R v Finau
[2020] ACTSC 155
•16 June 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Finau |
Citation: | [2020] ACTSC 155 |
Hearing Dates: | 9–11 June 2020 |
DecisionDate: | 16 June 2020 |
Before: | Murrell CJ |
Decision: | The accused is not guilty on Counts 1 and 2 and guilty on Count 3. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judge alone trial – Sexual assault in the second degree – Sexual intercourse without consent – “Date rape” |
Legislation Cited: | COVID-19 Emergency Response Act 2020 (ACT) Crimes Act 1900 (ACT) ss 50(1)(a), 52(1), 54(1) Supreme Court Act 1993 (ACT) ss 68B, 68C |
Parties: | The Queen (Crown) Ropati Dominic Finau (Accused) |
Representation: | Counsel P Dixon (Crown) D Berents (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Tu’ulakitau McGuire (Accused) | |
File Number: | SCC 245 of 2019 |
Murrell CJ
Introduction
As a result of amendments to s 68B of the Supreme Court Act 1993 (ACT) (SCA) effected by the COVID-19 Emergency Response Act 2020 (ACT), during the “emergency period” an accused may elect to be tried by a judge alone in relation to “excluded offences”, including those in question in this case: s 68B(3A)(b).
The accused elected to be tried by a judge alone and his legal practitioner certified that he had been advised in relation to the election and had made the election freely.
When arraigned before me sitting as a judge alone, the accused pleaded not guilty to the offences that, on 24 November 2018, he:
(a)inflicted actual bodily harm on the complainant with intent to engage in sexual intercourse with her, contrary to s 52(1) of the Crimes Act 1900 (ACT) (Crimes Act);
(b)engaged in sexual intercourse with the complainant (digital/vaginal intercourse) without her consent, being reckless as to whether she was consenting, contrary to s 54(1) of the Crimes Act; and
(c)engaged in sexual intercourse with the complainant (penile/vaginal intercourse) without her consent, being reckless as to whether she was consenting, contrary to s 54(1) of the Crimes Act.
In order to protect the identity of the complainant, in this judgment her name and those of her close friends have been anonymised: s 74 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMPA).
I set out the principles of law that I apply and the findings of fact that I make for the purpose of arriving at a verdict: s 68C(2) SCA. I also set out the warnings, directions or comments that would have been given to the jury had the matter been tried before a jury: s 68C(3) SCA.
General directions
The charges upon which the accused is being tried are being heard together as a matter of convenience. I must consider each charge separately and return a separate verdict of guilty or not guilty on each charge.
The Crown bears the onus of proving the guilt of the accused beyond reasonable doubt. The accused is presumed to be not guilty of each charge. If I have a reasonable doubt about his guilt on any charge, I must return a verdict of not guilty on that charge.
In order to prove a charge beyond reasonable doubt, the Crown must prove each legal element of the relevant offence beyond reasonable doubt. The Crown need not prove each disputed fact beyond reasonable doubt (unless proof of that fact is essential to proof of a legal element).
In making findings of fact I must rely upon the evidence, i.e. the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense. I must bring an open and unbiased mind to the evidence and consider it dispassionately and logically.
I must consider the reliability of witnesses, looking both at their honesty and the accuracy of their memory. Logically, it may be that a witness should be accepted on one matter but not another; if it is logical to do so, I may accept one part of a witness’s evidence and reject another part of the witness’s evidence.
In this trial, the complainant’s evidence was given by an audiovisual police interview and from a remote room, with a support person present. That is usual practice. I draw no adverse inference against the accused and the evidence is accorded no greater or lesser weight because it was given in that way: ss 49, 57 EMPA.
As the complainant was the critical prosecution witness and the only prosecution witness capable of giving direct evidence of the events in question, I must examine her evidence carefully before deciding whether I accept the key aspects of her evidence beyond reasonable doubt.
Although the charges must be considered separately, the verdicts must be consistent. Consequently, if I doubt the evidence of the complainant (the critical prosecution witness) on one charge, I must consider whether that doubt causes me to doubt her evidence on the other charges.
It is not up to the accused to establish a motive or reason for the complainant to lie or be mistaken. The issue is whether I accept the complainant’s evidence about the critical events beyond reasonable doubt.
The accused decided that he would not give evidence. He was entitled to exercise this aspect of his “right to silence” and I draw no adverse inference from his decision to do so.
In a police record of interview, the accused provided his version of events. I must consider whether that version gives rise to a reasonable doubt concerning any or all charges. Even if I do not positively believe the version given by the accused, I must not convict if that version gives rise to a reasonable doubt about his guilt on any charge.
If the Crown satisfies me that the accused’s version of events could not reasonably be true and I reject the accused’s version, that does not strengthen the prosecution case. It is neutral. I still need to consider whether, on the evidence that I find to be reliable, the prosecution has proved each charge beyond reasonable doubt.
Good character direction
In this case, there was evidence of the accused’s good character. UD, a close friend of the accused who had known him for about four years, said that the accused was normally a shy and introverted person. A police officer gave evidence that the accused has no prior convictions and has not been investigated for any offence of violence or sexual impropriety. In addition, the complainant gave evidence that, on the night in question, it appeared that the accused was motivated to strike up a conversation with her in order to disassociate himself from a disturbance or fight between security guards and a group with which the accused had been socialising.
