. I must be satisfied beyond reasonable doubt that she has been an honest and reliable witness.

26. It is my duty to decide whether I accept the evidence of a witness in whole or part. The complainant is no exception to that.

27. It would be wrong for me to conclude that the complainant is telling the truth because there is no apparent reason, in my view, for her to lie. People lie for all sorts of reasons. Sometimes it is apparent. Sometimes it is not. Sometimes the reason is discovered. Sometimes it is not. I cannot be satisfied that the complainant is telling the truth merely because there is no reason for her to have made up these allegations. There might be a reason for her to be untruthful that nobody knows about.

Separate Counts/Markeluski Direction:

28. The indictment has 2 charges relating to one complainant, CR. I must consider the evidence in respect of each charge separately. I must give separate consideration to the individual counts. I am entitled to bring in verdicts of guilty on some counts and not guilty on other counts if there is a logical reason for that outcome.

29. It follows from that if I have a reasonable doubt as to the truthfulness and reliability CR, I can use that reasonable doubt to determine whether I have a reasonable doubt in respect of any other count that I am considering for that complainant. If I were to find the accused not guilty on any count, particularly if it was because I had doubts about the reliability of the complainant’s evidence I would have to consider how that conclusion affected my consideration in relation to the remaining count.

Complaint Evidence:

30. The Crown relies upon what Ms CR said on the 000 call about the alleged non-consensual sexual intercourse as evidence that such an offence occurred.

31. It is for me to decide whether the complaint was made and what its contents were.

32. If I find that the complaint was made substantially to the effect that Angus Doyle did have sexual intercourse with CR without her consent then I can use evidence of what was said in the complaint as some evidence that the events alleged by the Crown did occur.

33. The law says that because of the circumstances in which the complaint was made, I am entitled to use what was said in that complaint as evidence of the truth of what the complainant alleged against Angus Doyle. I am entitled to find that the complaint was made at a time and in a manner that would indicate that the allegation was reliable, that is, that the allegation is less likely to have been fabricated by CR and more likely to be accurate. It is a matter for me whether I draw that conclusion in this case and so I must treat the complaint as evidence of the alleged acts by the accused in addition to the evidence that has been given about it during the trial. If I do use it as some evidence of the assault, that is the subject of the charge, then what weight I give it is again a matter for me.

34. Secondly, the Crown asserts that the evidence of complaint also has another purpose. The Crown contends that the fact that CR raised the allegation against Angus Doyle at the time and in the manner she did would lead me to accept her evidence. In other words, it makes her evidence more believable than if she had not raised the allegation as she did.

35. Again, it is for me to decide whether this complaint was made, but if I am satisfied that it was, then the question I should ask myself is, did the complainant, CR act in the way I would expect her to act if she had been assaulted as she says she was? Is what she did the sort of conduct I would expect of a person who has been assaulted in that way? If I think that the complainant has done what I would expect someone in her position to do, that may support the Crown case because I find that there is a consistency between CR’s conduct and the allegation that she makes against Angus Doyle.

36. On the other hand, if the complainant has not acted in the way I would have expected someone to act after being assaulted as she described, then that may indicate that the allegation is false.

Lies as to Credit Direction:

37. Mr Crown submits that the accused has told a number of lies in his ERISP.

38. I must be satisfied that Mr Doyle said something that was untrue and that at the time of making the statement he knew that it was untrue.

39. If I decide that he told lies the only use I can make of the fact that he told a lie (or lies) is my assessment of his credibility. If I am satisfied that he did lie, then that may be considered by me as having a bearing upon whether I believe the other things that he has said to the police.

s293A Direction:

40. The defence case is that CR is not telling the truth, that there were gaps in the accounts she gave, and that there were differences and inconsistencies between the accounts given.

41. Experience shows that people may not remember all the details of an event including a sexual offence in the same way each time, that trauma may affect people differently and may affect how they recall events, that sometimes there are differences in an account of a sexual offence, and both truthful and untruthful accounts of an event including a sexual offence may contain differences. It is my job as a Judge of the facts in a Judge alone trial, to decide whether or not any differences in the complainant’s account are important in assessing her truthfulness and reliability.

Liberato Direction:

42. First, if I believe the account relied on by the accused in his interview with the police, obviously I must acquit.

43. Second, if I find difficulty in accepting the accused’s account, but I think it might be true, then I must acquit.

44. Third, if I do not believe the accused’s account, then I should put it to one side. Nevertheless, the question will remain: has the Crown, upon the basis of evidence that I do accept, proved the accused’s guilt beyond reasonable doubt?

Elements:

45. Count 1: The accused is charged with one count of sexual intercourse without consent. There are three elements that the Crown must prove beyond reasonable doubt:

1. At the time and place alleged, the accused had sexual intercourse with the complainant.

2. At the time of the sexual intercourse, the complainant did not consent.

3. The accused knew the complainant did not consent.

Sexual Intercourse:

46. Sexual intercourse means, in law: sexual connection occasioned by the penetration to any extent of the genitalia of a female person. It is alleged that he penetrated her vagina with his fingers.

Consent in Relation to Sexual Offences:

47. A person consents to a sexual activity if the person freely and voluntarily agrees to the sexual activity. Consent involves a conscious and voluntary agreement on the part of the complainant to engage in sexual intercourse with the accused. Consent can be given verbally or expressed by actions.

