R v Esposito - [2023] SADC 64

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: undefined)
R v ESPOSITO
Criminal Trial by Judge Alone
[2023] SADC 64
Reasons for the Verdict of her Honour Judge Tracey
31 May 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
The accused is charged with one count of rape, contrary to section 48(1)(a) of the Criminal Law Consolidation Act 1935 (SA). The accused admits that sexual intercourse took place but denies the intercourse occurred without the complainant's consent or that he was recklessly indifferent.
Verdict: Not guilty
Criminal Law Consolidation Act 1935 (SA) s 48(1)(a); Evidence Act 1929 (SA) s 34L, referred to.

R v ESPOSITO
[2023] SADC 64

The accused, Thomas Esposito is charged with the offence of rape, contrary to section 48(1)(a) of the Criminal Law Consolidation Act 1935 (SA). It is alleged that on 21 March 2021 he had sexual intercourse with NC when she was not consenting. The accused admits that sexual intercourse occurred but says that he believed NC was consenting. He pleaded not guilty to the offence and elected and to be tried by judge alone. The charge is as follows:
First Count
Statement of Offence
Rape. (Section 48(1)(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Thomas Esposito on the 21^st day of March 2021 at Adelaide, engaged or continued to engage in sexual intercourse with NC by inserting a finger into her vagina without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact that she was not consenting.
Prosecution Case
The offence is alleged to have been committed inside a toilet at Atlantis Bar (Atlantis) in Waymouth Street during the early hours of the morning of 21 March 2021.
On Saturday 20 March 2021 NC and some of her friends went to a bar at Norwood. They later went into the city and eventually met up at Atlantis at around 1:00am on Sunday morning.
While NC was at Atlantis, the accused approached her, said hello, and kissed her on the lips. The accused and NC were known to each other, having met in school, and having previously had consensual sexual intercourse on one occasion in January 2021.
On the prosecution case, NC was walking towards the toilet area of the bar when the accused approached her. She told him she was going to the bathroom and he took her hand and went with her into one of the unisex toilets. The door of the cubicle would not shut properly and the accused stood with his back to NC holding the toilet door closed while she used the toilet. As they both left the cubicle, it is alleged that the accused pushed NC against the wall of the corridor and started kissing her and touching her dress. NC told the accused she wanted to go back to her friends, but the accused pushed her into a different toilet cubicle and locked the door. It is alleged that the accused grabbed NC by her shoulders and pushed her onto the toilet. She again told the accused that she wanted to go back to see her friends and that she was not interested in any sexual activity with the accused. She told the accused “I’m not having sex in the toilet”.[1]
[1] T 37.8.
It is alleged that the accused became more aggressive and kept trying to kiss NC. He forced his knees between her legs so that she could not close them, pulled her underwear out towards him, and inserted a finger inside her vagina. NC felt immediate pain and jumped up, telling the accused that she wanted to go back to her friends and pushed past the accused and left the cubicle.
Before she was able to leave the cubicle, the accused said something to her along the lines of “I pinky promise that I will take you back to your friends. It will be quick”.[2] NC repeated she wanted to go back to her friends and the accused let her go. She was able to unlock the door and went back to her friends who were still inside the bar.
[2] T 37.13-15.
When NC reached her friends, she was observed to be crying and was visibly upset. She and some of her friends immediately left Atlantis. Once outside, NC rang her sister LC and told her what had happened. NC then returned to her home in the company of the two friends she had been with.
The matter was reported to police on 21 March 2021. NC was examined at Yarrow Place and Dr Karen Sandercock observed some swelling and redness to NC’s hymen and vagina vestibule. She also observed bruising to NC’s inner thigh. It is alleged that the underwear NC was wearing at the relevant time was torn during the offence.
The accused was arrested on 26 March 2021 and interviewed by police. During that interview, the accused told police that he had ‘hooked up’ with NC in a toilet cubicle at Atlantis and agreed that he had touched and penetrated NC’s vagina. He told police that the sexual activity was consensual.
Witnesses
The following prosecution witnesses gave evidence:
·NC, the complainant
·JM, a friend of the complainant
·LC, the complainant’s sister
·RS, a friend of the complainant
·Detective Brevet Sergeant Lane-Geldmacher
·Dr Karen Sandercock
Elements of the Offence
The offence of rape is comprised of three elements, each of which must be proved by the prosecution beyond reasonable doubt:
1.The accused had sexual intercourse with NC. Sexual intercourse includes any activity consisting of or involving penetration of a person’s vagina by any part of the body of another person.
2.The accused had sexual intercourse with NC without her consent. Consent means a free and voluntary agreement to engage in sexual activity.
3.The accused knew that NC was not consenting or was recklessly indifferent as to the lack of consent. A person is recklessly indifferent to the fact that another person does not consent to an act, or has withdrawn consent to an act, if he or she –
(a)is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but decided to proceed regardless of that possibility; or
(b) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the other person does not in fact consent, or has in fact withdrawn consent to the act before deciding to proceed; or
(c) does not give any thought as to whether the other person is consenting to the act or has withdrawn consent to the act before deciding to proceed.
