R v Edson
[2013] SADC 139
•28 October 2013
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v EDSON
Criminal Trial by Judge Alone
[2013] SADC 139
Reasons for the Verdict of Her Honour Judge Davison
28 October 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
Accused charged with two counts of rape.
Verdict: Not guilty both counts.
Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) s 9, 13C, 34CA, 34M, 34P; Criminal Law Consolidation Act 1935 (SA) s5, 46,47, referred to.
R v R, R & R, LJ [2008] SASC 35 ; Douglass v R [2012] HCA 34, considered.
R v EDSON
[2013] SADC 139
The accused Jason Lee Edson is charged on Information with two counts of rape.
It is alleged that both offences occurred between 30 March 2012 and 2 April 2012 at Morphett Vale. It is alleged that he had sexual intercourse with KD without her consent, knowing she was not consenting or being recklessly indifferent to the fact that she was not consenting.
The accused elected to have trial by judge alone pursuant to section 7 of the Juries Act 1927. The trial proceeded before me without a jury.
Pre-trial issues
The prosecution made application to lead statements made by KD as an exception to the hearsay rule pursuant to section 34CA of the Evidence Act 1929 (SA) (herein after the Act).
34CA—Statement of protected witness
(1) A court may admit evidence of the nature and contents of a statement made outside the court by a protected witness from the person to whom the statement was made if—(a) the court, having regard to the circumstances in which the statement was made and any other relevant factors, is satisfied that the statement has sufficient probative value to justify its admission; and
(b) —
(i) the protected witness has been called, or is available to be called, as a
witness in the proceedings; and
(ii) the court gives permission for the protected witness to be cross- examined on matters arising from the evidence.
(5) In this section—
protected witness means—
(a) a young child; or
(b) a person who suffers from a mental disability that adversely affects the
person's capacity to give a coherent account of the person's experiences or to
respond rationally to questions.This application was opposed by the accused. I embarked upon a voir dire in relation to this application. The prosecution tendered a series of reports.[1] These reports related to the psychological assessment of KD. Many of them had been prepared for different purposes other than the purpose to be addressed by this Court.
[1] VDP1 Mr M Reid dated 21 May 2013; VDP2 Mr R Sladen dated 16 April 2009; VDP3 Dr S Santoreneos dated 27 March 2013; VDP4 Two reports of Dr M Harbord tendered as a bundle dated 5 June 2009 and 1 May 2013; VDP5 Ms C Partington 9 June 2010; VDP6 Two reports of Dr C Raeside tendered as a bundle and dated 5 May 2011 and 11 July 2011.
A psychological assessment report had been prepared in 2009.[2] At that stage KD was attending school at Gepps Cross Senior School in Year 10. She was subjected to IQ testing. Her IQ score was 63. It was said that there was no significant difference between this score on verbal and performance sub-tests. Her working memory index fell within the borderline range. Since that time a number of other tests have been performed. The IQ results have not changed significantly since that time.
[2] VDP2
In addition to this KD also has epilepsy. Her epilepsy has been an ongoing issue for her for many years. It is treated by medication. Unfortunately her compliance in taking the medication has been quite problematic over a number of years. When she does not take the medication she has a number of break-through seizures. However, she can also have seizures when medicated if placed under significant amounts of stress. I have had regard to a report dated 1 May 2013 that was tendered and marked VDP4 from Mr Michael Harbord, a senior visiting neurologist. He reviewed KD on 24 April 2013 regarding what he described as her mild intellectual disability and her epilepsy. He was of the opinion that it was the non-compliance in taking medication that has been quite problematic for her.
At the request of the Director of Public Prosecutions KD was examined by Mr Mark Reid, a forensic neuropsychologist. He saw KD on 16 May 2013. He had regard to a number of different reports and significantly the interviews that the police had conducted with her on 6 April 2012 and the 27 July 2012 in relation to the alleged offence. He was asked to report on the following question:
Does KD suffer from an intellectual disability that adversely affects her capacity to give a coherent account of her experience or to respond rationally to questions?
A report that Mr Reid prepared dated 21 May 2012 was tendered.[3] Mr Reid was also called to give evidence. During the course of his interview with KD he questioned her about the events that led up to the alleged offence. She provided “a somewhat rambling but consistent history with that outlined in the transcripts of interview”.[4] Mr Reid went on to say in his report - “Although the continuity of her history tended to be somewhat rambling, it was evident that she provided a number of seemingly factual statements which again demonstrated a consistency between the current history given and that outlined in the transcripts of interview”.[5]
[3] VDP1
[4] VDP1 page 5
[5] VDP1 page 5
In response to the question that he had been asked, Mr Reid made the following observations in his report. He said that she suffers from an intellectual disability with a verbal IQ of 63 which is at the bottom of the extremely low range of functioning. In regard to her capacity to give a coherent account of experience or respond rationally to questions he made two observations. The first was that her low level of intellectual functioning throughout her life means that she has not always had an appropriate level of reasoning or understanding of situations, nor has she demonstrated appropriate or adaptive ways of coping with situations as they arise. This, he said, is dependent upon the complexity and familiarity of the situation that she was in. He said that she could become stressed when confronted which often leads to her being aggressive in her response. He said that she does however have the capacity to provide a coherent account of events, albeit somewhat tangential and discursive at times.
Secondly, Mr Reid observed that she suffers from epilepsy that results in seizures. He said these seizures are triggered by stress or a perceived stress. He thought that upon being stressed in a trial situation it could lead to a seizure. Despite these observations he believed that she was capable of providing appropriate information if a gentle, non-pressured and probing approach was adopted by the questioner.
When Mr Reid gave evidence, he confirmed these matters.
HER HONOUR
Q. Did you conclude, having interviewed KD, that she
does suffer from an intellectual disability that
adversely affects her capacity to give a coherent
account of her experience or to respond rationally to
questions.
A. That's an answer that I'd have to qualify if I say 'Yes'
or 'No'. I think she is capable of giving a rational
and coherent account but under appropriate
circumstances.
Q. Do you accept that the intellectual disability that she
suffers from adversely affects her capacity to give a
coherent account.
A. It makes it slightly more difficult for her but I don't
think that's an absolute. I think she is capable of
doing that despite her intellectual level as she did
with myself and seemingly did with Dr Raeside, from what
I read.
Q. Whilst you can't comment on whether or not her account
of what happened was reliable, she certainly seemed to
be giving a coherent account and responding rationally.