48. Absence of consent does not have to be in words; it also may be communicated in other ways such as the offering of resistance although this is not necessary as the law specifically provides that a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse. Consent which is obtained after persuasion is still consent provided that ultimately it is given freely and voluntarily.

49. The Crown must prove that the complainant, being aware that it was an act of a sexual nature, did not consent to the physical act of the accused.

50. The accused denies putting his fingers in her vagina. The complainant says he did and that she was not consenting and expressed her non consent.

Knowledge About Consent:

51. The Crown must prove to me, beyond reasonable doubt that the accused knew (had actual knowledge) that the complainant did not consent.

52. Count 2: The accused is charged with one count of assaulting CR and at the time of the assault committing an act of indecency in the presence of CR. The two elements that the Crown must prove beyond reasonable doubt are:

1. That the accused, at the time and place alleged, assaulted the complainant.

2. That the assault was accompanied by an act of indecency in the presence of the complainant which occurred before, after or at the time of the assault.

53. The allegation is that the accused was masturbating his penis and tried to insert it into the complainant’s vagina.

Assault:

54. An assault is the deliberate and unlawful touching of another person. The slightest touch is sufficient to amount to an assault and it does not have to be a hostile or aggressive act or one that caused the complainant fear or pain.

Indecent

55. The word “indecent” means “contrary to the ordinary standards of respectable people in the community.”

56. For an assault to be indecent it must have a sexual connotation or overtone. If the accused touches the complainant’s body or uses his body to touch the complainant in a way which clearly gives rise to a sexual connotation that is sufficient to establish that the assault was indecent.

57. If I find the assault does not carry a clear sexual connotation or overtone, the Crown must prove beyond reasonable doubt that the accused’s conduct was accompanied by or went hand in hand with his intention to obtain sexual gratification. In deciding whether the Crown has proved this essential ingredient of the charge, I should take into consideration all the surrounding circumstances including the accused’s words and/or actions, the respective ages of the accused and the complainant, any relationship which may have existed between them and the nature of the act relied upon.

58. The accused denies masturbating his penis and attempting to insert it into the complainant’s vagina.

EVIDENCE LED IN THE CROWN CASE

59. The Crown called the following witnesses:

1. CR (the complainant)

2. Trey Doyle (the brother of the accused)

3. Dr Marion Reeves (examined the complainant on 22 March 2018)

4. Detective Senior Constable Boorer (Officer in charge)

5. Lisa Wedervang (DNA expert)

60. The Crown tendered the following exhibits:

1. USB of ‘000’ call made by CR and transcript (11 pages)

2. 4 x colour photographs of underwear worn by CR on 22.03.18

3. ERISP of Angus Doyle dated 04.04.18

4. Expert certificate of Lisa Wedervang dated 06.06.21

5. Statement of Joanne Patricia Jennings (Crime Scene Officer) dated 10.04.19

6. Statement of Dr Marion Reeves dated 22.02.21

7. Diagram drawn by Trey Doyle for the police

8. Statement of Detective Boorer dated 02.01.20

9. Transcript of interview with CR dated 23.03.18

10. Statement of Nicole Ingram dated 12.10.19

11. Edited statement of Rebecca Miller dated 24.01.21

12. Statement of Kyle Dalzeel dated 23.03.18

13. Statement of Senior constable Stuart Browne dated 20.01.20 with attachment of notebook entries

14. Statement of Sergeant Craig Johnson dated 10.02.21

15. Statement of Justin Milne dated 12.08.21

16. Custody management records dated 05.03.21

17. Statement of Sergeant Eric Rudolf Senff dated 27.03.18

18. Senior Constable James Whelan dated 12.01.20

19. Instrument of authorisation dated 16.12.18

20. Forensic procedure documents

21. Statement of Daniel Guy dated 21.05.21

22. Statement of Greg Lenfter dated 13.04.20

23. Statement of Melissa Thornton dated 04.12.19

24. Statement of Michael Wood dated 02.07.21

61. The defence tendered the following exhibit:

1. Screenshots of text messages and snapchat ID between CR and Angus Doyle (10 pages)

THE EVENTS LEADING UP TO THE ALLEGED OFFENCES

62. The complainant told the police she met the accused through her friend Lisa. In cross examination she agreed that “sort of yeah not correct.” She went on to say that they had met on Tinder and then actually met face to face with her friend. The concept of meeting on the internet and meeting in person is consistent with the answers she gave. It does not point to an inconsistency as suggested by Mr Martin. However, the complainant was unable to provide any information to the police to identify Lisa. She could not provide a surname, telephone number or address. This points to unreliability on the part of the complainant. The accused in his interview told the police he had met the complainant on Tinder. He denied having met her before 22 March 2018. His brother Trey Doyle gave evidence that he saw the accused with the complainant in January 2018. He was introduced by the accused to the complainant and she stayed overnight in the spare bedroom sometime in January. There is an inconsistency between what was said by the accused as to when he said he first met the complainant and his brother’s recollection of the events.

63. The complainant gave evidence that she was driven to Leeton by a friend of hers named Brittany in a red car. They went to McDonalds and had a frozen coke and a sundae. Thereafter they went to the Leeton Club for dinner.

64. Detective Boorer made inquiries about the movement of the complainant. The complainant was unable to provide any further detail than the name of Brittany. She was unable to provide a surname or a telephone number for the person Brittany. Detective Boorer was unable to identify her.