I must take the character evidence into account in two ways. First, in relation to whether the accused committed the offences, which involve physical and sexual violence. I could rely upon the evidence of good character to reason that a person of such prior good character is unlikely to have committed such offences. Second, I must take the good character evidence into account when considering the truth of the statements that the accused made to police. I could rely upon the good character evidence to reason that a person of such prior good character is unlikely to have lied to the police.
Complaint direction
The complainant’s allegations were first disclosed to her friend DC, probably a little over a week after the events in question. A week or two later, in about mid-December 2018, there was a disclosure to the complainant’s close friend, NL.
This complaint evidence can be used in two ways.
First, it may be relevant to the complainant’s credit. I must consider whether there was a delay in complaint, the terms of the complaints, and whether any delay reflects adversely on the complainant, or whether there were good reasons for any delay. The absence of complaint or delay in making a complaint does not necessarily indicate that the allegation concerning an offence is false. There may be good reasons why a victim of a sexual offence does not make, or hesitates to make, a complaint: s 80B(2) EMPA.
Second, as each of the complaints was made when the events in question would have been “fresh in the memory” of the complainant, each complaint provides some evidence of the facts asserted. However, complaint evidence is not of the same quality and independence as direct evidence.
Count 1—inflict actual bodily harm with intent to engage in sexual intercourse
Section 52(1) of the Crimes Act provides:
52Sexual assault in the second degree
(1)A person who inflicts actual bodily harm on another person with intent to engage in sexual intercourse with that other person, or with a third person who is present or nearby, is guilty of an offence punishable, on conviction, by imprisonment for 14 years.
The elements of the offence are:
(a)By his conduct, the accused inflicted actual bodily harm (more than trivial harm) on the complainant.
(b)The conduct was intentional (deliberate).
(c)The conduct was done with the intention of facilitating sexual intercourse by the accused with the complainant.
Sexual intercourse is defined to include the penetration, to any extent, of the genitalia of a person by any part of the body of another person: s 50(1)(a) Crimes Act.
Counts 2 and 3—engage in sexual intercourse
Section 54(1) of the Crimes Act provides:
54Sexual intercourse without consent
(1)A person who engages in sexual intercourse with another person without the consent of that other person and who is reckless as to whether that other person consents to the sexual intercourse is guilty of an offence punishable, on conviction, by imprisonment for 12 years.
The elements of the offence alleged in Counts 2 and 3 are:
(a)The accused intentionally engaged in sexual intercourse with the complainant.
(b)The complainant did not consent to the sexual intercourse.
(c)The accused was reckless as to whether the complainant was consenting to the intercourse (knew that she did not consent or realised the possibility that she may not be consenting but carried on, not caring one way or the other).
A person is not to be regarded as having consented to a sexual act just because the person did not say or do anything to indicate that they did not consent, or did not protest or physically resist, or did not sustain a physical injury: s 80C EMPA.
As noted at [26] above, sexual intercourse includes the penetration, to any extent, of the genitalia of a person by any part of the body of another person. Consequently, it includes digital/vaginal penetration (as alleged in Count 2) and penile/vaginal penetration (as alleged in Count 3).
Central issues
While I must consider all elements of each offence, it is useful to bear in mind that the central issues raised by defence counsel in opening and closing submissions, and raised by the evidence are:
(a)Count 1: Whether I am satisfied beyond reasonable doubt that the accused inflicted actual bodily harm on the complainant and, if he did so, whether I am satisfied beyond reasonable doubt that he did so for the purpose of facilitating sexual intercourse;
(b)Count 2: Whether I am satisfied beyond reasonable doubt that the accused intentionally engaged in digital/vaginal intercourse with the complainant and, if he did so, whether I am satisfied beyond reasonable doubt that the complainant did not consent to such intercourse and the accused was reckless about consent; and
(c)Count 3: Whether I am satisfied beyond reasonable doubt that the complainant did not consent to penile/vaginal intercourse and, if so, whether I am satisfied beyond reasonable doubt that the accused was reckless about consent.
Complainant’s evidence and related exhibits
As at November 2018, the complainant was 18 years old.
The complainant’s police evidence-in-chief interview was conducted on 5 March 2019.
From May to early November 2018, the complainant had worked with the accused, but they had had only a passing workplace acquaintance.
She gave evidence that, on the night of 23 November 2018, she had been with friends at her Belconnen apartment before going to the Civic area. Her one-bedroom apartment was set up as a studio apartment; the complainant slept on a sofa bed in the living room and used the bedroom as a clothes room. While her friends were present at her apartment having drinks, the sofa bed remained set up as a bed. The complainant had a couple of drinks.
The complainant went to Civic with her friend, S. She wanted to dance, meet friends, and have fun. The complainant and S went to Mooseheads Bar and then to Cube Nightclub. From there, they went to Kokomo’s Nightclub, arriving at about 12:30 AM. By that stage, the complainant had consumed about two or three standard drinks (although it would appear that this included the drinks that she had consumed at her residence).
After about 10 minutes, the complainant and her friend S decided to leave Kokomo’s Nightclub. As they were leaving, they saw the accused with a group of friends. The accused was in the company of a similarly attired group of male companions at a “buck’s night”. Some of the “bucks” (but not the accused) became involved in a fight with bouncers. Seemingly for the purpose of distancing himself from his companions, the accused struck up a conversation with the complainant. At one stage, the accused responded to a suggestion from another person that they were a “cute couple” by putting his arm around the complainant and pretending that they were engaged. He “peck[ed]” her. She “went along with” the “joke”. The complainant told S that it was “fine” for him to socialise with his other friends. S departed. The accused and the complainant went into Kokomo’s Nightclub, purchased a “shot”, and left.