A. It's not for me to determine the value of what she is
saying but what I did notice was a very strong
consistency in the facts as she was portraying them to
myself, consistency within the one and a half hours I
spent with her because she often went back over some of
these things and there were no inconsistencies that I
could pick up and the history she gave me was also quite
consistent with what had been gleaned from her in her
transcript of interview and statement. [6][6] TT 32
There was a real question raised by Mr Reid as to whether KD would become so stressed during the course of giving evidence either in chief or cross-examination that she may have an epileptic fit. One of the issues in relation to this was whether she was compliant with her medication at the relevant time. In this regard I made inquiries from Mr Fowler-Walker as to whether she was compliant at the present and was informed that she had said that she was. I proceeded on that basis there being no information to the contrary.
When Mr Reid provided his report and prior to him giving evidence he had been under the impression that KD would be required to come in to court and to face the courtroom situation and perhaps even the accused. It became plain that in the event that she was giving evidence via CCTV and perhaps with some modifications to the usual rules in relation to giving evidence that she could in fact give evidence in the usual way.
The prosecution also tendered the disc containing the interview with KD and the police on the 6 April 2012[7] and the disc of the recording of the interview between KD and the police on 27 July 2012.[8] VDP7 occupied half an hour and VDP8 an hour. The DPP had not provided a copy of the VDP8 to the defence. As a consequence neither Mr Mead, acting for Mr Edson, nor Mr Edson himself had seen VDP8. In that event I determined to view both of these recordings in court in the presence of the accused to give him the opportunity to view the recordings.
[7] VDP7
[8] VDP8
I then viewed the recordings VDP7 and VDP8 in court. It was apparent to me from these recordings that while KD suffered from an intellectual disability she was able to provide a coherent account of her allegations and in all respects responded rationally to the questions that were being asked of her by the police officer. The interviews were conducted in a video room very similar to the CCTV rooms provided by the court. KD did not exhibit any signs of being stressed during the interviews. She did not at any stage appear to be suffering from the effects of her epilepsy disorder.
I heard submissions from counsel in relation to the question of whether or not KD was in the circumstances a protected person pursuant to section 34CA(5) of the Act. I concluded that she was not. I was satisfied taking into account the materials that had been tendered, the evidence of Mr Reid and after watching the DVDs that KD was in fact capable of giving both a coherent account and responding rationally to questions. I was not satisfied that the intellectual disability that she undoubtedly suffers from adversely affected her capacity to do that in this instance.
As I have said my conclusions are based in part upon her presentation in the video interviews that comprised half an hour on one occasion and an hour on another occasion, her performance in respect of them and her capacity to tell a coherent account that was significantly consistent on both occasions and her capacity to listen to and to respond rationally to the questions that were being asked of her by the interviewer.
I was also influenced by the fact that VDP8 took place over an hour without a break and without KD exhibiting any signs of fatigue or illness during that time.
I therefore ruled that KD was not a protected person within the meaning of the Act. I note that KD did in fact give evidence and was cross-examined. She gave a coherent account and responded rationally. She did not appear to be stressed and she did not suffer an epileptic fit or the precursor to a fit.
There was also a notice that was filed pursuant to section 34P of the Act. There was no notice of objection filed to that notice. Mr Mead indicated that he was content to have the matter dealt with at the end of the prosecution case if any of the uncharged acts came into evidence.
An application was made by KD to give evidence by CCTV with a support worker and for the court to be closed. There was also an application for the evidence to be videotaped pursuant to section 13C of the Act. There was no objection to any of these applications and I made the orders in terms of the written application that had been filed.
Trial
The Court of Criminal Appeal have said it is not necessary in a trial heard by judge sitting without a jury to detail every obvious and basic direction of law that ought to be given to a jury.[9] However, I remind myself of the following:
[9] R v R, R & R, LJ [2008] SASC 35 at p 42
1The accused comes into this court with the presumption of innocence in his favour. The law regards him as innocent unless his guilt has been proven beyond reasonable doubt.
2The prosecution bears the burden of proof.
3The charge under consideration must be proven beyond reasonable doubt before I can find the accused guilty.
4The accused does not carry any onus of proof and to the extent that he did put forward a defence he does not have to prove it. It is not sufficient for the prosecution to show a suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to any element of the offence under consideration I must give the benefit of the doubt to the accused and find him not guilty of that charge. If after full and careful consideration I am unable to decide where the truth lies or who is telling the truth the prosecution will have fallen short of proving the case beyond reasonable doubt and my verdict should be one of not guilty.
5In these reasons where I indicate that I am satisfied about a particular fact or event it means satisfied beyond reasonable doubt.
6The accused was not obliged to give evidence but chose to do so. His evidence is to be considered along with the other evidence in the case. He cannot be found guilty unless I find that his evidence is not reasonably possibly true.[10]
7I must assess each witness as to their truthfulness and reliability. I must determine whether I can rely upon the evidence that a witness gives. I can reject or accept all or part of a witness’s evidence.
8I must bring an open and unprejudiced mind to bear. I must make my decision without sympathy, without prejudice or fear and not be influenced by public opinion in relation to the matter.
9The complainant in this matter gave evidence via CCTV and other special arrangements were put in place. I must not allow the making of these special arrangements to influence the weight that I give to the evidence of the complainant nor can I draw any adverse inference against the accused for the fact that these special arrangements have been put in place.
10There was material placed before me that was in the nature of discreditable conduct pursuant to s34P of the Act. This material was before me to show the whole of the alleged conduct and ensure that I had a full and complete picture. I have used it for that purpose. I have not used it for an impermissible purpose.
11There were various people including Kelly Wooding, Jamie Douell and Victor who have been mentioned in the evidence but not called to give evidence. I have not speculated as to what they may have said if they had been called.
12In the event of prior inconsistent statements I will consider them individually to assess whether they affect the reliability of the witness.
[10] Douglass v R [2012] HCA 34.
Elements of the offence
The accused has been charged with two counts of rape. In respect of each of these offences the following elements need to be proven beyond reasonable doubt.
1The accused had sexual intercourse with the complainant.
2That act of sexual intercourse occurred without her consent.
3The accused knew she was not consenting or was recklessly indifferent as to her consent.