65. On the time line of events the complainant would have had to attend McDonalds before 9pm. Police conducted a search of the CCTV footage inside the restaurant and the drive through. The complainant was not identified nor was a red car. This calls into question the version of events given to the police.

66. The complainant told the police that she entered the Leeton club by the rear entry. The club does not have CCTV for the rear entry, nor does it have a sign in book at the rear entry. The police were unable to corroborate her movements.

67. She then met up with a friend, Kyle Dalzeel and spent some time with him. She left his residence and was walking to McDonalds when she received a txt message from the accused. She could not remember what it said but she responded “whatever.” She then recalled that he wanted to meet up. She met him at a park and they went back to his house.

AT THE HOUSE

THE COMPLAINANT’S VERSION

Evidence in Chief

68. When they got to the house they went inside into the lounge room. The accused’s brother was asleep on the couch. He grabbed his TV from the lounge room and took it into his room. She then went into his bedroom. He plugged the TV in and she sat on his bed. He then went and got his brother’s laptop. He put a movie on but she could not recall what movie it was. She was sitting on the bed and then she lay down. She fell asleep within a couple of minutes.

69. She was wearing a black skirt and a black singlet top. She had taken an orange jumper off before she went to sleep. He was wearing shorts and nothing on the top of his body. She said she woke up at about 2 o’clock because she looked at the time. He was naked and he hugged her and she said, “don’t I’m tired”. He was then trying to take her skirt off. She kept saying no. He pulled her skirt off. And then he put his fingers inside her pussy. She could not recall which hand he used. Nor could she remember where she was on the bed. She kept telling him to stop. When asked how many fingers he was putting inside her vagina she said “I can’t remember”. He was putting his fingers in and out. She could not remember how many times he put his fingers in and out of her vagina.

70. She told him to stop and then she punched him in the face. She did not recall which hand she used to do that. She could not recall which part of his face the punch connected. She could not recall what he did when she punched him in the face.

71. He then hopped on her and covered her mouth and choked her. He put his hand over her mouth she was trying to yell out stop. He then choked her putting his hand around her neck. She then said that she pushed him off, put her clothes back on and left.

72. The Crown applied for the witness to refresh her memory. The witness had failed to give any evidence in relation to count two of the indictment. The Crown also wished for the witness to refresh her memory as to the number of times he placed his fingers in her vagina and the process of getting him off her. Leave was granted.

73. The complainant had difficulties reading her statement. The Crown’s instructing solicitor read part of the statement to the witness to refresh her memory. She agreed that she had told the police,

“He got off me and started wanking his dick to get it hard. Angus was holding me with his legs. I was trying to get away but he got back on me and tried to put his dick in me but I kicked him off. Angus said ‘I know you want it’. I said ‘I just want to be friends’. Angus said ‘get out of my house’. I said ‘good’”.

74. She was asked did you see is penis at any point she responded,

“not really”.

75. Later on she said she saw his dick and it was hard at the time. He was trying to put it in her vagina but he did not succeed because she pushed him off.

76. She got dressed and walked to the front door. She saw a knife stuck in the door frame. She couldn’t open the front door. The accused opened it and then she left. The accused’s brother was asleep on the lounge.

77. Once she left the house she rang 000. During the course of the 000 call she returned back to the house to obtain the number of the house for the police and realised that she had left her wallet. She said that the accused was sitting at the front with her wallet. He gave the wallet to her. She then went to a school and waited for the police. She spoke to a cleaner at the school.

78. She believed she was wearing grey underpants. A photograph of her underpants was tendered. She agreed that her underpants were pink and black after seeing the photograph.

Cross-Examination

79. She agreed that she had connected with Mr Doyle through Tinder in 2016. She met the accused in a park. She denied that they held hands. Mr Martin put that proposition to the witness to mount an argument about the transfer of DNA. The complainant denied holding hands with the accused.

80. She agreed that they arrived at the accused’s house between 10 and 11 pm. She denied that the accused’s brother was sitting on the lounge watching TV. She said he was asleep. She denied saying to the 000 operator that the brother woke up. In the 000 call the complainant says,

“and then a person on the lounge is asleep and then he woke up…”.

81. Page 5 of the 000 call records the complainant saying,

“… And like his brother is just sleeping on the lounge. And then his brother woke up… And he got…”.

82. What she said to the 000 operator is inconsistent with her evidence in the trial that the brother was asleep on the couch and did not wake up. She said on two occasions in cross examination that all she said to the 000 operator was “that he was asleep” and she didn’t say anything after that. She refused to accept that she told the 000 operator that the brother had woken up. They were her words and reflect upon her credibility and reliability.

83. She denied having her back up against the wall when she was on the bed. She said that she was facing the wall. She denied having her legs fully outstretched when on the bed. It was put to her that she did not fall asleep on the bed. She denied that assertion and said that she did fall asleep. She denied talking for hours while the movie was playing. She denied having a conversation getting to know each other. It was put to her that he was wearing a black T-shirt and pants. She said that he did not have a T-shirt on and that he was naked when she woke up.

84. It was put to her that,

“Mr Doyle made a comment to you like you don’t look as good as what you did in the pictures on tinder”.

she said,

“I don’t remember”.

85. It was put to her that that comment made her angry and she punched him to the right side of the face. She denied that proposition. She agreed that she did punch him to the face but for a different reason.