General Directions
I direct myself as follows:
·The accused is presumed innocent unless or until his guilt has been proved beyond reasonable doubt.
·The burden of proving the charge lies wholly on the prosecution and the accused is not obliged to prove anything. Nothing short of proof beyond reasonable doubt will do. It is not sufficient for the prosecution to show any suspicion of guilt or even to demonstrate probable guilt. I must be satisfied that the prosecution has proved beyond reasonable doubt each element of the offence.
·At all times it is for the prosecution to satisfy me that NC is both an honest and reliable witness beyond reasonable doubt.
·The accused elected not to give evidence, as was his right. I have not drawn any inference adverse to him because he exercised that right. 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.
·I must assess each witness as to their truthfulness and reliability and must determine whether I can rely on the evidence of a witness. I can reject or accept all or part of a witness’ evidence.
Evidence of NC
At the time of giving her evidence, NC was 23 years of age.
NC said that on Saturday 20 March 2021 she went to a friend’s house and then to Cue Bar in Norwood. She was with her friends Jennifer and JM, arriving at around 7:30pm. She believed she had one Cruiser at Jennifer’s house, a shot of Patron, and a gin and soda at Cue Bar. Her friends, other than JM, were drinking. At around 11:30pm they decided to leave the Cue Bar. Her intention was to meet her friend RS who was working that night at the Wakanda Bar.
Jennifer and JM had come into town with her. She did not recall drinking any alcohol whilst at Atlantis and was feeling quite sober at the time the decision was made to leave. She said she was happy and bubbly. She and JM left to meet RS. At the Wakanda Bar, she ordered a drink which she did not finish. She, JM and RS went back to Atlantis at around 1:30am when she met up with Jennifer again and went inside.
NC said that she was standing with her friends talking while waiting to find Jennifer. The accused came out of the crowd and greeted her with a kiss on the lips in front of her friends and then just walked away. The accused did not say anything to her before or after. At that time, she had not consumed any alcohol at Atlantis but about 20 minutes after the accused kissed her she had a tequila shot. As the bar was very crowded, she, RS and JM went to a private area for roughly 15 minutes.
She needed to use the bathroom but did not know where the toilets were. She exited the private area and was intercepted by the accused who asked her if she was leaving. She told him she ‘needed to pee’.[3] The accused said he would take her, and she followed holding his hand. They ended up in the corridor where there are bathrooms. She had not been in that corridor previously.
[3] T 28.7.
The accused followed her into the bathroom. She said she had not wanted that but did not say anything to him. He was playing with the lock and told her the lock did not work.[4] She used the toilet, got up, readjusted herself and washed her hands. The accused’s back was facing her. She was in the toilet for a couple of minutes. The accused opened the sliding door and they exited into the corridor. As they exited the accused pushed her against the wall and tried to kiss her.[5] He used his hands on her body with force. He had his left hand on her shoulder and his right hand on her left breast. He put his right hand up her dress to move her underwear and to grab her buttocks. She believed he put a thumb inside her underwear. She told the accused she wanted to go back to her friends. His mouth was on her neck. She said she just wanted to go back to her friends and did not kiss him back.
[4] T 30.11.
[5] T 34.21.
After she said she wanted to go back to her friends the second time, the accused pulled her into the cubicle to the left of the bathroom they had first entered.[6] His left arm was on her grabbing her and he shoved her and then dragged her inside. The accused locked the cubicle and pushed her onto the toilet. He held her there with his hand on her neck. His knees were in between her legs. He tried kissing her and she told him she was not having sex in a bathroom, but he did not listen. He pulled her underwear, and she heard it rip. She told him she just wanted to go back to her friends and he grabbed her by the back of her head and said “I pinky promise I’ll take you back to your friends. It will be quick.”[7] He put a finger inside her for a second or maybe two and it hurt causing her to jump.[8] Her legs were open with the accused’s knees keeping them apart. He let go and she pushed past him and ran to her friends.
[6] T 35.16.
[7] T 37.13-15.
[8] T 38.22-28.
She found her friends, JM, RS and Jennifer and walked out with them. When outside she called her sister and told her what had happened.
NC spoke to her sister when she was in the park at roughly 3:00am. She said she was crying when her sister answered the phone. She told her sister “he touched me”[9] and identified that it was the accused who had raped her. RS and JM took her home.
[9] T 43.29.
Later that day, she reported the matter to police and was seen by a medical practitioner at Yarrow Place. During the examination she noticed bruising to her right inner thigh. NC said that the bruises shown in the tendered photographs[10] were not present when she first went to Atlantis on 20 March or the morning of 21 March.
[10] Exhibit P2.
NC said that she had met the accused when they were at school. She was in Year 11 and the accused was in Year 12. They were friends at school, but they never dated. She had kissed the accused twice in Year 11.[11] In January 2021 they had each other on social media and the accused would message her asking to see her. On one occasion she agreed for him to come to her house, and they talked and had sexual intercourse.[12]
[11] T 52.4.