Both counts have been particularised as an act of penile vaginal intercourse. They have been particularised in the prosecutor’s opening as the first act of penile vaginal intercourse and the second act of penile vaginal intercourse. The definition of sexual intercourse in section 5 of the Criminal Law Consolidation Act 1935 includes “any activity consisting of or involving penetration of a person’s vagina, labia majora or anus by any part of the body of another person or by any object.” The act of penile vaginal intercourse can therefore constitute sexual intercourse.
The second element of both offences is that the complainant was not consenting at the time of the act of sexual intercourse. Consent to sexual activity is defined in section 46 of the Criminal Law Consolidation Act.
The third element of each offence is that the accused knew she was not consenting or was recklessly indifferent to the fact that she was not consenting to the particular act. Section 47 of the Criminal Law Consolidation Act 1935 is relevant in this regard these offences having been alleged to been committed after the 23 October 2008.
Prosecution case
The prosecutor opened for the Crown. He said that the Crown case was that KD is now 21 years old. On Saturday 31 March 2012 she was living at Morphett Vale. She has an intellectual disability and was under full care at that address. On that day she and her friend Kelly Wooding, who also had an intellectual disability, decided to go to the home of the man that they knew by the name of Jamie to try to get a lift into the city. Kelly knew Jamie and his flatmate Jason Edson, the accused. When the girls arrived at the house they were offered some alcohol and there was some discussion about going into town. Kelly was acting in a sexually promiscuous way towards Jamie but KD did not want to be a party to that type of behaviour. The prosecutor said that KD was forcefully pushed by the accused into his bedroom. He said that the evidence of KD would be that there was some encouragement for this to happen by Jamie and Kelly before they left the house and went into the city. KD it was said would give evidence that she was in the bedroom, the door was locked and that other than going to the kitchen for a brief moment that night she was not let out of the house until the next morning at about 10am when she was driven home by Jamie. The prosecutor said that she would give evidence that the accused had sex with her multiple times and that she told the accused she did not want to have sex to the extent of saying that she had a boyfriend ‘Craig’.
In addition to the charged acts the prosecutor that KD would give evidence that throughout the night the accused inserted his fingers into her vagina and performed the act of cunnilingus upon her.
The prosecutor said KD would give evidence there were two other men in the house and that she called out for help but that no-one came. The prosecution would call one of those two men, the other is now deceased. His evidence was that he could recall KD being there but did not pay much attention and did not hear anyone call out.
The prosecutor said that on the 3 April 2012 KD told her carer Jessica Martin what had occurred on the previous Saturday and it was proposed to call Jessica Martin as an initial complaint witness pursuant to section 34M of the Act.He then said that on the following day, 4 April 2012, KD would give evidence that she told her public guardian Rebecca Norman of further details and that would amount to an elaboration of the initial complaint.
The prosecutor then indicated that he wished to lead the evidence of the complainant having made complaints to the police officer in the form of the formal interviews that occurred as elaborations. He had not at that stage advised the defence that this was his intent. There was some discussion in relation to this and ultimately the prosecutor determined not to lead this evidence as complaint. That was entirely the right approach in my view. The material contained in those interviews did not amount to an initial complaint or an elaboration of the initial complaint within the meaning of the section.
The prosecutor then opened on the record of interview between the accused and the police officer on the occasion of his arrest, some photographs that were taken at the house and a medical examination conducted on the 7 April 2012 at Yarrow Place by a qualified medical practitioner. It was said in the opening that there was a complaint made by KD to the doctor of pain upon urination and a sore right wrist. In addition to this I was advised that there would be agreed facts in relation to the underwear that was seized from the complainant that had been tested for DNA and that there was a finding of sperm located in the underwear. When the DNA from that sample was compared to the sample of the accused there was a statistical rating of > 1 billion:1 that it was the accused’s DNA.
Upon questioning of Mr Fowler-Walker he indicated that the Crown was not relying upon section 46(3)(e) of the Criminal Law Consolidation Act. It was not the Crown case that KD was incapable of freely and voluntarily agreeing to sexual intercourse by reason of her intellectual condition.
The Prosecution Evidence
KD
The complainant was called to give evidence. I gave consideration to section 9 of the Act. Under section 9(1), a person is presumed capable of giving sworn evidence unless a trial judge determines otherwise. Having conducted an inquiry with the complainant I considered that she was capable of giving sworn evidence and the presumption in section 9(1) of the Act was not displaced. She therefore gave sworn evidence.
In evidence in chief the complainant said that in 2012 she was living in a house at Venning Street with two females named Kelly and Roxie. She said that one Saturday night in 2012 she went with her friend Kelly to Jamie and the accused’s house. She said they had walked there. She said that she and Kelly were going to get dropped off by Jamie into the city.[11] She said she and Kelly arrived at the house at night time.
Count 1
[11] TT 104
She said that at the house she was told “no, no, you can’t go, but Kelly can”.[12] This was in reference to going into the city. She said the accused took her into his bedroom and started to take her pants off. She said that she told the accused “What are you doing to me? I don’t want that. Can you stop doing that?”[13] She said he continued to move her pants off and trying to get her “thing wet”.[14] She went on to describe how the accused placed his hand over her shoulders and forced his penis into her vagina. She said she asked him to stop but he did not stop. She gave evidence this happened “about five times”.[15]
[12] TT 104
[13] TT 104
[14] TT 104
[15] TT 105
She said that the bedroom door was closed and that the accused had a lock on his door. She said that there were two other men at the house at the time.[16] She described how she kept yelling out “Help” when she was in the accused’s bedroom but no one came to help. In cross-examination she admitted that she had said previously she had lost her voice because she was yelling so much.[17]
[16] TT 106
[17] TT 145
She said that when she was in the accused’s bedroom, Jamie was driving Kelly in the car. She said Kelly and Jamie were not present when the alleged events occurred.
The complainant gave evidence she had visited the accused’s house on prior occasions. She said she had been there “a few times”.[18] She said that Kelly had introduced her to Jamie and the accused.
[18] TT 106, 128
She said that Kelly, Jamie, the accused and herself had been watching a boxing DVD in Jamie’s room[19] prior to the alleged events. In cross examination she said that they were watching different movies and agreed they watched the movie ‘Scarface’.[20]
[19] TT 107, 129
[20] TT 129
The complainant went onto describe how the accused had forced her into his bedroom. She said the accused had pushed on the upper part of her arms.[21]
[21] TT 108
She gave evidence that when she was in the bedroom the accused wanted to have sex with her and would call her “babe”.[22] She said that the accused started to strip her clothes off her.