86. It was put to her that he grabbed her by her arms and pulled her off the bed. She did not remember this happening. It was put to her that he picked up the wallet from the bedroom floor and gave it to her. She denied that proposition; she said she left the house without her wallet.

87. It was put to her that he dragged her out of his bedroom. She said that he did not touch her and he didn’t drag her. She walked out herself and he followed. She denied that he pushed her to the front door. She denied shouting at him,

“Why don’t you love me”?

88. She denied punching him to the right side of the face at the front door. She said she did not punch him at all other than in the bedroom. It was put on behalf of the accused that he pushed her out of the front door. She said that it he didn’t touch her at all.

89. She was taken to a further passage on page 5 of the transcript of the 000 call when she said,

“…and then he’s like you fucking want it, I know you do. And he started, like… threatening and shit then he started taking my clothes off”.

90. She agreed that the accused had never threatened her. What was said in the 000 call was inconsistent with the evidence given in the trial.

91. She agreed that she did not tell Dr Reeves that she had been choked nor did she point to any injuries or marks on her body to show that she had been choked.

92. She made a statement to police on 24 March 2018. In that statement she was asked whether his dick was soft or erect. She told the police officer,

“I don’t know”.

93. That version is different to her evidence in chief.

94. The call to 000 was made at 3:16am. She said that she did not call anyone but the police. It was put to her that she made a phone call to Kyle Dalzeel at 2:58am and that Mr Dalzeel did not answer. She denied making the call contrary to telephone records. She said she called the police straight away when she walked out of the door. This is inconsistent with the telephone records. Later in cross-examination she agreed that she had called her boyfriend who did not pick up and then she rang the police straight after because she didn’t know how to get home. She was scared and had been raped.

95. She denied that it was her intention to stay the night at Mr Doyle’s house. In the 000 call she tells the operator,

“I was supposed to stay overnight”.

The two cannot lie together.

96. In the 000 call she alleged that the accused took $5 out of her wallet. She conceded that she did not make that allegation to the police in the recorded interview conducted at Leeton or in her statement obtained at the Griffith Police Station.

97. Mr Martin then engaged in “closing gates” in relation to the mobile telephone of the complainant. He did so because of exhibit A. Exhibit A was a number of text messages sent from the complainant’s telephone to the accused's telephone post-dating the alleged offences. She said that she did not send the txt messages and that someone must have used her telephone. She said she was in Sydney in hospital at the time the messages were sent. I found her explanation unconvincing.

THE ACCUSED’S VERSION

98. Mr Doyle was interviewed by police on 4 April 2018 (Exhibit 3). Mr Doyle told the police the following; He met the complainant on an app called Tinder. They agreed to meet up. She came over from Leeton. He met her up at the park. He was waiting for her at the big roundabout and then when they met up they went back to his house. They went into his room. His little brother was in the lounge room watching TV. They were talking and he could not remember what they were talking about. He said:

“The next thing I know I got whacked in the face and she’d gone off at me and I grabbed her and started yelling at her like not grabbing her in any like way to hurt her to but it was to remove her out of my house and get out of my house… and as I am getting her out of my house my little brother woke up to me saying ‘get out you assaulted me get that eff out of my house’… I don’t want you to come back. Lose my number and don’t talk to me ever again.”

99. He told police this was the first time he had met her. He said he had been waiting at the park for about 40 minutes to an hour at around 10 o’clock. After he met her they left straight away and went to his house. They walked to his house. They cut through the Park View School and went through a little circle park. They walked down through that park and popped out near a phone booth and then down onto his street.

100. He told the police,

“I asked her if she was thirsty and offered a drink toward her and cause my brother had to go to bed I unhooked my TV took it into the bedroom so we had something to watch and he was able to go to sleep in peace…”

“…Then once I had everything up I asked her what movie she wanted to watch she said she doesn’t care so I just like got the laptop ready… I just put a random movie on while we spoke”.

101. The laptop was his mother’s which he had in his room. He did not have to get anything other than the TV. They sat down on the bed. He was wearing black pants and a shirt. He said she ended up sliding herself up to the side of the bed and they just sat there talking,

“It was more or less just get to know each other and find out more information… The plan was if everything all went well after having that conversation probably a relationship… I don’t believe in one night stands I believe in long term type stuff”.

102. He said that on his Tinder bio it says no one night stands looking for long-term. He said he was fully dressed the whole time. They talked to about 3.00-3.30am. He said to the police,

“…that was about the time that it all went went south…She hit me and I threw her out”.

103. At the time she hit him they were both leaning up against the wall. He denied that she woke up at about 2:00am and he was attempting to hug her.

104. When it was put to him that she was declining his advances and asking him not to touch her he said, “never happened”. He denied that neither of them fell asleep. He said that the only person asleep in the house was his little brother. He denied trying to remove her black skirt by pulling it off. He said he did not try and remove her clothing, he’s not that type of person. He said,

“I’m the type of person to put that type of person in the hospital… I’m against all woman abuse and sexual assault and all that stuff… I’m against it”.

105. It was put to him that she had kicked him to get him of her. He said,

“She never kicked me but she did punch me”.