They moved to another bar, Playground, where they danced. The accused kissed the complainant several times and they “made out”. At times he tried to push her up against the wall to kiss her but she resisted, pushing him back and insisting on dancing; at that stage, the complainant noted: “it’s like I’m happy to kiss you but don’t want to be doing that, I don’t want to be doing this intimate version of things like that”.
At the complainant’s suggestion, they went outside. When she began to study her mobile telephone, he pressed her to return inside. He “kept trying to get [her] away from [the phone]”. The accused suggested that they go “somewhere quiet” and she agreed. However, when he proposed that they leave, she said that she wanted to dance and see her friends.
At 11:47 PM the complainant communicated with her friend OT and agreed to join OT at Mooseheads Bar at 12:00 AM. Although the accused said that he did not want to go to Mooseheads Bar, eventually he accompanied the complainant to that establishment. He told the complainant that he did not want her to go inside because he was afraid that she would “leave [him]”. He said that she should “make it quick”. She began to feel uncomfortable. Reluctantly, the accused went into Mooseheads Bar with the complainant. In Mooseheads, the complainant greeted OT and OT’s boyfriend, R. When she said hello to R, the accused ran and grabbed the complainant’s arm and tried to dance with her and kiss her.
The accused kept pressing the complainant to go home. Eventually he said “we’re going now” and she agreed that she was tired and would be dropped home. In evidence, the complainant agreed that, up to the point when they left Mooseheads Bar, she had felt that she had the situation “under control”.
They secured a taxi and drove towards the complainant’s apartment in Belconnen. The accused lay with his head in the complainant’s lap and seemed on the verge of falling asleep. He asked her to pat his head and she did so. The complainant said that it was at that stage that she realised that the accused was very intoxicated. At no stage had she been concerned that he had suffered an injury in a fight, but she did become concerned that he was intoxicated. She denied that she had ever told her friends that the accused had been injured in a fight.
As they were driving towards the complainant’s home, the complainant spoke by telephone with her friend NL for about four and a half minutes. The complainant told NL that she was with someone. In her evidence-in-chief interview, the complainant said that she had told NL that the accused was “creeping [her] out” and that she was “just going to go home”.
After NL asked the complainant who she was with, the following text message exchange occurred (Exhibit 3):
Complainant: Just a guy from [my former workplace]
NL: Oooo have fun
When the taxi arrived at the complainant’s residence, she proposed that it continue to the accused’s residence but he paid the taxi driver and said that he would order another taxi from the complainant’s residence. She offered to wait outside with him for another taxi and told him that she just wanted to go to sleep. However, he said that he needed a glass of water, was feeling sick, and wanted to use the toilet. She agreed to the accused coming upstairs and calling a taxi from her unit. She had the impression that he was drunk; he was struggling to keep his eyes open and seemed to need to hold onto her in order to walk. She was tipsy but not drunk.
After they entered the apartment, the accused went to the bathroom and the complainant began to tidy up the mess associated with the earlier drinks party. The accused saw her cat and said that he didn’t like cats.
The complainant went to the clothes room and changed into comfortable sleeping attire; pyjama pants, a T-shirt, and a fluffy cardigan or dressing gown.
When the complainant came out of the clothes room, the accused was lying on the sofa bed in his underwear. She asked him about an Uber that she had assumed that he was calling and he said “what Uber?”. She asked him to dress and handed his pants to him. Reluctantly, he began to put them on but he then directed her attention to the fact that he had an erection. He grabbed her hand and tried to pull her down and kiss her. She resisted and said that they should call a taxi or an Uber. They were sitting at the end of the sofa bed. She said “I just want to go to bed”.
After grabbing the complainant, the accused pushed her over and pinned her down so that she was lying on the sofa on her back. The accused was trying to kick her tracksuit pants off. They were grappling and the accused managed to kick the complainant’s tracksuit pants to the area of her feet. He tried to push her legs open while she tried to close them.
The complainant said that it was when the accused managed to position his legs between her legs that she “started vocalising”. Until this point, the complainant had not spelled out that she did not want to have sex and she felt that she may have “confused him”. She realised that she needed to tell him “point blank”.
He pinned down her arm. She repeatedly said words to the effect of “get off me”, “this is not happening, stop it” and “no, stop, I don’t want to have sex, I don’t want you to do this” but he ignored her. She was resisting and pushing against his windpipe. She was pushing and slapping him.
The accused became angry and said “I want this, I’m here”. When she objected, he covered her mouth with his hand and she had difficulty breathing. She became frightened because of the violence. She began to feel exhausted because she had been resisting and was of slight build (weighing about 50 kilograms) whereas he had a “rugby player physique” and weighed 80 or 90 kilograms.
The accused used his fingers to locate the complainant’s vaginal area, which he penetrated for “less than a second”. The complainant felt pain and a “tearing” sensation.
The accused positioned himself to insert his penis into her vagina. At that stage, the complainant was able to move to a position where she “shoved” and hit him in the face. He struck her cheekbone and she closed her eyes “the second before it happened” and tensed for the impact. After he struck her, she “shut down” and “froze again” and “he was able to get away with what he wanted to do quite easily”. The accused struck her only once.
The accused penetrated her vagina with his penis, moving in and out for a period of “less than a minute”. It was painful to the complainant.
The sexual intercourse was interrupted by the complainant’s cat jumping onto the sofa bed. The accused reacted strongly, saying that he was terrified by cats. His personality changed; the violence and sex ceased. The accused pulled up his pants.