[22] TT 108
She said once her clothes were off the accused was “trying to finger me to get me wet in my vagina”.[23] She said she was sitting on his bed and the accused started to lay her down. She said that when the accused first placed his penis inside her vagina she said “can you not do that, please? I don’t want that because I’ve got a boyfriend”.[24] She said the accused did not listen. She said “sperm” came out of the accused’s penis.[25] She gave evidence that the accused wanted to keep going and then he wanted to have a break.
[23] TT 109
[24] TT 109
[25] TT 109
She said she went with the accused to the kitchen and he got some salami. She said she did not see anyone else when she went to the kitchen. She said she then went back into the bedroom. She said the accused told her to “get back in there”.[26]
Uncharged acts
[26] TT 111
KD gave evidence that the accused used his lips to lick her on the vagina.[27] She said this happened on more than one occasion.[28] She said the accused also wanted to kiss her on the lips and she tried to pull her head away so he could not kiss her.
[27] TT 112
[28] TT 112
The complainant said that the accused had asked her to flash her breasts at him. She said that she told him she did not want to because she had a boyfriend. She admitted she did expose her breasts to him, but she said this occurred on a prior occasion and disagreed it took place on the alleged night.[29]
Count 2
[29] TT 148
The complainant gave evidence in relation to a second occasion. She said the accused again touched her with his fingers on her vagina.[30] She said the accused “just wanted to make it a bit wet again…”[31] She said the accused then placed his penis inside her vagina and they had sex. She said the accused placed his hands on her shoulder and then she asked him to stop. She said the accused kept going until he “spermed again”.[32]
[30] TT 111
[31] TT 111
[32] TT 111
The complainant gave evidence that when the accused would leave the bedroom, she would also leave. She said she was not able to leave the bedroom. She said she was told “you are not going home. You are going to stay here”.[33]
[33] TT 113
The complainant was asked some questions in relation to falling asleep in the accused’s bed. She agreed she did go to sleep in the accused’s bed and woke up probably the next morning when it was still dark.[34]
[34] TT 115
She gave evidence that when Jamie returned home the accused allowed her to go home. She said Jamie had dropped her off in the car. In cross examination she said it was the next day when she left the accused’s house.[35] She said Jamie drove and the accused was also in the car.
[35] TT 161
The complainant gave evidence of two separate occasions in which she was in the bedroom with the accused and they had sexual intercourse. However, she said that there were “five times” when the accused put his penis into her vagina.[36] The complainant could not remember saying, on a prior occasion, that the accused had sex with her twice.[37]
[36] TT 116
[37] TT 147
Complaint
The complainant then gave evidence she told Jessica Martin, a care worker, near the staff dining area at her home about the allegations. She said she told Jessica how the accused had forced her to have sex. She said she did not use the words ‘vagina’.[38] She gave evidence she then told her guardian, Rebecca Norman, about the allegations and Rebecca told her to go to the police.[39]
[38] TT 116
[39] TT 116
The complainant said she told the accused that she had a disability and epilepsy and that she would have seizures.[40] She said she spoke to the accused about her disability and her epilepsy the first time she had met him.[41] She said she told him she required seizure medication.
[40] TT 124
[41] TT 125
The complainant gave evidence that she did not have any bruises or sore parts on her body when she was medically examined.[42] She said that it was just her stomach and vagina that were sore after intercourse. She said the accused was pushing on her upper arms during intercourse.[43] She agreed the accused did not hold her down by her wrists.[44] In cross examination the complainant could not remember telling the doctor that the accused had grabbed her wrists during intercourse.[45] She denied having an accident in the shower a couple of days prior.[46].
[42] TT 126
[43] TT 127
[44] TT 142
[45] TT 143
[46] TT 171
In cross-examination the complainant said she arrived at the accused’s house at night.[47] She said she had caught the train into the city with her friend Sarah before visiting the accused’s house.[48] She said it was night-time when she visited the city. She said she had been arrested in the city and she was driven home by the police.[49]
[47] TT 130
[48] TT 133
[49] TT 135
She said she saw Kelly when she returned home and they decided to walk to the accused’s house. She said she wanted to see her friend Sarah whom she originally went to the city with.[50]
[50] TT 135
The complainant gave evidence that she told the accused she had a boyfriend named Craig.[51] She further told the accused that she had been arrested by the police that same night.[52] She said she told both the accused and Jamie that she had been handcuffed by the police.[53]
[51] TT 140
[52] TT 141
[53] TT 142
The complainant admitted that she had a conversation with the accused after having intercourse.[54] She said she talked about the Port Power Football team. She also admitted talking about her friend Kelly and that the accused should be careful of her. She agreed that she said to the accused he should be careful of Kelly because she has sex with guys and then says she has been raped by them.[55]
[54] TT 149
[55] TT 151
Jessica Martin
The prosecution called Jessica Martin. She is an enrolled nurse who is currently employed as a community living options disability support worker.[56] On 3 April 2012 she had a conversation with KD. The conversation commenced at about 8pm. It occurred at the home that KD was living at which was a supported care home. KD told Ms Martin that she was scared of the dark. They got talking from there and KD mentioned that she and Kelly had been in a house and that she had been raped. Ms Martin made notes of the conversation very shortly after it had concluded. She was permitted to refer to her notes and said the following:[57]
[56] TT 176
[57] TT 177, 178
Q. Could you take us through, as best you can,
word-for-word, what you said and what KD said back to
you during the conversation about this allegation of
rape.
A. So we mentioned, well KD mentioned that she was not
feeling safe in the dark. I asked how she made herself
safe when she was out and then she began telling me that
she sometimes stays at people's homes. So then she
mentioned that the previous Saturday night, which is the
31st, said that she'd gone to a friend of Kelly, named
Jamie, and she then mentioned that 'a friend of Jamie's
didn't let me leave and he was all threatening to me and
to Kelly'. She then went on to say that 'He made me
flash my boobs and forced me to stay in his bed all
night and he had S with me. He said that I had a hot C
and took my pants off without my permission. I say that
he raped me'. Then she went on to say 'He put his sperm
inside me, a few times he put his sperm inside me'. So
then I asked if she had talked to the police about it
and made a report and she said that she hadn't, so I
prompted her to do so, and then she said 'I will talk to
my advocate first'.Ms Martin described KD’s demeanour at the time she was speaking to her as quite scared.