[12] Permission was granted on the prosecution application pursuant to s 34L of the Evidence Act 1929 (SA) to adduce evidence from NC concerning her previous sexual activity with the accused.
NC was asked whether she maintained contact with the accused after she had sex with him. Her evidence was as follows:[13]
[13] T 54-53.
A.    Not in spoken words, no.
Q.    Did you maintain contact with him in another way?
A.      No.
Q.      Did the accused contact you after the two of you had had sex?
A.      He would Snapchat me, yes.
Q.    How often did that happen after the two of you had sex?
A.    On Saturday nights when he would go out.
Q.    You said that this time he’s come to your house was in January?
A.    Yes.
Q.    And its March that you go to the Atlantis Club?
A.    Yes.
Q. Are you able to say how many times he would message you on a Saturday night, between January when he and you had sexual intercourse and March when you were at Atlantis?
A.I believe there was two weekends when he would message, but nothing happened.
Q. On a particular night of the week?
A.Yes.
Q.What night of the week was it?
A.Saturday.
Q.And was it at a particular time?
A.Yes.
Q.What were the thrusts of those messages?
A.Wanting me for sex.
Q.Did you respond to those messages.
A.No.
Q. Did you want to see the accused again?
A.No.
Q.After he'd come to your house and the two of you had had sex.
A.No.
Q.Were you sexually interested in the accused in March 2021?
A.No.
Q.Did you want him to kiss you?
A.No.
Q.At the club?
A.No.
Q.did you want him to touch you in any way when the two of you were in the toilet?
A.No.
NC had drawn a plan setting out the layout of the various rooms inside the Atlantis Club[14] and CCTV footage taken at Atlantis was tendered.[15]
[14] Exhibit P3.
[15] Exhibit P4.
In cross examination, NC agreed that she went to police on 21 March 2021, signing her formal statement on 30 March 2021. She signed two further statements on 10 February 2022, and a further statement a few days prior to trial.[16]
[16] Permission was granted to cross examine NC in relation to social media interactions between the accused and NC in January and February 2021; an occasion where she had sent the accused a photograph and expressly asked him to engage in sexual relations and NC having engaged in consensual sex with another partner a few days before the alleged offending, which NC had disclosed to Dr Sandercock.
NC said she thought that during the years when she and the accused were not in touch with each other, she would ‘possibly’ see what the accused was doing on Instagram. It would have been around January 2021 when they became friends on Snapchat.[17]
[17] T 86.19-23
NC denied she had been sexually interested in the accused in March 2021 but did not remember whether she had been in February 2021.
NC said that when the accused was in Year 12, she was not really close friends with him. She said she possibly sent the accused a photograph of her bare breasts on Instagram. She did not think that she had sent him a photograph of herself with the words “stop by mine to fuck?”.[18] When shown a copy of such a message she said that she could have sent it and agreed that she had asked the accused to have sexual intercourse with her back in 2016 or 2017 but that they had not had intercourse then.
[18] T 77.20.
NC agreed that after they had sex in January 2021, she could have suggested to the accused that they should do it again sometime but did not know why she had done so. NC said she could not exactly remember whether she had never responded to the accused’s messages and agreed it was possible that she had. She could not remember them messaging each other every day between 17 January and until the second half of February 2021 and agreed it was not true that she had not responded to the accused’s messages. She agreed that during the second half of January and February 2021 she could have sent the accused nude photographs or videos of herself, as often as a couple of times a week. NC agreed that there had been 37 days of consecutive Snapchat interaction; between herself and the accused. NC agreed that it was possible that she had sent a video on Snapchat of her using a vibrator and could have sent a video of herself lathering her breasts with soap on 17 February 2021.[19] It was possible that she sent a video of her exposing herself with the caption that she might have been ‘caught’ by her neighbour.
[19] T 95.18-30.
NC agreed that she started communicating with the accused on a daily basis on Snapchat before her birthday on 17 January 2021. She agreed that on a couple of occasions after sending photos or videos of herself to the accused, he would spend responding nude photographs of himself. She maintained that the accused did message her to come see her again. She denied that after they had sexual intercourse in January, the accused had never made any effort to have sex with her again until the night at Atlantis.[20]
[20] T 97.9-13.
In her statement to police on 30 March 2021, NC said she had around three drinks at the Cue Bar, namely one gin and soda and two shots before leaving and heading to the city. When asked whether she had tried to downplay the amount of alcohol she had that night she said that she could not remember and that it was not because of drugs or alcohol that she had a poor memory.
NC was asked how she knew the location of the three toilet areas at Atlantis given her evidence that she did not know where they were and went with the accused. NC said that it was because she saw them on the way out. She denied that the reason why she was happy to go with the accused was because she thought something sexual might happen between the two of them. She wanted the accused in the toilet with her initially to hold the door.