106. He told the police that he grabbed her by the arms and dragged her out of his bedroom and dragged her to the front door. He pushed her out of the front door going off at her and then he shut the screen door and slammed the wooden door. He was asked at question 223,

“You mentioned when I spoke to earlier something about her tinder profile that when you saw her in person… That she wasn’t who you what she thought she was… And she tell me about that?”

He answered,

“She made herself, she dolled herself up really pretty on Tinder. Made herself look well 10 times more attractive than what she is… And I think I might have said something like that to her and that might have caused like as in I think I might said that you’re not as, you don’t look as good as what you did in the pictures… And that might have led to the punch in the jaw… I think I did say that… Yeah I did say that sorry”.

107. He was asked whether he can remember what she said before she hit him. He said she didn’t say anything it was just punch. In the video he demonstrates a straight left arm punch.

108. The police officer then put the complainant’s allegations to Mr Doyle. He denied removing her skirt and underwear. He said that they were both dressed the whole time. He said that she was not yelling stop, if she had been, then his little brother would have woken up to it.

109. When asked about putting his fingers in her vagina he said,

“That’s wrong… I find that highly disturbing and very wrong… We did not get sexual at all”.

110. It was put to him that she was kicking him and he covered her mouth as she continued to yell and scream. He said that that was all lies. He denied inserting his fingers into her vagina.

111. It was put to him that he began to masturbate himself while holding her down with his legs. He said,

“That never happened”.

112. It was put to him that he tried to insert his penis inside her vagina. He said,

“That never happened”.

113. He said that they both went to the front door he was dragging her to the front door. In the video he demonstrates holding her upper arms. He said she liked flopped herself to the ground. She wouldn’t stand up… and tried not to move. He said he opened the door and pushed her out.

114. He denied that she returned to the house. He said that she had everything that she came with when he threw out. He said that he had seen her wallet, it was on the ground so he grabbed and gave it to her before he dragged her out.

113. He was asked at question 345,

“At any stage did you have a confrontation with her or anything out on the driveway of the premises?”

He answered,

“Nuh I went straight into my room after I’d shut the door and went to bed”.

116. He denied that she came back to the house and that he handed her wallet to her.

117. He said as a result of the punch to his face it was swollen and he showed Rebecca Miller his face.

118. At question 361 he was asked,

“Did you think about calling the police also?”

He said,

“I just brushed it off as a crazy psycho”.

119. He told police that the only time their skin touched was when they held hands probably for about five minutes.

TREY DOYLE

120. Trey Doyle was 15 at the time he witnessed events in his brother’s house. He was woken from sleep in the early hours of the morning. Those matters must be born in mind when one makes an assessment of his evidence. I granted the Crown leave to cross-examine Trey Doyle on the grounds that he was an unfavourable witness and to allow the Prosecutor to address unfavourable aspects and inconsistencies of his evidence before the Prosecutor invites me to disbelieve or disregard the inconsistent evidence: R v Kneebone (1999) 47 NSWLR 450, Kennedy v R [2000] NSWCCA 487; 118 A Crim R 34, Zabakly v R [2021] NSWCCA 155 Basten JA at [40].

121. The complainant does not contend that Trey was not there. She says that he was asleep on the couch and could not have made the observations he said he did. However, in two passages in the 000 call she says that,

“A person on the lounge is asleep and then he woke up and he’s like you know what’s like, what’s wrong?” (page 2 exhibit 1)

“…his brother is just sleeping on the lounge and his brother woke up…” (page 5 exhibit 1)

122. Trey gave evidence that he met the complainant in the January School holidays in 2018. It was his brother Angus who introduced him to the complainant at Angus’s place. She stayed the night in the spare room. This evidence is different to the evidence of the accused who said that he had only met her in the evening that the alleged offences took place.

123. Trey said that he got to his brother’s place at 9:50 pm. He rode his pushbike to his brother’s house. He grabbed Angus’s laptop from his room and proceeded to watch a movie in the lounge room with Angus. While they were watching a movie Angus received a phone call. Angus said,

“look who’s calling me”.

124. He heard a few pieces of the conversation and remembered her asking to come over. Angus left the house to collect her halfway. He continued watching the movie.

125. Angus and the complainant returned to the house and they sat down next to where he was seated on the lounge and watched a movie with him. They then went into Angus’s room and he lay down on the lounge and had the laptop on his chest. He said the house only had one laptop. This evidence is different to the evidence of the accused.

126. He said he slowly started to drift off and went into a state where he was half asleep but still conscious of his surroundings. The movie on his computer was still playing. He fell asleep. He woke up in shock from yelling from a female voice saying,

“Why don’t you love me?”

And he presumed it was either next door somewhere or on the street.

127. He did not hear anything coming from Angus’s bedroom until the door opened and he saw Angus pushing her out while he had his head down in a sort of defence mode. He heard her say

“Why don’t you love me?”

128. And after that, just the sound of the door opening. She was facing him and his arms were extended.

129. He demonstrated to the court how his brother was holding the complainant. He indicated that the left arm was on the right front shoulder area of the chest of the complainant and his brother’s right arm would have been on the left front shoulder area of the chest of the complainant as both people were facing each other. He then demonstrated that the accused was pushing the complainant out of the room. It continued to the front door.

130. Near the front door the complainant struck his brother. She threw a left haymaker striking to the right side of the face to his cheekbone. His brother said to her “get out of my house” as he proceeded to push her out through the front door he then quickly shut the door and locked it.