Ms Martin was cross-examined. She was asked whether there had been any reference to oral sex - she said “no”. She was asked whether there had been any reference to digital intercourse – she said “no”. She was also cross-examined about whether there was any policy in relation to medication of clients such as KD at that time. She said that she was unaware of any policy and she was unaware of whether KD was spending quite a bit of time away from the residence at that time.
Sandro Tugyi
The prosecution called Sandro Tugyi. Mr Tugyi was living at the same address as the accused at the relevant time. He gave evidence that there were three other people living there. The accused, Jamie Doueal and a man called Victor who has now died. Mr Tugyi gave evidence that he saw a girl named KD at his house on one occasion. He had a feeling that it was on a weekend and during the daytime. He thought maybe afternoon, morning and eventually said around morning to the afternoon. He said he went through to the kitchen and Jason and Kelly and KD were in the hallway and he walked between them. He said “hello” to KD and she did not say anything back to him. He then went back to his bedroom. His bedroom is beside the accused’s bedroom. He said that at no stage did he hear anyone yell out “stop” in fact he did not hear anything from Jason’s room, it was very quiet.[58] He said that he cannot recall what he was doing in his room that night but he has a habit of listening to the radio down low and occupying himself with video games. He gave evidence that he had only seen KD on one occasion at the house.
[58] TT 182
Rebecca Norman
The prosecution called Rebecca Lee Norman. She gave evidence that as at 31 March 2012 she was working as a guardian in the Office of the Public Advocate. She was KD’s guardian at that time. She said that she was the delegated guardian to make decisions in relation to where KD lived, her health, care, medical treatment and lifestyle decisions. She said on Wednesday 4 April she attended at a general practitioner with KD. Prior to meeting the doctor she had a conversation with KD. During that conversation KD told her that on the previous Saturday night she had gone to a house where two males lived. They were associates of the female that KD lived with, Kelly. KD said that the men offered her and Kelly alcohol and were showing their muscles and that Jason then invited KD into his bedroom. She did not want to go into the bedroom but she did because she felt as though she could not say “no”. In the bedroom she said that Jason had done to her what her father did to her. She said that Jason would not let her out of the room until the following morning and that she could not get help because she did not have her mobile phone with her. She described KD demeanour while telling her this as very nervous.
Ms Norman was cross-examined. She said that one of the reasons that she was at the GP was in relation to the medication for epilepsy. At that stage it was the policy of community living options where KD lived that she could not leave the site with a lot of medication. She also said that KD complained of a sore wrist when they attended at the doctors. In relation to that sore wrist KD told her that she had got it by falling over in the shower a week before. She was asked whether KD had said that she was physically taken into the bedroom in any way and Ms Norman said that she could not recall her saying that.
Senior Constable Chilman
The prosecution called Senior Constable Chilman. She arrested the accused on the 6 April 2012. The record of interview was tendered on a DVD.[59] The transcript of the interview was provided as an aide.[60] As the trial progressed it became plain that this interview contained a significant amount of inadmissible material. I invited counsel to consider the material and to agree if possible what was admissible. A further transcript[61] was then tendered. Exhibit P3 has not been edited however I proceeded on the basis that the material as outlined in P2A is the admissible material.
[59] P3
[60] P2
[61] P2A
In the interview prior to the arrest the accused was cautioned and advised that these were allegations in relation to the complainant KD. He was then arrested.[62] The accused spoke to the police about the allegation. He said that KD came around to his house, that Kelly was with her and Kelly was saying “why don’t you go out with her”. He said he did not want to go out with her and then Kelly said “would you have sex with her?” and he said “yeah, I will probably have sex with her” and she stayed overnight and he had sex with her. He said he did not take advantage of her, he did not rape her, she actually spent the night. He went on to say that both Kelly and KD had come to his house on the morning of his arrest and Kelly had then returned a bit later on and said that KD was going to say to the police that he raped her. During the course of the interview the accused on many occasions said that he had slept with KD, he admitted he had sexual intercourse with her on one occasion and she consented:[63]
Q I need you to describe and explain to me in as much detail how it evolves
AI said to you wanna have sex with me and she said ok and she took her pants off, ok her pants and her knickers and then laid on the bed, obviously she took her socks and shoes off first, shoes and socks, and then I had sex with her, ok I didn’t force, I didn’t, there was no, you know no I don’t wanna have sex, if she said no I don’t wanna have sex I would of stopped and not had sex with her. I’m not a stupid person I don’t rape girls. I don’t rape anybody, you know what I mean, I’m not that type of person. I’ve done you know other silly things, stolen and things like that but I’m not a rapist, you know what I mean. I wouldn’t go, I wouldn’t do that, ok.
[62] P2A line 183
[63] P2A line 1651-1663
Agreed Facts
A series of agreed facts were tendered as was an edited statement of Dr M Moy and Ms O Handt.[64]
Defence
[64] P4, P5, P6, P7
Accused’s evidence
The accused gave evidence. He gave evidence in a straightforward manner. He was generally consistent with what he had told the police although there were occasions upon which he was given an opportunity to have included more detail and he did so.
In evidence in chief the accused said that as of March 2012 he was living at Opal Road in Morphett Vale. He said he had been living at this residence for three weeks with three other males named Jamie, Victor and Sandor.[65] He gave evidence that each tenant had their own room. He said he started to befriend one of the male occupants named Jamie.
