R v G,PM
[2012] SADC 14
•21 February 2012
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v G,PM
Criminal Trial by Judge Alone
[2012] SADC 14
Reasons for the Verdict of His Honour Judge Soulio
21 February 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge alone - accused charged with one count of rape and one count of indecent assault.
Verdict: Not Guilty both counts.
Criminal Law Consolidation Act 1935 (SA) ss 5, 46, 47, 48, 56; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) ss 34CB 34M; Criminal Law Consolidation Act Amendment Act No. 10 of 2008 s 4, referred to.
R v Dossi (1918) 13 Cr App R 158; R v Seigneur (2009) 103 SASR 207; R v H,T (2010) 108 SASR 86; R v S, DD (2010) 109 SASR 46; R v J, JA (2009) 105 SASR 563; R v Davis (1995) 81 A Crim R 156; R v Liddy (No 4) [2001] SASC 152; R v Lane (unreported, Wilcox, Ryan and Higgins JJ, 19 June 1995), considered.
R v G,PM
[2012] SADC 14Background
The complainant, C, was born in 1987 and at trial was 24 years of age. She alleges that in May 2009, when she was twenty one years old, she was digitally raped and indecently assaulted by the accused while she was asleep. The accused, who is C’s biological father, conceded that some sexual activity occurred between them, but asserts that such activity was consensual. He elected for trial by judge alone pursuant to s 7 of the Juries Act 1927 (SA).
The Charges
The Information
The accused is charged with one count of rape pursuant to s 48 of the Criminal Law Consolidation Act 1935 (SA) (CLCA), and one count of indecent assault pursuant to s 56 of the CLCA.
The particulars alleged are that:
First Count
The accused, between the 1st day of May 2009 and the 30th day of June 2009 at Salisbury East, had sexual intercourse with C, without her consent, by inserting a finger into her vagina.[1]
Second Count
The accused, between the 1st day of May 2009 and the 30th day of June 2009 at Salisbury East, indecently assaulted C.
[1] By s 4(2) of the Criminal Law Consolidation Act Amendment Act No.10 of 2008, the definition of sexual intercourse was expanded to include the penetration of a person’s vagina, labia majora or anus by any part of the body of another person or by any object.
An exact date is not alleged in relation to either offence. That is not an essential ingredient of either of the particularised acts or charged offences. The act or occasion alleged must be identified and I must be satisfied the specific act charged is proven beyond reasonable doubt.[2]
The Allegations
[2] R v Dossi (1918) 13 Cr App R 158 at 159-60.
The complainant’s evidence was that the offences were committed on a night in mid 2009, at her unit in Salisbury East. The accused had collected her from the Adelaide Railway Station and driven her to her home, where they consumed alcohol and cannabis.
In relation to Count 1, her evidence was that she fell asleep, and later awoke and found that she was laying across a sofa with the accused behind her using his legs to keep her legs apart, and with his finger inside her vagina.
In relation to the Count 2, her evidence was, that after consuming more alcohol and cannabis, she again fell asleep. Upon waking a second time, she found herself laying on her back on the sofa, with her legs apart, and the accused in front of her rubbing his genitals on her vagina.
Directions
Preliminary Matters
It is necessary to give consideration to the elements of the offences and to the onus of proof. It is necessary to consider the warning which is required given the delay in bringing attention to the matters the subject of the present trial, and the use to be made of the initial “complaint”.[3] It is also necessary to consider the relevant onus of proof in relation to uncharged acts, and the use to be made, if any, of such an act, if proved to the requisite degree.
General Directions
[3] No report was made to police for a little over a year after the event.
The accused is presumed to be innocent unless, and until, his guilt has been proven beyond reasonable doubt. The burden of proving each element of any charge lies wholly on the prosecution. The accused is not obliged to prove anything. The accused, in putting forward a defence is not required to prove the defence. The Crown must disprove it beyond reasonable doubt.
It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. In relation to either charge, I cannot reach a conclusion of guilt by preferring the evidence of the complainant to that of the accused. I must be satisfied that the prosecution has proved beyond reasonable doubt each element of the charge before I could convict the accused of any count on the Information.