The complainant estimated that the event took less than 10 minutes.
At 3:13 AM the complainant called a taxi for the accused (Exhibit 8). The accused appeared to be ready to lie down and sleep but the complainant insisted that the taxi was downstairs (although she knew that it was not). She took the elevator with the accused and waited in the street with him for the taxi. During this period, the accused took the opportunity to walk away and urinate. While they were waiting for the taxi, the accused was muttering under his breath and said “I didn’t know you were so kinky”. He did not make that comment inside, immediately after the sexual intercourse.
When the taxi failed to arrive promptly the complainant hailed another taxi, which collected the accused at 3:29 AM. In cross-examination, the complainant said that, while she did not believe that she had hugged or kissed the accused as he entered the taxi, she could not categorically deny it.
The complainant inspected her face and, at about 3.50 AM, she photographed swelling and inflammation to her left upper cheekbone area in the area under her left eye (Exhibit 2). The swelling was increasing, so at 4:08 AM she took further photographs of her cheek area. She also photographed her left shoulder because it felt very sore. Although her wrist was sore, she did not photograph it because no injury was visible. In evidence, she said that the mild swelling to her facial area disappeared within about two days and the bruising faded within a few days.
A day later, on 25 November 2018, the complainant attended a powerlifting competition in which her friend DC was participating. She made up her face to disguise the swelling and discolouration to her cheek. On that day, the complainant made no disclosure to DC.
On 25 November, the complainant took Snapchat photographs of the injuries to her face and superimposed a sarcastic message on one, saying “Thanks dickhead” (Exhibit 6). She did not forward the photograph to anyone. She said that she took and labelled the photograph as a way of coping (i.e. processing her anger).
The complainant “blocked” the accused from accessing her social media accounts and later moved from the Belconnen address, mainly because she did not want the accused to know her whereabouts.
The complainant was worried that she may have acquired a sexually transmitted infection. Soon after the incident, she attended a clinic. She did not complain to the clinic of a sexual assault.
On 30 November, there was a text message exchange between the plaintiff and her friend OT as follows (Exhibit 4):
OT: Soooo how’s the new boy?
Complainant: … That dude was a fucking creep who wasn’t leaving me alone and wouldn’t let me talk to anyone … He legit was grabbing me like stop talking to people
…
OT: Was he?? I didn’t even see that
Complainant: I handled him but he was an asshole …
OT: why wouldn’t he let you talk to people …
Complainant: … He didn’t want me to do Exactly what I would have done I was still super chill about it/him all night it was just annoying as fuck
OT: what would you have done?
Complainant: asked for help to get him away from me
…
On 5 March 2019, the complainant told police that she had spoken to DC about the incident in about the first week of December. She had delayed because she had felt uncomfortable discussing the event and “had to get [her] head around what happened first to be able to talk to him about it”.
In her evidence in court, the complainant said that, one or two weeks after the incident, she had given DC a brief account of events. She thought that the visible injury was no longer visible by the time that she made the disclosure to DC. At that time, her face was still tender, but the main bruising and swelling had disappeared. However, she did indicate to DC the area of her face that had been struck.
In about mid-December she discussed the incident with DC and her close friend, NL.
On 27 December 2018, the complainant was invited to a party by a friend, X. She asked him whether the accused would be attending. When he responded in the affirmative, she said that she would not be able to go. X asked whether anything had occurred between the complainant and the accused, to which the complainant responded (Exhibit 5):
It’s complicated and hard to talk about sorry!
OT’s evidence
OT had little recall of events. On the night of 23 November, OT and the complainant had exchanged messages about being out in Civic (Exhibit 4). OT bumped into the complainant at Mooseheads and they had a very brief conversation while the complainant stood next to the accused. She did not recall that she had seen the accused grabbing the complainant. The conversation lasted for one to two minutes and ended when OT went to the bathroom. When she returned to the dancefloor area, she did not see the complainant and the accused.
DC’s evidence
DC and the complainant were in a relationship until September/October 2018. Thereafter, they remained friends.
DC participated in a powerlifting competition in November 2018. The complainant attended and spoke to him throughout the day. He did not notice anything unusual about her.
Possibly a week after the competition, DC was with the complainant at her apartment in Belconnen. She told him that she had been out with a friend when she had bumped into a workmate. She had wanted to go home. The workmate had been drunk and she had wanted to “shout” a taxi home for him. She had travelled in the taxi with him. As he had wanted to use the bathroom, he had come up to her apartment. The complainant told DC that the accused had “hit her in the face”. As the complainant said this, she indicated an area on her face and DC saw “a bit of bruising” under one eye. He asked her whether that was the result of the hit and she said that it was.
DC probed, asking the complainant what was “really going on” and the complainant disclosed that she had been “raped”. He recalled that she said that:
After everything, it was just as if nothing happened. It was just an abrupt stop. She paid for a taxi or an Uber and he just went home, and I believe she walked him out of the apartment.
The complainant elaborated, saying that, after she had gone upstairs with the accused “he just changed”. She said that she had brought the accused up to her apartment for two reasons. One reason was that he had had a fight. The main reason was that he had said that he needed to use the bathroom.
DC did not press the complainant for further details.
On a later date, possibly in mid-December, DC, NL and the complainant were at the complainant’s apartment. DC gave NL a short outline of the complainant’s earlier disclosure and then left.