[65] TT 209
The accused said that on Saturday, 31 March 2012 he was in Jamie’s room when the complaint and Kelly came over. The accused said he was friends with Kelly and he met Kelly on the bus about one week and a half earlier.[66] He said he had not met the complainant before this occasion.[67]
[66] TT 210
[67] TT 210, 235
He said he and Jamie invited both Kelly and the complainant to watch movies with them. He said that they watched his Mike Tyson DVD and the movie Scarface.[68] He disagreed that they watched the movies on an earlier occasion.[69] He said he watched the two movies in Jamie’s room.[70] He gave evidence that he talked to the complainant and Kelly during the movie. He said that the complainant asked if she could be given a lift to the Colonnades and they agreed to take her to Colonnades. He said the complainant was going to the city with her friend Sarah. He said that the complainant was complaining about a sore arm so the accused had given her an ice cream from the freezer to put on her arm. He said he gave her a “choc wedge”.[71]
[68] TT 210
[69] TT 242
[70] TT 211
[71] TT 210
In cross examination the accused said that the complainant complained about a sore arm during the day and again at night.[72] He said the complainant just mentioned she had hurt her arm earlier in the day and she did not mention how she hurt it at that stage.[73] He said at night the complainant was “whinging” about her arm saying that the police had grabbed her by the arm and twisted it.[74]
[72] TT 242
[73] TT 243
[74] TT 243
He gave evidence that after watching the two movies he and Jamie drove the complainant to colonnades. He said that the complainant got out of the car and then he, Jamie and Kelly went to the footy. He said he, Kelly and Jamie watched half a football game at an oval near Noarlunga and then they dropped Kelly home. He said that he and Jamie then went home to watch the rest of the movie Scarface, sit around, talk and listen to music.[75] He said he was not sure what the time was but said it was in the afternoon when he went into Jamie’s room.[76]
[75] TT 211
[76] TT 212
The accused gave evidence that he saw the complainant again, later that night. He said he and Jamie were outside, listening to music, having a couple of drinks. He said he thought they were also smoking “a few bongs” when Kelly and the complainant arrived.[77] He said they were all outside on the veranda. He said he thought he was lifting weights at the time. He said he was drinking VB Beer.[78]
[77] TT 212
[78] TT 213
He said that all four of them were on the veranda for about one hour.[79] He said there “lots of things” talked about on the veranda. He said there was listening to music, doing weights, smoking cannabis and having a drink. [80]
[79] TT 260
[80] TT 261
He gave evidence that there was a conversation regarding sex. He said that Kelly had asked him if he would “f” the complainant. He said he replied “yeah, why not? She’s all right”. He then said he asked the complainant is she would like to have sex with him. He said the complainant said “yes”.[81] In cross examination he said he asked the complainant if she wanted to stay over the night and she agreed she wanted to stay. He said this happened outside.[82] In cross examination he agreed he did not tell police that the complainant had said “yes” when he asked her if she would like to have sex with him when they were on the patio.[83] He disagreed that the complainant said “no” when he asked her for sex.[84]
[81] TT 213
[82] TT 258
[83] TT 238
[84] TT 241
In cross examination the accused said he asked the complainant whether she wanted to have sex with him on the veranda and again in the bedroom.[85] He said he did this “to make sure she was happy to have sex with me”.[86] He said he thought, at one stage, that the complainant was pressured by Kelly when they were on the patio.[87]
[85] TT 236
[86] TT 236
[87] TT 237
He said he then asked the complainant if she wanted to come into his room and she followed the accused to his room. He said that he then shut the door and locked it because he lived in a boarding house. He said he “didn’t want anyone else coming in the room when we had sex”.[88] He said that the lock was a “push button” and you push the button from the inside and it locks.[89]
[88] TT 214
[89] TT 246
In cross examination he said that when they got into the room he said to the complainant “do you want to have sex?” and the complaint said “yes”.[90] He said he then put things in his drawer. He then said to the complainant “take off your pants” or “take off your clothes”.[91] He said that the complainant needed to remove her pants and knickers. He said that the complainant took off her shoes and socks and placed them near his chest of drawers, and she folded her pants before she got onto the bed. He denied removing her clothes.[92]
[90] TT 252
[91] TT 214
[92] TT 248
He said he put some items in his drawer and took his pants off and the complainant was already on the bed.[93] He said that the complainant then got onto the bed and he had sex with her.[94]
[93] TT 252
[94] TT 214
The accused said there was only one act of penile vaginal sexual intercourse. He said “I only had sex with her once”.[95] He denied having sex with the complainant on five occasions.[96] He said he was in the bedroom, and the complainant was on the bed, when he heard a car start. He said he was pretty sure Kelly and Jamie left when he and the complainant were in his bedroom.[97] The accused denied forcing the complainant into his bedroom. He denied forcing her onto his bed.[98] He also denied holding the complainant down on her shoulders during sex.[99] He said his hands were over the top of her and they were on the bed.[100]
[95] TT 247
[96] TT 248
[97] TT 253
[98] TT 215
[99] TT 234
[100] TT 234
The accused said that the complainant did not, at any time when they were having sex, say that she did not want to have sex.[101] He disagreed that the complainant said she did not give her permission because she had a boyfriend. He said “she didn’t say nothing. She was very quiet”.[102] He disagreed that the complainant called out for help why she was in the bedroom.[103]
[101] TT 216
[102] TT 249
[103] TT 249
The accused denied placing his fingers inside the complainant’s vagina during sex.[104] In cross examination he said his fingers may have gone near her vagina when he was inserting his penis into her vagina.[105]
[104] TT 220
[105] TT 248
He agreed that he grabbed the complainant’s breasts in the bedroom.[106]He denied having cunnilingus at any time with the complainant.[107] He said that when he kissed the complainant that she kissed him back.[108] He denied that the complainant tried to pull her head away when he kissed her.[109] He disagreed that the complainant repeatedly asked him to let her go so she could go into town with Jamie and Kelly.[110] He also disagreed he told the complainant to stay in the house or prevented her from leaving the house.[111]
[106] TT 248
[107] TT 220
[108] TT 233
[109] TT 233
[110] TT 247
[111] TT 249
After having sex the accused said he had another cigarette and then left the room to go outside, out the front. The accused said he was pretty sure the complainant went to the toilet and she did not come outside.[112] The accused gave evidence that he might have gone to the kitchen to get a drink but he then returned to the bedroom. In cross examination he said he grabbed some salami from the fridge and ate them with Jatz biscuits.[113] He said when he returned to the room the complainant was still under the blankets. He said he shut the door and he sat on the bed. He said they lay on the bed talking.[114] He said they had a conversation about many issues including where the complainant lives, who lives there, the Port Adelaide Football team, what happened to the complainant in the city and the complainant’s friend Sarah.[115]
[112] TT 216
[113] TT 250
[114] TT 216
[115] TT 216
The accused said after sex that he and the complainant discussed Kelly. He said the complainant told him about Kelly and told him to “be careful of Kelly because Kelly has sex with other guys and says that she was raped.[116]
[116] TT 222
The accused said the complainant told him what happened to her in the city and that she was upset. He said that the complainant said she was in the city with Sarah, they were at the train station and there was mention of alcohol. He said the complainant said she was arrested and the police hurt her head and arm.[117] He said the complainant said she wanted to move in with Sarah and that she was not happy living where she was.