It follows that if I am left with a reasonable doubt as to the establishment of any element of a charge, I must give the accused the benefit of that doubt and find him not guilty of that charge.
The accused was not obliged to give evidence but chose to do so. His evidence is to be considered alongside the other evidence in the case. I have given him credit for adopting a course he was not obliged to adopt. In assessing his evidence, and the weight to be given to it, I have approached the task in the same way as I would with any other witness.
I have heard evidence from the accused and the complainant that they consumed significant amounts of alcohol on the day and night of the incident. In considering their evidence I am entitled to take into account, apart from anything else, the amount of alcohol I find that each had consumed, and the intoxicating effect it had on them, for the purpose of determining the reliance to be placed on the evidence of each of them. I am also entitled to have regard to that in considering their behaviour.
I have also heard evidence from the complainant that she consumed significant amounts of cannabis on the night of the incident, and from the accused that he consumed significant amounts of methylamphetamine and cannabis during the day and night of the incident. The use of drugs is only relevant as to the effect it may have on a person’s behaviour, or on their perception of events, or on their recall of events. I must not allow the use of drugs by the complainant or the accused to prejudice me against them.
The evidence presented by the accused and the complainant established two opposing bodies of evidence. They cannot stand together. I am to consider all the arguments made to me on each side bearing on the evaluation of the evidence. If at the end of my deliberations, I am satisfied beyond reasonable doubt, that the prosecution evidence is the truth, my verdict is to be guilty on each count. Alternatively, if I am persuaded by the accused’s evidence, my verdict is to be not guilty on each count. 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 its case beyond reasonable doubt and again, my verdict is to be not guilty on both counts.
I bear in mind that both the accused and the prosecution are entitled to a separate consideration of each count, and that the verdict must be based on a consideration of the evidence relating to each count.
Complaint
Delay in Complaint
The offences against the complainant are alleged to have occurred in May or June of 2009, some three years ago. The first time the matter was raised by the complainant, on her evidence, was some four days after the incident, when she discussed the matter with her neighbour, Ms S. She did not report the matter to police until 8 June 2010, a little over a year after the event.
The provisions of s 34M of the Evidence Act 1929 (SA) apply.[4] Section 34M of the Evidence Act relevantly provides:
(2)In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
[4] R v Seigneur (2009) 103 SASR 207.
In addition, s 34CB of the Evidence Act provides:
(1)A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.
Note—
See Longman v The Queen (1989) 168 CLR 79
(2)If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a) explain to the jury the nature of the forensic disadvantage; and
(b)direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
(3)An explanation or direction under subsection (2) may not take the form of a warning and—
(a) must be specific to the circumstances of the particular case; and
(b)must not include the phrase "dangerous or unsafe to convict" or similar words or phrases.
As has been observed in a number of previous decisions, there may be good reason to explain the delay in the making of a complaint.[5]
… It is commonplace for there to be a substantial delay in the reporting of alleged sexual assaults, especially where the complainant is a child … it seems that many sexual assault victims are unable to voice their experience for a very long time. To adopt a rule that delay simpliciter justifies a stay of criminal proceedings would be to exclude many offences, particularly offences against children, from the sanctions of the criminal law.[6]
[5] For example R v Davis (1995) 81 A Crim R 156 at 158; R v Liddy (No 4) [2001] SASC 152.
[6] R v Lane (unreported, Wilcox, Ryan and Higgins JJ, 19 June 1995) cited in R v Davis (1995) 81 A Crim R 156 at 158-159.
However, if I find that the lapse of time is such that the accused has suffered a significant forensic disadvantage, as the case against the accused essentially consists of the complainant’s unsupported evidence, I would approach each charge on the basis that I should give close scrutiny to the complainant’s evidence.
Complaint Evidence
The prosecution led evidence from both the complainant and Ms S as to the “complaint” made by the complainant. Again, s 34M of the Evidence Act applies and such evidence of the initial complaint by C was led in accordance with that section which relevantly provides:
(1) This section abolishes the common law relating to recent complaint in sexual cases.
Note—
See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(2)…
(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
• when the complaint was made and to whom;
• the content of the complaint;
• how the complaint was solicited;
• why the complaint was made to a particular person at a particular time;
• why the alleged victim did not make the complaint at an earlier time.