NL’s evidence
NL was a close friend of the complainant. On 24 November 2018, she was in Indonesia. She returned to Australia in late November/early December.
In the telephone conversation on 24 November, the complainant said that she was in a taxi travelling from Civic with a workmate. The complainant said words to the effect of:
He is hurt. He had been in a fight … and he was drunk and hurt … [I] felt pressured into [helping him].
NL asked whether the complainant intended to “sleep with” the man and the complainant had said that she did not.
A few days (or up to a week) after she returned from Indonesia, NL caught up with the complainant and observed “a lot of discolouration around her face”, which the complainant had concealed with “really bad make-up” (upon which NL commented). The complainant seemed to be “a bit off”.
The complainant indicated to NL that something had occurred but that she was not comfortable talking about it.
About two weeks after NL returned to Australia, NL was at the complainant’s apartment with the complainant.
The complainant told NL what had happened. She said that the accused had been in a fight and she had felt pressured to help him. He had travelled in a taxi with her to her apartment and she had hoped that he would keep going. However, he had come up to the apartment. She had offered to call a taxi from the apartment and had attempted to persuade him to leave. However, he had “tried to sleep with her”. She had said “no”. He had hit and slapped her (i.e. there was more than one strike). She had had tears and had been “verbal” (“crying … and screaming out”). When she had said “no” he had not listened. The accused had “finished”, got up straight away, and said: “I didn’t know you were so kinky”. The complainant had called a taxi or Uber, accompanied him downstairs and, when the taxi or Uber failed to arrive, she had secured another taxi.
NL said that the complainant was “quite distressed” when recounting these events.
The complainant showed NL photographs of the facial area where she had been struck and the injury in the photographs coincided with NL’s recollection of the area to which “bad make-up” had been applied. The complainant said that she had suffered injuries other than facial injuries but did not elaborate.
UD’s evidence
UD was a friend of the accused. He gave evidence that at 7:45 AM on 24 November 2018, he received a text message from the accused saying:
You can’t say anything
UD telephoned the accused to ask what the message was about. The accused told him that, the previous night, he had gone home with the complainant and “couldn’t get it up”. He sounded normal, not drunk or angry and he seemed embarrassed.
Commencing at 9:05 AM, there was a text message exchange as follows:
Accused: Farrrk Hahahah why did I do it
UD: Cause you have a dick. I prolly woulda fucked her too. But nah thats so gross bro what were you thinking.
Accused: Hahahahaha booooo … Oh just message her she’ll probably be down …
UD: when did you get home
Accused: Fark like 4 or something
UD: Can’t believe she called you a cab
Accused: Bro outrages … like my performance
UD: Prolly good it was her that it didn’t work for …
Accused: Fark bro no one can know hahah
UD: Can’t wait to tell everyone. Just [two friends] I reckon.
Accused: Don’t you dare hahahahahahahahahahaha
…
On Sunday 25 November commencing at 9:23 PM there was the following text message exchange:
…
UD: Round two with [the complainant] last night ?
Accused: Hey let’s never speak on that shit again. Hahahahaha Fark!!
UD: Oh fuck did you?!!?
Accused: But nah no way … But why haven’t I deleted her number
UD: Ahahahahahaha she prolly wouldn’t give you another go after your perform anyways
Accused: Harrrrrrdout HAHA meh
Accused’s police interview
When approached by police on 10 March 2019, the accused agreed to an interview. The interview was conducted on 11 March 2019.
The accused said that he was 24 years old.
He said that he had caught up with the complainant inside Kokomo’s Nightclub and they had grabbed a drink (a shot). He had been out with friends but could not recall whom he was with prior to meeting the complainant; “it was just a normal night out”. Prior to going to the city, he would have been drinking. He had not witnessed a fight that night.
At one point, he and the complainant had been talking at the front of Kokomo’s Nightclub when a “random guy” had commented that the complainant was “pretty”, he had pretended that “she was my missus”, she had “played along” and they had kissed (just a peck).
They talked at the front of Kokomo’s Nightclub. They then went to Playground and were dancing, “kissing and whatnot”. The complainant responded to his kissing and they were “pretty close” when they were dancing. The complainant “looked normal” in the sense that she was not drunk and he “probably looked … more drunk than she did”.
The accused had no recollection of going to Mooseheads Bar after Playground.
After Playground, the next thing that he remembered was going to a taxi rank, where he and the complainant agreed that they should go to her place as he lived with his parents and she lived alone. He thought he would “just see what happens when we get back”. Before arriving at the complainant’s residence, the accused had not thought about how he would get home and had thought that he would probably get a taxi. He had little recall of the taxi ride to Belconnen.
When they arrived at the complainant’s address, she indicated that he should come up to her apartment. He did not think that he would have asked for a glass of water or to use the toilet.
When he entered the apartment, he saw her cat and she picked it up. He was “not big on animals” and dogs and cats “freak[ed] [him] out”. The complainant’s apartment was messy. The complainant folded out a sofa couch into a bed. She told him to have a seat. He removed his shoes and lay back on the sofa bed. He was tired and “wasn’t… completely legless at that point”; he could still walk around and was still coherent.
The complainant went to another room and changed into a “onesie” (or pyjamas). When she returned, he was lying on his back. The accused said that the complainant had not attempted to call a taxi or Uber at that stage.