[117] TT 216
He said the complainant showed him a document with a bail condition or “something to say she wasn’t to go back into the city or to hang out with her friend Sarah.[118] He said that the complainant said she wanted to go into the city during the day, but she did not say that she wanted to go at night-time.[119] He said there were no discussions about the complainant not being allowed to go into the city with Kelly.[120] He said that after they had their conversation they went to sleep.[121]
[118] TT 217
[119] TT 217
[120] TT 254
[121] TT 217
The accused gave evidence that he got up the next morning at about 7:30am. He said he went outside and had a cigarette and noticed Jamie’s car was there. He said that Jamie must be home after dropping Kelly off in the city.[122] He said he just sat outside and the complainant eventually came outside. He said he asked the complainant if she would like breakfast or a coffee and she said “no”.[123]
[122] TT 217
[123] TT 218
He said that the complainant asked Jamie if he could drop her home. He said they drove her home. He gave evidence that he sat in the back seat, the complainant was in the passenger seat and that Jamie was driving.[124] He said they pulled up in front of the complainant’s house and he said “catch you later” and he got out of the back seat. He said he gave the complainant a kiss on the cheek and she went up the driveway.[125]
[124] TT 218
[125] TT 219
The accused gave evidence that he next saw the complainant on the morning of Friday, 6 March 2012.[126] This was the day the accused was arrested. He said that the complainant and Kelly had come to his house in the morning and they were on foot. He said both the complainant and Kelly were asking for his last name. He said they said they wanted to add him on Facebook.[127] He said that he did not want to get into Facebook. He said the complainant said “but I’m not trying to get you into trouble or anything”.[128] He said that he thought Kelly had a coffee before they both left.
[126] TT 219
[127] TT 219
[128] TT 219
The accused said that Kelly returned later that day, about lunch time. He said he made Kelly some lunch and they had a conversation. He said that Kelly said the complainant was “at the cop shop saying that the accused raped her”.[129] He gave evidence he said “I never raped her, why would she be doing that for?”
[129] TT 220
The accused said that the complainant mentioned that she had a boyfriend named Craig.[130] He said he thought the complainant told him on the Saturday, during the day. He said the complainant told him that Craig had been cheating on her. He said she was upset about it and said she did not know if she wanted to be with him anymore.[131] He agreed that she told him she had a boyfriend prior to the complaint being in the bedroom.[132]
[130] TT 220
[131] TT 221
[132] TT 241
Cross examination
In cross examination the accused agreed he told police in his record of interview that Kelly accused him of having sex with the complainant behind her back.[133]The accused said that he asked the complainant if she wanted to go into his room and have sex and the complainant said “yes”. He said this conversation occurred on the veranda and Kelly and Jamie were present.[134]The accused said that when he left with the complainant to go to his room Kelly was asking Jamie for a lift into the city.[135] He disagreed that the complainant said at any time prior to the bedroom that she wanted to go into the city.[136]
[133] TT 222
[134] TT 224
[135] TT 224
[136] TT 225
In cross examination the accused agreed he told police that it was about half an hour of the complainant arriving at his house that she was in his bedroom. He said it was within half an hour or hour.[137]
[137] TT 233
In cross examination the accused agreed he was wrong when he originally told the police that the complainant had walked home on foot, rather than by car.[138]
[138] TT 245
The accused agreed he was aware the complainant lived in a house with carers and he assumed that she had a disability. He said he did not know the complainant had epilepsy and she did not discuss her medication with him.[139]
[139] TT 246
The accused agreed he did not tell the police about dropping the complainant off at Colonnades earlier that day.[140]
[140] TT 256
Prosecution address
Mr Fowler-Walker suggested that the accused had been inconsistent between his evidence in court and his record of interview. He said it was such that you should put it to one side and not accept and rely upon the evidence of the complainant. Mr Fowler-Walker did not rely upon the evidence of Mr Tugyi. He said that it appeared that this witness was giving evidence about a different day other than the day of the offence. He also did not rely upon the evidence of Rebecca Norman in respect of the elaboration of the complaint.
Mr Fowler-Walker submitted that the medical evidence that had been presented as part of the Agreed Facts[141] with an annexure statement of Dr Moy attached was neutral. In relation to the bruising on the complainant’s wrist that was observed by Dr Moy, Mr Fowler-Walker said that the Crown no longer relied upon that as having been caused by the accused. In relation to the evidence of complaint to Jessica Martin, what she said to Ms Martin was generally consistent with the evidence that she gave although not in so much detail. It would not be expected that she would give so much detail at that time. Mr Fowler-Walker said there was no explanation for why KD had not complained until 3 April.
[141] P6
Mr Fowler-Walker went through the evidence of KD and submitted that she was consistent throughout her evidence as to the events that had occurred in particular the charged acts but also in relation to the uncharged acts. He said she was consistent in relation to the force that she described had been used to take her to the bedroom and to keep her in the bedroom.
The ultimate submission of Mr Fowler-Walker was that any inconsistencies in the complainant’s evidence do not relate to the charged acts and as such have should not cause me to doubt that the complainant is a credible and reliable witness to the extent that I can rely upon her evidence beyond reasonable doubt in respect of the charge acts.
Defence address
Mr Mead addressed on behalf of the accused. It was suggested that the accused had been frank and forthcoming as he could possibly be both in the interview and his evidence in court. Mr Mead submitted that it would be appropriate that I direct myself in terms of Calides. He suggested the accused as a good witness who was not shaken under cross-examination and there was nothing inherently implausible in what he had to say and his evidence was largely consistent with what he had told the police on the earlier occasion.
Mr Mead suggested that there were difficulties in accepting the complainant’s evidence beyond reasonable doubt. He suggested that he had described a violent and brutal attack where she was in effect unlawfully imprisoned and not let go until the next day. However, the medical evidence does not accord with this. There was no medical evidence in relation to any of the injuries that one would have expected her to suffer if she had been grabbed and manhandled into the bedroom in the way that she describes.
Mr Mead suggested that the conversation that occurred after sexual intercourse had taken place was not consistent with a sexual offence having occurred but rather consensual sexual intercourse. In particular he points to the conversation that the complainant agrees she had with the accused after sexual intercourse in which she told him that her friend Kelly with whom he had been intimate has sex with men and then she says that they have raped her. Mr Mead said it was difficult to fathom how a victim of rape would make such a comment after having just been raped herself. He submits that it is much more consistent with intercourse occurring as the accused said and afterward they lay in bed and spoke before they went to sleep.