NC said she did not think at the time the accused came up to kiss her that he might be interested in having sex with her that night. It did not occur to her when he said he would come to the toilets with her that he might want to do something sexual. She said she thought he was going to help keep a door shut.[21] NC denied that as of 20 March 2021 she was still sexually interested in the accused.
[21] T 108.23.
NC said she did not remember spending time with the accused kissing inside the corridor but not yet inside the cubicle. She denied that she and the accused kept kissing in the cubicle after she had urinated or that the accused said words something like “the locks not working, let’s try another one”.[22]
[22] T 110.27-28.
NC said that she was able to say that the bruise on her thigh came from the accused holding her in the corridor because it hurt when he did it. With respect to a larger bruise, she said that the accused was holding her thighs open with his legs, and she kept trying to close them.

The CCTV shows the accused and NC walking towards the toilet at 2:30am and coming out of the corridor at about 2:43am.
NC did not recall that a few days before the incident at Atlantis she had sex with someone other than the accused.[23] She agreed she could have told someone at Yarrow Place about having consensual sex about four days before the incident but could not remember that far back. When asked whether it was possible if any bruise or bruises that she gave evidence about came from another incident of consensual sex she said “no, because the sex wasn’t like that”.[24] It was not possible that the soreness in her genital area came from that consensual sex.
[23] She said in re-examination that her answer was with respect to not recalling having told the Dr Sandercock at Yarrow Place.
[24] T 122.35.
NC agreed that there were 37 consecutive days of Snapchat between herself and the accused up to 20 February 2021. She agreed that it had not been true when she said that she did not maintain contact with the accused after she had sex with him in January 2021. She denied she had thought she could get away with lying about Snapchat communications because there would be no record of it in that Snapchat’s disappear after a few seconds after being sent to the user. She said it was because she did not remember.
NC agreed that before the incident at Atlantis, she had suffered from anxiety which was diagnosed by her GP. Although she had never been diagnosed with depression, she thought she was at the time taking antidepressants and that the drugs helped ‘somewhat’.
NC said her memory about the events was better now than at the time she spoke to police.
NC was asked about her statement to police where she had said that the accused’s right hand was against the wall to balance himself and had pulled her underwear with his left hand and inserted a finger of his left hand into her vagina, whereas in her evidence she had said the accused pulled her underwear with his right hand and inserted a finger of his right hand.
In her interview with police and a prosecutor the week before the trial, NC told them that it was a finger on the accused’s left hand that he inserted into her vagina. She denied that anyone had told her in the last week or so that the accused was right-handed.
NC agreed that within a week or so of having sex with the accused in January 2021, Jennifer had told her that the accused and one of his friends had tried to have sex with a female person in the toilets of a nightclub. She gave the following evidence[25]:
[25] T 135-136.
Q.So I just want to explore what was in your mind when Mr Esposito said he will take you to the toilets. This was a person you'd had sex with before, a couple of months earlier, you agree with that.
A.Yes.
Q.On your story he was a person who was continuing to have sex with you, by messages on Snapchat.
A.Yes.
Q.A person who you'd been told was someone who tried to have sex with a female in a nightclub toilet.
A.Yes.
Q.With all that in your head, you knew didn’t you that he might want to have sex with you in the toilets.
A.I figured that if I’d said no he would take that answer.
Q.So you were thinking at the time that he might want to do that, but if you said ‘no’ he might accept ‘no’ for an answer.
A.Anyone would.
Q.Why did you go with him at all.
A.Because I knew him.
Q.So when you said yesterday, ‘Q. So when he said to you that he’d take you to the bathroom, and him having kissed you on the lips earlier, did you think that maybe he’d want to do something sexual with you. A. In a bathroom? Q. In a bathroom. A. No. Q. So you didn’t think that Mr Esposito would try and have sex with you in a bathroom. A. No.’ Was that true or not.
A.Yes.
Q.Didn’t you just say that you thought he might try and have sex with you in a bathroom.
A.No.
Q.So in your head, when you went into the – when you were going to the bathroom with him, did you think he might want to have sex.
A.No.
In re-examination NC said that her answer about not remembering having had consensual sexual intercourse about 4 days before her examination at Yarra Place related to not remembering what she said in the examination. She said she did not remember the last time she had sexual intercourse prior to the night that she went to Atlantis.[26]
[26] T 139.3.
Evidence of JM
JM had known NC since Year 8 at high school. He was at the Cue Bar on 20 March 2021 and met up with NC there. He does not drink alcohol. He went with Jennifer and NC to Atlantis in the city. He said NC had more than one alcoholic drink at Cue Bar but was unable to say how many, and that NC was not drunk in any way, describing her as “light tipsy”.[27] They stayed at Atlantis for around 20 minutes, but NC did not consume any alcohol during that time. He and NC walked to Wakanda where NC had one alcoholic drink and then went back to Atlantis. He saw the accuse approach NC, going up to her and kissing her on the lips. He said that NC seemed quite shocked.[28]
[27] T 145.33.
[28] T 150.20.