131. Trey was laying on the lounge and Angus said to him,

“Please tell me you saw that”.

Trey responded,

“Yes”.

After he said yes his brother said,

“She will most likely say that I assaulted her”.

132. He was holding the side of his face. He was holding his right side cheekbone. He proceeded to go into his bedroom and Trey did not see him for the rest of the night.

133. Trey stayed up all night just in fear that she would either smash a window or try to get in again. He stayed with Angus for a couple of days and noticed that Angus had a lump on his face.

134. The Crown Prosecutor put to the witness that Angus never pushed CR to the front door. Trey responded,

“… I saw him pushing with his force to get her out as quickly as possible”.

135. It was further put to the witness that she walked from the bedroom to the front door. Trey responded,

“… But she didn’t”.

136. The Prosecutor took him to his statement and he agreed that he had not told police that she tried to strike his brother three times which was his evidence in the trial. He said at the time he made his statement he was nervous and not really aware of what was happening at the police station. He thought the statement would be taken at his home. The Prosecutor put to him that he was making it up. He responded,

“No. I was not. I took an oath. I don’t lie.”

137. He did not see the complainant fall or flop on the floor when she was been pushed by the accused. This is inconsistent with the accused’s version. He told police,

“She like flopped herself to the ground…she wouldn’t stand up…and tried not to move.”

138. Although there a inconsistencies in the versions given by the accused and Trey Doyle I am satisfied that Trey Doyle was awoken from sleep by hearing the complainant yell to the accused, “Why don’t you love me?” shortly before or at the time the bedroom door opened and the accused then pushed the complainant towards the front door.

139. He was able to hear what he heard and see what he saw from his position on the couch.

140. The inconsistencies between the brothers are no doubt the product of the age of Trey (15) and being awoken in the early hours of the morning to a fast moving confrontation.

141. The complainant yelling to the accused “Why don’t you love me?” is a significant and important piece of evidence which is inconsistent with the version she gave. If she had been digitally penetrated she would not be yelling “Why don’t you love me?” It defies common sense.

THE 000 CALL AND EVIDENCE OF COMPLAINT

142. At 2.58am the complainant attempted to call her boyfriend. He did not answer the call. At 3.16am the complainant rang 000. During the call she said,

“…he was tryin’ to like, rape me ‘cause I didn’t want it, so it’s classed as rape…he’s tryin’ to rape me, and then I walked out the door.”

143. There was no allegation of digital penetration anywhere in the call. Lawyers know that digital penetration is not trying to rape me, it is rape. However a lay person may not have the same understanding. I am concerned that no physical description was given by the complainant in the call other than,

“…he was trying to rape me.”

144. After the 000 call the complainant went to a school and waited for the police to arrive. At the school she spoke to two cleaners who made observations of her.

145. Nicole Ingram told the police,

“I do remember seeing a girl standing right in the entrance gateway to the school. I can remember she looked freezing and she wasn’t wearing much clothing. She had bare arms and legs, but that’s all I can remember. I don’t think she would have been more than 22 years old and was shorter than me… I got out of the car and walked across the road and said something like can I help you, she said that she had called the police and she was waiting for them to pick her up. I stopped and waited with her and had a smoke and she told me what happened to her… I can remember her saying something like she had gone to a man’s house and I think she said she did not know him and when she wanted to leave he got angry and something about a knife and a doorway and that she ran away… I was with her for about 20 minutes and I can’t remember her saying anything else that made me worried for her. I don’t remember seeing any injuries on her and she didn’t complain about being injured.”

146. Melissa Thornton told the police,

“I walked over to Nikki and the girl and asked what was going on as it was strange to see someone who was not working at school to be there at the time. I can remember the girl telling me why she was there. She said that she is waiting for the Griffith police to pick her up because she had called… She said that she had come over to Leeton to meet up and go out with a guy she didn’t say if he was her boyfriend or anything. She said that she had gone out and went back to a house and that the guy had wanted to have sex with her but she didn’t want to. She said that they had some sort of argument and she ran out and called the police and waited at the school… In my opinion she didn’t appear scared and worried to be standing at the front of the school by herself and she didn’t make any mention of being injured that I can recall.”

147. The complainant did not make any allegation of sexual penetration, masturbation, choking or any other physical actions on the part of the accused. Her complaint was somewhat vague and amounted to a guy wanting to have sex which she did not want to and they had an argument and she ran out and called the police.

148. It is for me as the tribunal of fact to decide whether the complaint was made. If I am satisfied that it was then the rhetorical question I should ask is did the complainant act in the way that one would expect her to act if she had been sexually penetrated as she said she was? Is what she did the sort of conduct one would expect of a person in her position at the time?

149. I am not satisfied that the 000 call amounts to a complaint of sexual penetration (rape). The complainant did not complain to Melissa Thornton or Nicole Ingram that she had been raped, nor did she complain of any violence or injury. I am not satisfied the complainant acted in a way that you would expect her to act if she had been raped and choked as she said she was.

DNA EVIDENCE

150. Ms Wedervang gave evidence that she analysed a tape lift of the centre area of the waistband of the complainant’s underwear. The DNA recovered is a mixture that originates from at least three individuals. CR, Kyle Dalzeel and Angus Thomas Doyle cannot be excluded as contributors to this mixture.