The complainant initiated sexual interaction. She sat on top of him with her legs straddling him. They were kissing. She performed oral sex on him. He “wasn’t really … that erect”. At some point, she removed her onesie. They had penile/ vaginal intercourse although he was not fully erect. She was on top of him at one stage and, at another stage, he was behind her. He did not ejaculate. She did not say “no”, scream out or display any distress. She was “making … sexual noises … moaning” and directing him to “fuck” her. The sexual intercourse was consensual. He thinks that he stopped the intercourse because he was unable to ejaculate.
The accused did not recall who had removed his pants. He did not hit or strike the complainant and did not digitally penetrate her. He denied that the intercourse stopped when the cat jumped onto the sofa bed.
After the intercourse stopped, they dressed and the complainant suggested that he find his way home. He usually slept at home on a Saturday night. The complainant accompanied him in the elevator to wait for a taxi in the street. She kissed him on the cheek, they hugged, and he said “see you later” and left in the taxi. He could not recall who had ordered the taxi. At that point, there was nothing unusual about the complainant’s face.
The accused said that he had told UD about the incident, including the fact that he had not become erect. He had told UD that he had been with someone from work.
Police asked the accused why he had very limited recall of the details of the night, other than the events in the apartment and he responded that it is easier to recall a sexual interaction than general events of a night out.
When interviewed by the police, the accused suggested that the police should try to obtain CCTV footage of the street area where he had entered the taxi in order to confirm the circumstances in which the couple parted.
During the interview, the accused agreed to show police the text message exchange with UD, conceding that it was “pretty gross”.
Application for direction under s 165B Evidence Act
Police sought CCTV film taken at Kokomo’s, Playground Bar, and Mooseheads, as well as from the Belconnen Labour Club (located near the complainant’s apartment) and from the strata company responsible for the complainant’s apartment building. However, because of the lapse of more than three months between 24 November 2018 and mid-March 2019 (when police were alerted to the allegations), film was no longer available.
In those circumstances, the accused sought a direction under s 165B of the Evidence Act (2011) (ACT). Section 165B relevantly provides:
165BDelay in Prosecution
…
(2) If the court, on application by the defendant, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must tell the jury about the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence.
…
(6) For this section:
(a) delay includes delay between the alleged offence and its being reported; and
(b) significant forensic disadvantage is not to be regarded as being established by the mere existence of delay.
I refused the application because I was not satisfied that the accused had suffered a “significant forensic disadvantage”; the forensic disadvantage suffered by the loss of CCTV film was trivial, if it existed at all.
As to what occurred inside and outside of Kokomo’s Nightclub, the complainant’s version of events was similar to that of the accused; she agreed that there had been significant intimacy between them at that venue. As to what occurred inside Mooseheads Bar, it is most unlikely that film would have provided evidence that, from the accused’s perspective, was more helpful than the evidence of the complainant’s friend OT, who was present and, on 30 November 2018, stated that she had not observed grabbing or controlling behaviour. As to whether there was a hug and kiss at the taxi rank, the complainant did not completely reject that possibility. Further, all the contentious events occurred within the apartment, not in the areas that may have been captured by CCTV cameras.
Assessment of the evidence
The complainant and the evidence supporting her evidence
In the evidence-in-chief interview, the complainant presented as a very credible witness. She appeared to be trying to recall and “relive” events, particularly when describing the positions of herself and the accused as the events unfolded in her apartment. She seemed to be appropriately embarrassed when discussing intimate acts. Consistent with her age of 18 years, she impressed as somewhat naïve. Through the evidence-in-chief interview, she comforted herself by stroking her cat. The complainant’s account to police was lengthy, rambling, and disordered, but nevertheless internally consistent.
In cross-examination, the complainant’s answers were clear and responsive and she did not appear to be defensive. She made concessions against interest. For example, while she said that she did not believe that she had kissed or hugged the accused when he departed in the taxi, she accepted the possibility. She was forthcoming about the fact that she had engaged in relatively intimate conduct including kissing for a prolonged period while she and the accused were at clubs in Civic.
The complainant’s evidence that she was hit by the accused was corroborated by photographs taken 20 to 30 minutes after the accused departed in the taxi and the observations of DC and NL. The complainant photographed her face at 3:50–3:51 AM and again at 4:07–4:08 AM because the swelling had increased in the intervening 15 to 20 minutes, which is consistent with the injury being the result of a blow that occurred when the accused was at the complainant’s apartment.
I have no doubt that, while present in the complainant’s apartment, the accused struck the complainant’s cheek near her left eye, causing the area to become bruised and swollen as depicted in the photographs taken on 24 November. The evidence provides corroboration of an important part of the complainant’s account.
The fact that the complainant photographed her left shoulder in the early hours of 24 November is consistent with her complaint of being pinned down by the accused. Little if any physical injury is apparent in the photograph, but that does not detract from the proposition that, at the time that she took the photograph, the complainant was concerned about a recent injury to her left shoulder.
In the taxi en route to Belconnen, the complainant told NL that she felt under pressure to help the accused and that she did not intend to “sleep with” him. This statement of intention to NL stands in contrast to the accused’s version that, very soon after the couple entered the apartment, the complainant initiated sexual interaction. The fact that she changed into a “onesie” also suggests that the complainant was not interested in sexual interaction.
The conduct of the complainant in the days and weeks following the incident and the timing and manner in which disclosure occurred were completely consistent with what would be expected of an 18-year-old complainant of “date rape”. On the night of 23/24 November, up to the point when the complainant and the accused arrived at Belconnen, the complainant had felt uncomfortable but had failed to appreciate the extent to which the accused’s conduct raised “red flags”. She explained that, when the accused had pressed her for sex, she had felt that she may have fed false expectations and needed to clearly vocalise her objection.