JM said there was ‘chit-chat’ between NC and the accused and then the accused proceeded to move onto another part of the outdoor area with some friends, while NC stayed with them.[29] JM thought that NC had maybe one more drink at Atlantis and described her as tipsy.
[29] T 151.2-5.
The group approached the table in the private area. After about 20 minutes, NC got up to go to the toilet. He thought that when NC left she was “quite tipsy”[30] and appeared joyful. He saw NC return and she was hugging Jennifer. NC seemed completely traumatised, she was crying and red and shaking and Jennifer was hugging her and rubbing her back. After Jennifer spoke to them, they stood up and left with NC, while Jennifer remained. They exited Atlantis and NC broke free from their support and sat down on a park bench and made a phone call. He and RS then drove NC home.
[30] T 156.13-14.
In cross-examination, JM said that NC appeared mildly tipsy at the Cue Bar. When she was going off to the toilet, she was quite tipsy. He agreed that over the course of the night NC was more intoxicated at the end than she was at the beginning. JM agreed that he was at the time romantically interested in NC and noticed that when NC first saw the accused, NC sounded excited and said “oh, that’s Thomas”.[31] JM recalled that after the accused had kissed NC and said that she had wanted to go and talk to him, he and the others convinced NC to stay with them instead.
[31] T 157.7.
Evidence of RS
RS had known NC from school and knew of the accused. He recalled NC and JM coming to his work then leaving with them to go to Atlantis. He said that NC had at least two drinks when she was at Wakanda and that when she left she was intoxicated but not ‘uncontrollable’.[32] She was in the early stages of tipsy. He thought that NC consumed two or three alcoholic drinks at Atlantis. He saw the accused approach NC, kiss her and then keep walking. NC told them that she was going to the toilet and left. NC seemed happy and was enjoying the night. When she returned, she was very distressed, appearing very nervous and shaken. NC asked if they could leave and they went straight outside and started walking towards his car.
[32] T 162.27.
In cross-examination RS agreed that even though NC was surprised by the kiss, she did seem flattered by it. He agreed that in his police statement he had described NC as moderately drunk when she arrived at Wakanda Bar. He said that despite using those words, at the end of the night he would describe NC as tipsy in that NC was affected by alcohol to some extent but not to the extent where she lost any of her faculties.
Evidence of LC
LC is NC’s sister. She described the call she received from NC, around 2:00am on 21 March 2021. LC said that her sister was not really speaking but was crying hysterically and could not really be understood. NC told her “he raped me”.[33] NC named the accused and said she had been raped in the bathroom.
[33] T 173.31-34.
When NC arrived home, RS and JM were helping NC out of the car and she was crying hysterically. LC said she noticed red marks on NC’s neck. She said it looked like she had been strangled. She also had a bruise on her thigh the size of a fifty-cent piece on her inner right thigh.[34]
[34] T 175.4-8.
In cross-examination LC said that her sister would not have had any injuries prior to having left the house that night. She described her sister as a careful person who had not complained about any injuries or bruises.[35] She would have known if her sister had a bruise on her leg. When asked to look at the photographs of the bruise, LC said that when she saw it, it was a bit darker.
[35] T 177.14-16.
LC agreed that before the incident her sister had problems with anxiety. She did not agree that her sister was prone to sudden to changes in her mood unless she was made to be upset. She could not recall her sister having bouts of rage. She would only throw things around at people in self-defence.
LC was asked about events in April 2021 where she had told police that NC had bouts of rage, where she threw items around at people along with physical violence. She agreed that she had told police that the bouts of rage had become more prolonged and violent since the assault. LC said that when she told police about the bouts of rage having become more prolonged and violent, she really meant that the bouts had only started since the assault.
Evidence of Lukas Lane-Geldmacher
Detective Brevet Sergeant Lane-Geldmacher (DBS Lane-Geldmacher) saw NC at Hindley Street Police Station on 21 March 2021.[36] He recalled observing a small bruise on NC’s upper right inner thigh. He arranged for a forensic medical examination to be conducted. On 22 March 2021 he and a Detective Tran attended at the accused’s premises. The accused was arrested and interviewed.
[36] T 181.17.
In cross-examination, Brevet Sergeant Lane-Geldmacher agreed that when first interviewed, NC said that the accused had used his left hand in the offending.
When police arrived at the accused’s address, the accused’s father opened the door. His recollection was seeing the accused laying in bed. In the interview the accused said his dominant hand was his right hand and admitted that he used his right hand to penetrate NC’s vagina.[37]
[37] T 211.33-35.
DBS Lane-Geldmacher said that he was present at a proofing of NC a week earlier, during which NC claimed the accused had inserted a finger of his left hand into her vagina. He said he had no recollection of having any conversation with NC about which of the accused’s hand was dominant.
DBS Lane-Geldmacher said that Jennifer declined to provide a statement to police and the security guard seen on the CCTV at Atlantis had not been followed-up.