(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a) it is admitted—
(i)to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the consistency of conduct of the alleged victim; and
(b) it is not admitted as evidence of the truth of what was alleged; and
(c)there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person, but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5)It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6) In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
While the evidence of complaint to Ms S was admissible but there is a discretion to exclude such complaint evidence.[7] Here, such evidence was admitted. I bear in mind that evidence of the initial complaint to Ms S is only admitted to inform me as to the way in which the allegations first came to light, and potentially as evidence of the consistency, or lack of consistency, of the conduct of the complainant, and the reliability or unreliability of her evidence.[8] It is not admitted as evidence of the truth of what the complainant alleges.
[7] See R v H, T (2010) 108 SASR 86 (per Gray J), R v S, DD (2010) 109 SASR 46 (per Peek J).
[8] R v J, JA (2009) 105 SASR 563 per Duggan J at [93].
Uncharged Act
There was evidence from the complainant that on one occasion other than the charged occasion, the accused indecently assaulted her. The complainant alleged that the incident occurred when she was 16 years old, on a night she was staying at her father’s house in Firle. She said:
I was trying to sleep on this sofa, I am pretty sure – it was leather or something but it was very uncomfortable, very very uncomfortable sofa and later on the night I went and slept on my dad’s bed on the other side… I woke up in the morning and his hand was rested just underneath the elasticity of my underpants, resting on my vagina.
She went on to say that when she woke up the accused was asleep.
That evidence, which alleges an indecent assault prior to the charged events, could be said to throw light on the relationship between C and the accused. It may tend to explain why the complainant did not make an immediate complaint when the second charged incident was said to have occurred. It may explain why the accused expected the complainant’s co-operation and silence at that time.
The evidence of the uncharged incident, along with the evidence going directly to charges, can be used by me in determining what, if any, weight I am prepared to place on the complainant’s evidence. The evidence may assist me in concluding that the complainant’s evidence is reliable. Alternatively, it may assist the defence in showing inconsistency or unreliability or inherent improbability in her evidence, and thereby raising doubt about the charges.
I will only use the evidence of an uncharged act where I am satisfied that such an act occurred. I remind myself that it would be wrong for me to conclude from the other conduct of the accused that he is the sort of person who would be likely to commit the offences with which he is charged. My verdicts must be delivered on the basis of the evidence in relation to the charges themselves.
Elements of the Offences
Count 1 - Rape – s 48(1) CLCA
Rape as defined by s 48(1) of the CLCA is comprised of the following elements or ingredients:
The first element which must be proven is that the accused engaged in sexual intercourse with the complainant. The definition of sexual intercourse includes penetration of the complainant’s vagina, labia majora or anus by any part of the body of the accused or by any object.[9]
[9] Section 5(1) CLCA.
Here, the act alleged to constitute the rape is that the accused inserted his finger into her vagina. On the defence case, no form of sexual intercourse occurred at any time.
The second element requires that the intercourse occurred without the complainant’s consent. On the evidence of the complainant, she was asleep and awoke to find that the accused had inserted his finger inside her vagina.
Section 46(2) of the CLCA defines consent as meaning a “free and voluntary agreement to engage in the sexual activity with that person at that time.”
Section 46(3) of the CLCA provides:
(3)Without limiting subsection (2), a person is taken not to freely and voluntarily agree to sexual activity if—
(a) the person agrees because of—
(i)the application of force or an express or implied threat of the application of force or a fear of the application of force to the person or to some other person; or
(ii)an express or implied threat to degrade, humiliate, disgrace or harass the person or some other person; or
(b) the person is unlawfully detained at the time of the activity; or
(c) the activity occurs while the person is asleep or unconscious; or
(d) the activity occurs while the person is intoxicated (whether by alcohol or any other substance or combination of substances) to the point of being incapable of freely and voluntarily agreeing to the activity; or
(e) the activity occurs while the person is affected by a physical, mental or intellectual condition or impairment such that the person is incapable of freely and voluntarily agreeing; or
(f) the person is unable to understand the nature of the activity; or
(g) the person agrees to engage in the activity with a person under a mistaken belief as to the identity of that person; or
(h) the person is mistaken about the nature of the activity.