151. The crime scene officer, Joanne Jennings pressed adhesive tape around the inside and outside centre waistband area of the front of the underwear. It was that tape lift which was analysed by Ms Wedervang. The crime scene officer should have used separate tape when pressing inside the centre waistband and pressing outside the centre waistband. The methodology used by the crime scene officer means that one cannot know the position of the DNA whether it be inside the waistband or on the outside of the waist band.

152. In cross-examination Ms Wedervang spoke of DNA transfer that could happen by holding hands and then the touching of clothing transferring a person’s DNA onto the clothing. The accused told police they had held hands for about five minutes. The complainant denied holding hands with the accused. The witness agreed that transfer could also occur from the sheets of the bed. Trey Doyle was cross-examined about the infrequency of his brother changing his sheets.

153. In final submissions Mr Crown said,

“I don’t think the DNA takes our case any further…some cases there is clear DNA, this is not one of those cases. Here we are obliged to rely on the evidence of the complainant.”

DR REEVES

154. Dr Reeves conducted an examination of the complainant on 22 March 2018. There were no injuries or other relevant findings and no swabs were taken.

155. In cross-examination she said that the complainant never described being choked with such force that she was unable to breathe, nor did the complainant report any tenderness around the neck. In questioning from me she said that she did not observe any petechiae bruising around the neck and that it is not unusual to see petechiae bruising when somebody has been choked.

TEXT MESSAGES (Exhibit A)

156. On 26 June 2018 the mobile telephone of the complainant sent a number of text messages to the mobile telephone of the accused. The messages from her phone included the following;

‘Call me

Sex yes or no

Call me please

I miss you

I miss you

Call me please’

157. The person sending the messages described herself as CR Dalzeel. Kyle Dalzeel was the boyfriend of the complainant the night that the alleged offences occurred.

158. The complainant denied sending the messages. She said a friend (niece or nephew) must have had her phone or she was in hospital in Sydney without the phone and could not have sent the messages. I found her explanation unconvincing.

159. Requesting someone to call, missing them and asking whether they want to have sex are not logical responses when it is said that the accused raped her. The text messages call into question the reliability of the complainant. Common sense dictates that a person would not act this way if the allegation was true.

REBECCA MILLER (Exhibit 10)

160. Ms Miller’s statement was tendered in evidence. She said she had known Angus Doyle for about six years. She remembered a couple of years ago in March 2018 Angus came to her house in the morning sometime. He was distressed and she saw he had a fat lip and marks on his face. She asked him what happened and he said something like he picked up a chick online and she came down to his and they were together all night practically having a yarn. Angus said that the girl tried to crack on to him when they were in the bedroom and he said no and pushed her off him and she smacked him in the mouth.

161. Leaving aside the complaint made by the accused, the evidence of injury is consistent with either the complainant punching him to stop him or the complainant punching him because of what he said about her looks compared to her Tinder profile. The evidence does not assist me in determining the ultimate issue.

CROWN SUBMISSIONS

162. The Crown Prosecutor summarised the evidence of the complainant. He submitted that the complainant was not lying or trying to deceive but rather on some occasions she was confused. One example given was her denial of making a telephone call to Mr Dalzeel at 2.58am but, her agreement that he didn’t answer.

163. The Crown submitted that the complaint made by the complainant was an evolving one. First the 000 call then the recorded interview at the Leeton police station and finally the history taken by Dr Reeves.

164. Mr Crown submitted that I should accept the complainant,

“as a witness of truth-maybe some times confused-but a witness who was trying to tell the truth…”

165. Mr Crown analysed the evidence of Trey Doyle highlighting inconsistencies between his evidence and the version given by the accused to the police. Some of those inconsistencies are;

1. Trey Doyle said the complainant sat out the front for a couple of minutes yelling whereas the accused at question 346 denied that she was yelling out the front. He told the police she had stormed off.

2. Trey Doyle said the accused said, “Please tell me you saw that”. The accused made no mention of that conversation in his ERISP.

3. Trey Doyle said the accused said, “She will most likely say that I assaulted her”. That conversation was not mentioned in the ERISP.

4. The complainant had visited in January and stayed overnight. The accused said that he first met the complainant when he met her in the park.

5. The complainant remained on her feet while she was being pushed out the door. There was no dragging. The accused in his ERISP said he was “dragging her…she flopped herself to the ground…she wouldn’t stand up”.

6. Trey Doyle said that the complainant struck his brother as she was been forced out of the door. This was not contained in his statement. The accused in his ERISP did not allege that he was struck as he was pushing the complainant out the door.

7. There was only one laptop in the house and Trey had possession of it according to Trey. The accused in his ERISP said he had the laptop in his bedroom to put on a movie.

166. The Crown submitted that the version,

“The accused gives in his ERISP and the version that Trey gives are completely different. They are at odds. They couldn’t be more at odds. And the Crown says that what Trey is trying to do is trying to assist his brother but it doesn’t work, it backfires, because what you end up with is with a lot of important discrepancies and lies between the two of them.”

167. Mr Crown made submissions about the accused’s ERISP. He made the point that it was odd that they were talking and then on his version for no reason she struck him in the face. This submission must read in light of the entire ERISP. It is clear before the ERISP commenced that there had been discussions between the police and the accused as to what had happened. In that discussion the accused had spoken about her Tinder profile. He was reminded of that discussion by the police at questions 223 to 233. Mr Crown described it as a life line thrown by the police. That is a mischaracterisation. He had clearly spoken to the police about her Tinder profile and raised that with her which resulted in a punch to the face before commencement of the ERISP.