Evidence of Dr Karen Sandercock
Dr Sandercock was a consultant for Yarrow Place until June 2021. She examined NC on 22 March 2021. During the course of the examination, she took photographs.
NC gave Dr Sandercock a history that she had been subjected to a sexual assault. NC described digital sexual intercourse and said that she had been forcefully pushed with the accused leaning his body weight against her inner thighs so that she could not move. She complained of being held around the throat or neck area. She said that she had been told to ‘shush’ and that when the accused was kissing her, he had his hand on her throat and that she had some trouble breathing, swallowing and talking at that time. She described have felt a bit dizzy. Dr Sandercock said that NC complained that her neck was still sore, that her voice had changed and that she had a sore throat. Dr Sandercock did not observe any injuries to NC’s neck.
NC directed Dr Sandercock’s attention to bruising on her inner thighs. Dr Sandercock noted bruising about mid-way between the groin and the knee, on the inside of NC’s right thigh. She observed a 4x1.5cm yellow brown bruise.[38] There was also a yellow bruise on her upper thigh. She noted that bruise to be on the left thigh as a red, yellow bruise around 1cm. On a genital examination she noted that NC had tenderness in an area where there looked to be some redness and subtle swelling.
[38] T 192.25.
When asked to express an opinion concerning the likely cause or causes of the redness she observed, Dr Sandercock said it was difficult to say that it could be just one cause of that finding and that there was a range of possibilities that the inflammation or redness might have represented.[39] She agreed that what she observed could have been caused by a blunt force trauma that could otherwise be described as somebody putting a finger inside the vagina. There were, however, other potential explanations for the inflammation that she observed. NC had said she had consensual sexual intercourse about four days prior to the examination. Dr Sandercock said that it was possible that a blunt force penetration of the vagina,[40] even if it was consensual, could have caused the sort of injury that she observed.
[39] T 194.37-195.2.
[40] T 195.36
Dr Sandercock said that it was not possible to age a bruise. Bruises can happen from the time of the injury and while they do not necessarily come up at the time of the injury, they can do. The earliest that a bright yellow bruise has been seen in reputable studies is beyond 18 hours after an injury.[41] In her opinion what is seen in the photographs is consistent with the history NC provided, that the accused was forcefully pushing his leg and body weight against NC’s inner thighs so she could not move.
[41] T 197.32.
Dr Sandercock was asked whether someone an hour after an event saw red marks on the neck consistent with fingers, whether this would be expected to be seen in an examination about 30 hours later. Dr Sandercock said that if those red marks had been bruises, she would have expected to have still seen them. With pressure you can get a flush, but a flush is not long lasting, and it would be rare for it to be there for an hour after an event.[42] Dr Sandercock agreed that she could not say what blunt force trauma could have caused the injuries.
[42] T 200.11-16.
The Accused’s Police interview
The accused was interviewed by police at his home on 22 March 2021 at 12.39 am. It was apparent that he had been woken by police. The interview took place in the presence of the accused’s father. During the interview, the accused answered all police questions and elected to proceed without legal advice.
He accepted that much of what NC said occurred was accurate except that NC was not saying no. He said:
But she wasn’t saying no she just said I need to go see my friends and I said yeah that’s fine we can go now like she during the night she was so happy and all over me and not trying to be rude or anything but…[43]
[43] MFI P9 – transcript of Exhibit P8 which is a disk containing an interview with the accused.
The accused told police he had been tipsy but not drunk and had about 10 scotch and cokes over the course of the night. NC made no complaints to him. He had his finger in her vagina for a minute and did not say anything to him at the time and then said, ‘alright let’s go now I’m going to see my friends’ and he replied, ‘alright let’s go’.
He had used a finger on his right hand and is right-handed. He described his behaviour as ‘nothing aggressive just normal, I guess’. NC was not pushing against him or trying to keep her legs closed. He said he did not see the situation as forceful in any way as NC had described NC to police.
He denied having told NG to ‘shoosh’ or promising he ‘would be quick’.
The accused described his history with NC when they had previously ’interacted’ and that she had invited him over to her house.
Prosecution Address
Mr Allen submitted that the prosecution case is based principally but not entirely on the evidence of NC. He accepted that NC’s evidence needed to be scrutinized with care.
The critical issue was whether I accepted NC’s evidence as to the act of digital penetration and the way she described that act occurring in the cubicle, beyond a reasonable doubt.
Mr Allen acknowledged that I would have to consider the change in the evidence between what NC said in examination in chief and what was revealed in cross-examination and suggested I consider whether that evidence in chief was a deliberate strategy to minimise the extent of her relationship with the accused prior to March 2021. While not conceding that it was deliberate, if it had been, NC may have downplayed the extent of her relationship for a number of understandable reasons. Mr Allen conceded that there were some inconsistencies in NC’s evidence and the issue was whether they were understandable in the circumstances here.
As to the change with respect to the hand used by the accused, Mr Allen suggested I may find that to simply be a mistake and urged me not jump to the conclusion that NC was aware that the accused was right-handed. Inaccuracy of that sort by someone assaulted as NC had been, does not necessarily mean there must be a doubt about their credibility and reliability.