The shock of the incident and sense that she may have been partly responsible would have informed the way in which she responded to the incident. After the incident, the complainant was angry; hence the superimposition of the comment “Thanks dickhead” on the photograph of her face that the complainant took on 25 November, which the complainant described as a means of coping. On 30 November, the complainant communicated to her friend OT that the accused was a “creep” and “asshole”. Within what was probably a matter of days thereafter, she made her first complaint to DC. She was uncomfortable raising the sexual assault and DC had to question her further to extract the disclosure that she had not only been hit but also “raped”. Shortly thereafter, prompted by DC, she made a disclosure to her long-standing and very close friend, NL. On 27 December 2018, the complainant declined a party invitation because the accused would be in attendance and “it’s complicated”.
The complainant’s subsequent concern about the possibility that she had contracted a sexually transmitted infection from unprotected sex was, at least, consistent with an unwillingness to engage in such conduct at the time.
The complainant moved from the Belconnen address because she did not want the accused to know where she lived.
In addition to supporting the complainant’s credibility, the complaint evidence of DC and NL provides some evidence of the facts asserted; in particular, that the accused hit the complainant in the face, “raped” her, and had intercourse with her despite the fact that she said “no” and was “vocal”.
In relation to the complainant’s credibility, the defence raised the following matters:
(a)At Mooseheads Bar, the complainant did not complain to OT concerning the accused’s behaviour and OT did not observe the accused to grab the complainant or engage in controlling behaviour.
(b)The photographs did not establish a serious injury and did not, of themselves, evidence the cause of the injury.
(c)The comment “Thanks dickhead” was inconsistent with the complainant being in a state of fear and trauma.
(d)The messages on 30 November to OT saying “I handled it” and “I was super chill about it” were inconsistent with the complainant having been overborne by the accused and traumatised by the events.
(e)DC said that the complainant had told him that she had been “hit”. NL said that the complainant had spoken of multiple strikes to her face, not just one.
(f)DC and NL said that the complainant had told them that the accused had been in a fight and for that reason she had felt some pressure to help him, whereas the complainant did not say that the accused had been injured in a fight.
(g)NL said that she had been told that, immediately after the sexual encounter, the accused had said “I didn’t know you were so kinky” but the complainant said that that remark was made later, in the street.
(h)The complainant did not tell DC or NL that the sexual interaction was interrupted by the cat jumping on the sofa bed, a novel and striking aspect of her version of events.
(i)The complainant said that the bruising and swelling had disappeared within a matter of days, but DC said that it was still apparent when the complainant made her first disclosure to him and NL said that she observed “a lot of facial discolouration”.
(j)The complainant did not complain to DC on 25 November, when she spoke with him at the powerlifting competition.
(k)The complainant accompanied the accused to the taxi and waited with him for an extended period, even though she had an opportunity to return to her apartment when the accused left her to urinate.
(l)The complainant maintained that the accused was very intoxicated and that the degree of his intoxication only became apparent later in the evening, but on her account he drank only one or two shots during the period of several hours that they were in the company of each other; if anything, he would have become less intoxicated over the period.
(m)When the complainant rang for a taxi at 3:13 AM her voice was controlled and there was no evidence of fear or trauma.
Neither individually nor in combination do the above matters cause me to doubt the complainant’s account of the critical events. Dealing with the above matters in order:
(a)At the time, the complainant considered herself to be in control of the situation. If is quite likely that grabbing or “controlling” behaviour would go unnoticed on a dance floor.
(b)These observations are accepted but do not take the matter anywhere.
(c)By 25 November, the complainant was experiencing anger rather than fear; an entirely legitimate reaction to sexual assault.
(d)OT was not a close friend of the complainant and the exchange occurred before the complainant felt comfortable to open up to anyone.
(e)There is no necessary contradiction in what DC said about the complainant being “hit”. There is contradiction in NL stating that there had been multiple strikes. In any event, the inconsistency does not show exaggeration on the part of the complainant.
(f)The inconsistency suggests confusion about the role of a fight. On the complainant’s account, there was a fight but it had nothing to do with her decision to take a taxi home with the accused.
(g)The fact that NL recalled that the complainant had told her that the accused used the expression “I didn’t know you were so kinky” immediately after the sexual intercourse whereas the complainant said that it was in the street is immaterial; the timing of the remark (as opposed to the content of the remark) may not have been a matter that was particularly striking to NL or the complainant herself; she did not mention it in her police interview and only agreed that the remark had been made when she was cross-examined on it.
(h)With the benefit of hindsight, the assertion that the cat interrupted the sexual interaction may appear novel and striking, but that may not have been the complainant’s view at the time.
(i)With the passage of time, the complainant may well have recalled that the swelling and bruising lasted only a matter of days whereas, in fact, it was still apparent to DC and NL when they saw her. Any tendency on the part of the complainant to understate her injury can only tell in her favour.
(j)I accept that, as at 25 November, the complainant was not yet comfortable to disclose the assault to anyone.
(k)Intuitively, one may expect a victim of sexual assault to abandon the perpetrator as soon as possible. However, people who have just been assaulted do not always behave sensibly. I accept the complainant’s explanation that she stayed in the street because she wanted to resolve the situation; in fact, she was able to do so by hailing a taxi.
(l)On the accused’s own account, he was well affected by alcohol, albeit he was not “legless”.