Mr Mead also submitted that I could have regard to the timing of the complaint in relation to whether or not it is consistent with her allegations. He acknowledged that the delay of itself could have no effect upon the initial complaint.
He submitted that her evidence in relation to calling out for help on a number of occasions as the events unfolded had to be viewed with some scepticism given that the person who was in the room next door at the time had not heard any such cries.
Mr Mead also submitted that a significant inconsistency that arose from KD’s evidence was the fact that she had told the doctor when she was examined on 6 April that her injury to the wrist had occurred when she was being held by the accused. She at no stage mentioned to the doctor that the injury to her wrist occurred when the police had arrested her. When KD gave evidence she was very plain, in fact to the point of demonstrating how when he had been arrested on the same evening as the alleged rape her wrist had been injured by the police.
Mr Mead made a submission that there is an inconsistency between the evidence of KD and her carer’s evidence in relation to whether or not she could take her medication from the home at this time. KD had given evidence that she had medication in her bag. Ms Norman gave evidence that at this time she understood that KD was not allowed to carry her medication around with her. Further, in relation to the evidence that Ms Norman gave, Mr Mead submitted a further inconsistent statement arose in respect to how KD came to be in the bedroom. Ms Norman said that she was told by KD that she was invited into the bedroom, there was no complaint in relation to her being forced into the bedroom physically. Mr Mead pointed to various other inconsistencies that he said ought to create a doubt in relation to the version given by KD.
Discussion
KD gave her evidence in a pragmatic and straightforward way. It was clear from her evidence and the manner in which she answered the questions that she has an intellectual disability. I have made allowance for the fact that she suffers from an intellectual disability in assessing her demeanour and her behaviour at various times. It was clear that she understood what she was being asked and she answered appropriately. There were some occasions upon which she was unsure and when she was she said so and the questions were re-phrased. However, in answering the questions that were put to her in relation to the events of this night she appeared to be quite clear in her evidence. She complained to her care worker, Jessica Martin, about three days after the event. In her complaint she was generally consistent with her evidence as to what had occurred. There were however some inconsistencies in which she said that the accused had “made her flash her boobs”. She was not medically examined until a week after the event. Upon examination there was no injury consistent with her allegations of having been forced into the bedroom.
The accused gave evidence in a straight forward manner. He denied at all times that the complainant had not consented to the sexual act that he said occurred being one act of penile vaginal intercourse. He maintained that the complainant had verbalised her consent. He denied that any other acts had occurred including digital intercourse and cunnilingus. I have hesitation in accepting his version of events.
Conclusion
I am unable to accept the complainant’s version of events beyond reasonable doubt. I do not find that she is reliable witness. I have at all times taken into consideration that KD suffers from an intellectual disability. I have made allowances for it when I considered that the need arose.
My doubt arises from several different areas including the following. I do not intend this to be an exhaustive list. The first is that she was inconsistent in relation to however many times the accused had sex with her on this particular occasion. She initially told the DPP that he had sex with her on two occasions. She then told the police about a month later that he had sex with her on five occasions and she now says that he had sex with her on five occasions. She was unable to be specific about any of these events other than the first two occasions.
Secondly, the complainant describes being manhandled and being grabbed around the tops of her arms in a forceful manner by the accused and pushed into the bedroom. Upon medical examination there is no injury consistent with the incident having occurred in this way.
Thirdly, when the complainant was examined by Dr Moy she was found to have a wrist injury. This injury was to the medial side of her right wrist. It was said that this was consistent with her history given to the doctor that the accused lay on top of her and held her tightly by the wrist. In evidence KD gave no such account of these events having occurred. Indeed when asked whether and how the accused had held her during any of these acts, she at no stage said that she was held by her wrists. Perhaps more concerning is the fact that she frankly acknowledged that the wrist injury occurred when she had been arrested by the police earlier on the evening when these alleged offences were said to have been committed. KD was quite clear that the injury to her wrist had nothing to do with what occurred with the accused on this particular night. It causes me significant a concern that it appears KD was prepared to blame the injury upon the accused when she spoke to Dr Moy when this was clearly not the case. Given that the prosecutor also opened on this injury having occurred during the course of this incident I can only assume that she had not told the prosecution the true cause of this injury prior to the commencement of this trial.
Fourthly, the complainant gave evidence of an uncharged act of cunnilingus occurred. Forensic testing was done on the underpants that had been worn by the complainant on this particular evening. DNA was extracted from these underpants. That DNA supports the fact that there had been at least one act of penile vaginal intercourse. The underpants gave a positive reaction to a test for acid phosphatase which is present in high levels in seminal fluid. A cutting of the underpants was found to contain a sperm fraction from which a DNA profile was obtained and compared to that of the accused. It was said to match the accused with a statistical weighting of > 1billion:1. There was no evidence of forensic testing for the presence of amylase (an enzyme present in saliva). If an act of cunnilingus had occurred as the complainant alleges then one would expect that a test if conducted could have detected this enzyme.
Fifthly, complainant agrees that she had a conversation with the accused after these offences are alleged to have been committed. This included a conversation about her friend Kelly making false claims of rape. Even making allowances for the intellectual disability of KD such a conversation would seem to have been highly unlikely if the events had unfolded as she has alleged.
Sixthly, the complainant said that she cried out for help doing the alleged offences. She said in cross examination that she had previously said she lost her voice because she had been yelling out so much. The accused denied she had yelled out. The witness Mr Tugyi did not hear anything from the accused’s bedroom that night. His room has an adjoining wall to the accused’s bedroom.
The evidence of the complaint to Jessica Martin is consistent in some respects with what occurred. However there are also inconsistencies that have not been explained. There was no complaint about the cunnilingus nor the digital intercourse, or the kissing. Nor was there any explanation for the timing of the complaint on the 3 April 2012. This is 3 days after the alleged offences. In that time it seems that KD had been living in the supported environment of the CLO home. The fact of the delay of itself is not significant but the lack of explanation for it in these circumstances is concerning.
I am not persuaded beyond reasonable doubt that the accused had sexual intercourse with KD at a time when she was not consenting and when he knew she was not consenting or was recklessly indifferent as to her lack of consent. I therefore find the accused not guilty of both counts.
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