NC made a report to police very soon after the alleged offence. The accused imposing himself upon her and acting in a brazen and arrogant manner might give insight into his personality and his behaviour when he is drinking. That sort of behaviour in imposing his will, was, Mr Allen argued, consistent with what happened later on.
NC reacted in a way that would be expected in the circumstances. She had the opportunity to push past him and went straight to her friends. She appeared upset and complained to her sister at the very first opportunity one might expect.
The CCTV footage showed NC moving quite rapidly when coming from the area of the corridor, with the accused trailing behind her and not interacting at all, such that the irresistible inference is that what NC described occurred without her consent.
There was, Mr Allen submitted, some supporting evidence for her version of events. Firstly, NC’s underwear and evidence that during the sexual assault her underwear ripped. The second concerned her injury, that is bruising to her right thigh, which finds some support in the evidence of Dr Sandercock, together with the inflammation to the genital area. However Mr Allen conceded, overall the evidence of Dr Sandercock, was neutral evidence.
Mr Allen argued that I could use the evidence of NC’s distress as corroboration because there was no other explicable reason for her distress.
This is brazened and risky behaviour. There were security officers and other members of staff inside the licensed premises, however, that does not make the version NC gave as intrinsically unlikely. The accused had the opportunity to take advantage of the complainant. Mr Allen submitted that NC was not consenting but nevertheless the accused decided to continue knowing that she was not consenting, thinking that NC would not complain.
Finally, Mr Allen submitted that while I must scrutinise NC’s evidence carefully and conceded that there were some weaknesses in the prosecution case, he urged me to accept NC’s evidence as convincing, given as honestly as she could in the circumstances.
Defence Submissions
Mr Culshaw’s primary submission was that if what the accused told police was reasonably possible, then he did not know NC was not consenting and was not recklessly indifferent as to whether she was consenting.
The accused’s interview should be accepted as a reasonable possibility. He was interviewed out-of-the blue in the middle of the night in circumstances where he was plainly either asleep or in bed, ready to go to sleep and was taken by surprise. He did not try to minimise the sexual activity or minimise his own alcohol consumption. Even if his evidence is not positively accepted, it cannot be excluded beyond reasonable doubt.
Mr Culshaw submitted that NC demonstrated herself to be willing to lie about communications with the accused. When NC was caught out that she had invited the accused to have sexual intercourse with her back high school, there was a shift in her evidence, going from concrete and firm denials to what could only be described as being worried about what defence might have up its sleeve and I should not accept that she had just forgotten about those matters.

It stretched credulity to say that NC was not even thinking that sexual activity might have been on the accused’s mind and stretched credulity to say that at least at that time, NC did not intend to consent to some sort of sexual activity with the accused. Mr Culshaw submitted that while not suggesting that if NC intended to consent two minutes before the offending that she was therefore deemed to have consented two minutes later, at the moment they walked hand-in-hand towards the toilets, there was support for the case that there was actual consent to the sexual activity that followed.
Mr Culshaw referred to NC’s alcohol consumption and the location of the and not knowing where the toilets were at the time she came across the accused. JM’s evidence was that she had been to the toilet in Atlantis earlier that night.[44]
[44] T 148.34.
JM’s evidence should be accepted. He was someone who, apart from being sober, was obviously paying very close attention to NC and to her reactions to situations.
It was concerning, Mr Culshaw submitted, that NC said that her memory was better now than it was two years ago and there was no satisfactory explanation for NC’s evidence having changed regarding the hand used by the accused.
What was described as non-consensual kissing in the corridor, was for some time. The security guard, while not necessarily making constant observations, was there and there were people coming and going all the time. Given the corridor was something of a thoroughfare, what, Mr Culshaw argued, were the chances that the accused was effectively assaulting NC up against the wall.
Thirteen minutes was, Mr Culshaw submitted, an incredibly long time for the story as described by NC, with that amount of time fitting better with what the accused told police about a consensual encounter where the actual sexual penetration lasted maybe a few minutes.
While Mr Culshaw accepted that what happened after the event tells against a consensual sexual encounter in that the complaint was almost immediate, demonstrating consistency of conduct, that does not rescue NC’s credit considering some of the evidence she gave about communications with the accused. There might, Mr Culshaw added, be many explanations for distress. It was possible, Mr Culshaw suggested that NC had a sudden change of heart and that was causing the distress.
NC’s evidence about her bruises was unsatisfactory, given with what Mr Culshaw described as an element of reconstruction. LC was demonstrated to be a partisan witness, who naturally was trying to defend her sister.
Finally, Mr Culshaw submitted, the prior relationship between NC and the accused supported that what happened was consensual and certainly consensual in the accused’s mind. What happened afterwards did lend some slight report to NC, but not enough to rescue the credit of a witness who tried to mislead the court as to the background of the entire relationship. I should not have faith, Mr Culshaw submitted, that NC told the truth about what happened in the cubicle, which cannot be accepted beyond reasonable doubt. Even if I were to accept it, the evidence did not establish that the accused knew or was recklessly indifferent to the issue of consent.