(m)The complainant’s voice was not hysterical or wavering, but it was very quiet and flat.
The accused’s version
I have concluded that there is no reasonable possibility that the accused’s version of events is true.
The accused’s account of events on the night in question was extremely vague, except in relation to events in the apartment, which he recounted in considerable detail. I accept that the events in the apartment (whatever they were) were more likely to have made an impression upon the accused, but I do not accept that the degree of difference in recall was a reasonable degree of difference. He seemed to take more time to answer the more difficult questions asked by police and to obfuscate, for example, he was unable to give an estimate of the time that the oral sex lasted and how and when she removed her onesie. At points in the interview, he made facial expressions that seemed to be exaggerated.
In several respects, the accused’s account is problematic. According to the accused, the complainant initiated the sexual interaction by straddling his body and performing oral sex on him, persisting despite his partial erection; it seems far more likely that a 24-year-old man would have been the initiator rather than an 18-year-old girl and that an 18-year-old girl would not persist in an exercise that was not yielding results. His statement that, in catching the taxi to Belconnen he had had no expectations and was intending to “just see what happens when we get back”, was disingenuous; in travelling in the opposite direction to his home in Queanbeyan he must have been hoping for a sexual encounter. Having spent a long night with the complainant, immediately after the sexual intercourse, he dressed and left. He said that his decision to leave was partly because he usually slept at his own house on a Saturday night, but this was a Friday night/Saturday morning. Despite being with the complainant for many hours on the night of 23/24 November, he recounted no event that would explain the swelling and bruising to her face that was apparent within 20 minutes of his departure and, indeed, he stated that the appearance of her face was “normal” at that time.
I consider it to be curious that, about four hours after the events, the accused decided to unburden himself to UD about his erectile dysfunction and the impropriety of a sexual encounter with a former workmate, especially as, at the same time, the accused was adamant that no one else should know about it. Perhaps the exchange was a bizarre form of comedic bravado, or perhaps it was an attempt to convey that, despite an attempted sexual intercourse, nothing much had happened (arguably, consistent with the accused’s repeated statements to police that he had not ejaculated). Ultimately, I have attached no weight to this curiosity.
In rejecting the accused’s version of events, I have taken his good character into account. Unfortunately, many persons of prior good character do commit offences and do lie to the police when confronted with serious allegations. It is not uncommon that persons of prior good character sexually assault persons who are members of their family, friends, or otherwise previously known to them. I accept UD’s description of the accused as a shy and introverted person; that is the impression that he gave in the police interview. However, on the accused’s own account, on the night in question he was well affected by alcohol and alcohol can provoke otherwise uncharacteristic behaviour.
Conclusions
Count 1—Inflict actual bodily harm with intent to engage in sexual intercourse
Based on the complainant’s account, which I accept, I am satisfied beyond reasonable doubt that, when the accused had the complainant pinned down and she shoved and hit him in the face, he intentionally struck back, hitting her cheekbone area. The strike inflicted actual bodily harm, being bruising and swelling that must have lasted a week or more because it was observed by DC and NL.
Although I am satisfied beyond reasonable doubt of elements 1 and 2 of this offence, I am not satisfied beyond reasonable doubt of element 3, that the striking was done with the intention of facilitating sexual intercourse by the accused with the complainant. There is a reasonable possibility that it was done with the intention of retaliating for the shoves and hits delivered by the complainant.
Count 2—Sexual intercourse (digital/vaginal intercourse) without consent
In relation to this offence, I harbour a reasonable doubt about the accused’s guilt. This is not because I doubt the complainant’s honesty. Rather, as the penetration was said to last “less than a second”, I am not satisfied beyond reasonable doubt that the conduct was intentional. Further, I am reluctant to conclude beyond reasonable doubt that an event occurred when it was said to last less than a second and the complainant was distressed at the relevant time.
Count 3—Sexual intercourse (penile/vaginal intercourse) without consent
I am satisfied beyond reasonable doubt that the accused is guilty of this offence. I accept the complainant’s evidence as reliable and reject the accused’s account of events. As stated above, the complainant’s account is supported by the photographs of injury and by the complaint evidence.
I am satisfied beyond reasonable doubt that the accused intentionally engaged in penile/vaginal intercourse; there was no dispute that such intercourse occurred. I am satisfied beyond reasonable doubt that the complainant did not consent to the intercourse; rather, the accused pinned her down and forced her to submit. I am satisfied that the accused knew that the complainant did not consent; he must have known because she pushed and hit him and repeatedly said “no”. At the very least, he was reckless about whether the complainant consented; given the complainant’s words and conduct he must have realised that there was a possibility that she did not consent (she was not being “kinky”) but he chose to carry on anyway.
Verdicts
The verdicts are as follows.
(a)Count 1—Inflict actual bodily harm with intent to engage in sexual intercourse: Not guilty
(b)Count 2—Sexual intercourse (digital/vaginal intercourse) without consent: Not guilty
(c)Count 3—Sexual intercourse (penile/vaginal intercourse) without consent: Guilty
| I certify that the preceding one hundred and thirty-five [135] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
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Amendments
17 June 2020 Paragraph [123](e):
Insert “DC said that the complainant had told him that she had been “hit”.”
Paragraph [124](e):
Remove “DC and NL inferred that there was more than one strike; that may have been because the complainant referred to having been “hit”, an expression that would be consistent with more than one strike.”
Insert “There is no necessary contradiction in what DC said about the complainant being “hit”. There is contradiction in NL stating that there had been multiple strikes.”
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