168. He then went through a number of conflicts between the evidence of the complainant and the version given by the accused. He made reference to the 000 call where the complainant appears to be saying to someone “shut the fuck up”. The accused said that after she left he did not go outside. She said that he did come outside and gave her the wallet. She told the 000 operator,

“He’s just gave me my wallet and he went off at me.”

169. The recording is of such quality that I am unable to determine if there is another voice. It does have a degree of consistency with the version given by the complainant.

170. He submitted that the Crown had proved both charges beyond a reasonable doubt.

THE ACCUSED’S SUBMISSIONS

171. Mr Martin submitted that the Crown case was rife with inconsistencies and contradictions. He reminded me of the unsuccessful call to Mr Dalzeel’s mobile phone at 2:58am and that the 000 call was not made until 3:16am. He placed emphasis upon the text messages sent from the complainant’s telephone to the accused's phone on 26 June 2018.

172. He said although there were inconsistencies between the versions given about what took place once the complainant left the accused bedroom those inconsistent versions did nothing to improve the complainant’s reliability.

173. He referred me to the 000 call and the evidence of the Nicole Ingram and Melissa Thornton. He submitted that the complainant did not act in a way that one would expect. Nor did she give any physical description to the 000 operator as to what had happened other than “he’s tryin’ to rape me.”

174. He referred to the evidence of Dr Reeves and the failure of the complainant to complain of having been choked. Nor were there any physical findings consistent with such an allegation.

175. The complainant when she spoke to the police at Leeton Police Station did not allege that the accused masturbated (count 2). Nor did she tell Dr Reeves that the accused masturbated.

176. He referred to the CCTV footage which demonstrated that the complainant had not attended McDonalds as she asserted. He referred to passages of the 000 call where the complainant said she did not say words that were clearly audible and came from the complainant.

177. He placed emphasis upon the text messages sent from the complainant’s phone to the accused’s phone on 26 June.

171. Mr Martin said of the complainant that,

“She is so fundamentally unreliable and has little credibility, given some of the fundamental lies that she’s told that your Honour must have a doubt about the veracity of these claims that make up count 1 and 2.”

CONSIDERATION

179. To find the accused guilty I have to be satisfied beyond reasonable doubt that the complainant was an honest and reliable witness.

180. During her evidence in chief she answered questions on 33 occasions with words to the effect of “I can’t remember”. In cross examination she answered questions with those words on 34 occasions. This suggests unreliability on the part of the complainant. A witness can be honest but unreliable.

181. Experience shows that people may not remember all the details of an event including a sexual offence in the same way each time, that trauma may affect people differently and may affect how they recall events, that sometimes there are differences in the account of a sexual offence and both truthful and untruthful accounts of an event including a sexual offence may contain differences. It is my job as a Judge of the facts in a Judge alone trial to decide whether or not any differences in the complainant’s account are important in assessing her truthfulness and reliability.

182. The following point to unreliability;

1. Her inability to provide details of the person ‘Brittany’ who she said she travelled to Leeton and dined with.

2. Her inability to give a description of Brittany’s car other than it was red.

3. Her inability to provide details of the person ‘Lisa’ who was with her when she met the accused.

4. CCTV footage confirming that the complainant did not attend McDonalds nor did she attend McDonalds in a red car.

5. If she had yelled stop to the accused on a number of occasions as she said she did it would have been heard by Trey Doyle who was in the lounge room.

6. Trey Doyle was woken by a woman yelling “Why don’t you love me?” and then the bedroom door opened.

7. The accused forced the complainant out of the house. I do not accept that she walked to the door and the accused opened the door for her to let her out.

8. The complainant had an expectation that she would stay overnight but was then forced from the house in the early hours of the morning in a town that she was not familiar with, 57 kilometres from Griffith her home town with no public transport or taxi service.

9. The attempt to call her boyfriend at 2:58am. He did not answer. Then there was an unexplained delay as to why she called the police 18 minutes later.

10. Failing to describe in the 000 call any physical actions of the accused other than “he’s tryin’ to rape me.”

11. The failure to complain to Melissa Thornton or Nicole Ingram. She did not exhibit any signs of distress.

12. Telling the 000 operator that nobody was injured but telling police she was choked to the point she could not breathe.

13. Her refusal to accept words she said to the 000 operator.

14. Maintaining that Trey Doyle was asleep when she said on two occasions to the 000 operator that he (Trey) woke up.

15. While on the 000 call walking back to the house to get the house number when initially the operator asked for a street name and a cross street.

16. Telling the 000 operator that the accused was threatening. She conceded in cross examination that the accused never threatened her.

17. When Dr Reeves took a history she did not tell her that she had been choked.

18. Sending text messages to the accused’s phone three months later requesting him to call her, she missed him and whether he wanted to have sex. These are not the actions of someone who has been raped by the accused.

183. I am not satisfied beyond reasonable doubt that the complainant is a reliable witness. The accused gave a version to the police. He denied any wrong doing. If I think that version might be true (which I do) resulting in doubt existing then I must acquit.

184. I find the accused not guilty of both counts.

VERDICTS

185. Count 1:   Not Guilty

186. Count 2:   Not Guilty

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Decision last updated: 22 September 2021