Analysis
It is not disputed that sexual intercourse between the accused and NC took place on 21 March 2021.
To find the accused guilty of the offence of rape, the prosecution must prove beyond reasonable doubt that NC either did not consent to sexual intercourse or withdrew her consent. Consent involves a free and voluntary agreement to participate in sexual activity.
The prosecution must also prove that the accused knew or was recklessly indifferent to the absence of NC’s consent. The accused would be recklessly indifferent if he was aware of the possibility that NC might not be consenting or had withdrawn consent but decided to proceed regardless. He would also be reckless if he was aware of the possibility that NC might not be consenting or had withdrawn consent but failed to take reasonable steps to ascertain whether NC did in fact consent, or had in fact withdrawn consent, before deciding to proceed. He would also be found to be reckless if he did not give any thought as to whether or not NC was consenting or had withdrawn consent before deciding to proceed.
With respect to my assessment of whether NC consented to sexual intercourse, NC’s evidence was that she had told the accused she was not having sex in a toilet, plainly indicating that she did not consent. The accused has denied that was said by NC. NC is not to be regarded as having consented merely because she did not say or do anything to indicate that she did not freely and voluntarily agree to the sexual activity, nor protest or physically resist.
I do not consider anything turns on the presence of others, and particularly a security guard in the corridor outside the toilets. Brazen and opportunistic sexual offending as is alleged here is not confined to isolated or private locations. The medical evidence, as the prosecution has accepted was ‘neutral’, other than to say it did not support LC’s account of the marks on her sister’s neck. I did not find that NC’s confusion as to which hand the accused used to be surprising in the circumstance. Her level of intoxication was not such that her memory of the events should be regarded as unreliable.
While I found that NC gave a generally cogent account of what she alleged occurred at the bar, there were some unsettling aspects in her evidence. Of most significance to me was NC’s inability, for whatever reason, to at least initially acknowledge that there had been communication between herself and the accused, which was of a sexually explicit nature where she was on occasion the instigator.
I accept that there may be any number of reasons as to why someone in NC’s position would be unwilling to disclose the nature and frequency of her communications with the accused between the occasion they had met up in January and the events on 21 March. No doubt NC was embarrassed and regrettably may have been concerned that such communications would portray her in a bad light and that her previous behaviour would be thought of as demonstrating that he had been a very willing participant in what occurred at the Atlantis bar. NC did not give any of those explanations, but rather said she had forgotten about the communications. I found this explanation difficult to accept in circumstances where, as I have set out above, NC had been directly and comprehensively asked by the prosecutor about the nature of any communication during that interval.
The accused did not give a particularly convincing account of what had occurred at Atlantis and did appear to focus on NC asking to return to her friends, something which could be viewed as entirely consistent with NC wanting to get away and return to safety. Given the accused’s alcohol consumption that night, the vagueness of his recollections was perhaps not surprising. This was an opportunistic encounter, about which he may have cared little. It did appear that the accused was genuinely surprised by the allegations and somewhat clueless as to what the fuss was about, perhaps a reflection of not having thought much about whether NC was in fact consenting. On the other hand, I accept that having apparently been woken from sleep by police and the recording commencing while the accused was still in his bed, was not conducive to him applying a clear head to what he was being asked by police.
Despite NC having said she did not know where the toilets were, she was able to identify locations of other toilets in Atlantis when speaking to police. She was aware that the accused had previously ‘tried’ to have sex in a toilet with someone else recently and had thought as she was walking with him, that the accused may want to have sex with her. NC’s immediate complaint and signs of obvious distress so soon after the events were in my view compelling. I remind myself that there may be many reasons why NC complained at a particular time and that distress may have a variety of causes. Here, NC’s complaint while not evidence of the truth of what she said had occurred, was consistent and at a time when it would be expected.
I have however found that concerns regarding NC’s evidence have impacted on my assessment of the credibility and reliability of her evidence. I have found that I cannot be satisfied beyond reasonable doubt that NC told the accused she was not having sex with him as she alleged.
As to recklessness, I accept that what had gone on between NC and the accused in the lead up to the night at Atlantis is relevant to the accused’s state of mind. While the previous sexual encounter in January, the nature of the communications between them thereafter nor the kiss at Atlantis has meant that NC consented to intercourse in the toilet, I must consider the circumstances of the events and the accused’s knowledge of those circumstances. The accused had kissed NC and had at least, from the perspective of other witnesses, appeared to welcome the accused’s attention. NC had willingly walked hand in hand with the accused to the toilet and appeared to at least have tolerated him in the first toilet cubicle. These matters which occurred against a background of NC previously seeking out the accused and communicating with him in the manner she had, has left me to conclude that I cannot be satisfied beyond reasonable doubt that the accused acted with reckless indifference.
I find the accused not guilty.