Example—
A person is taken not to freely and voluntarily agree to sexual activity if the person agrees to engage in the activity under the mistaken belief that the activity is necessary for the purpose of medical diagnosis, investigation or treatment, or for the purpose of hygiene.
The third element requires that the accused either knew that the complainant 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 intercourse if he:
(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 decides 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 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 or not the other person is consenting to the act [or has withdrawn consent to the act] before deciding to proceed.[10]
Count 2 - Indecent Assault – s 56 CLCA
[10] Section 47 CLCA.
The elements of the offence of indecent assault are, first, that there was an application of force by the accused to the complainant. Any touching or handling is sufficient. Here, the act alleged to constitute the assault is that the complainant woke up to find the accused rubbing his genitals on her vagina.
The second element requires that the application of force must be intentional rather than accidental touching. The third element is that the application of force must be without lawful justification or excuse.
The fourth element is that the assault must be accompanied by, or occur in circumstances of, indecency. I bear in mind that opinions may differ as to what is or is not indecent, but there are types of conduct which by any reasonable standard can only be described as indecent.
The defence did not dispute that if the act alleged by the complainant was committed, the act constituted an act of indecent assault. As I have said, on the defence case the complainant and accused engaged in consensual sexual activity whilst the accused and complainant were both awake, and the charged act did not occur.
Witnesses
The Crown case comprised the evidence of C, her neighbour, Ms S, and her friend, Ms N. The accused gave evidence in his own defence and was the only defence witness.
The Prosecution Evidence
Complainant
At the time of giving evidence the complainant was 24 years of age. During the time particularised in the Information she was therefore 21 years old. The complainant said she became a ward of the State at the age of approximately two years when she was removed from her mother’s custody. When a teenager, she returned to live with her mother. When she was 16 years old she re-established contact with her father, by which time she was living with a friend, Ms N. Her father was then living with his former fiancé, and his son.
The complainant said she initially only saw her father at family events and on special occasions. She said as they became closer she would speak to him on the phone about once a fortnight and had established a positive relationship with him. She visited him at his house, and slept at his house on rare occasions. On one such occasion she alleges that the uncharged act to which I have previously referred occurred.
She said she remained in regular contact with her father, by telephone or in person. She gave evidence that she occasionally attended Narcotics Anonymous meetings with her father, and that she would meet up with him and on occasions they would drink together at a local soccer club.
By May 2009, C was living in her own unit at Salisbury East. During the day, before the two charged acts allegedly occurred, the complainant was at Ms N’s house. During the afternoon she consumed at least three glasses of wine at Ms N’s house. She had planned to catch a train to the city and then catch a connecting bus home. She gave evidence that she spoke to the accused by telephone and he told her he could collect her from the train station and take her home.
She left Ms N’s house at approximately 7pm before meeting the accused in town. She said the accused took her to his own house for a short period before taking her home to her unit. She said at her house they drank wine and smoked approximately ten “bongs” containing cannabis, over a period of about two to three hours. She said that the accused appeared to have a lot of energy; he appeared frantic, was constantly moving and was very talkative.
On the complainant’s evidence, at some point during the evening, prior to the charged acts occurring, the accused suggested that they needed to obtain more marijuana. The two of them left the unit, travelling in the accused’s car, and attended a house, although she could not recall the location of that house. After obtaining cannabis the accused suggested she drive. She exited the passenger seat and walked around to the driver’s side of the car to get into the driver’s seat. She said that as she did so the accused “tapped me on my arse and said to me that I really don’t know how sexy I am.”
After driving for a short period, the complainant said the accused suggested she sit on his lap in the driver’s seat, and that they reverse the car together. She said that when attempting to reverse the car, whilst sitting on the accused’s knee, the car travelled over a kerb and collided with a tree, breaking the rear window.
After returning to the complainant’s house, they continued to drink alcohol and smoke cannabis. At some point, while fully dressed, she fell asleep on a sofa in the living area. She said that she woke feeling sexually aroused. She said her pants were down to her ankles and the accused was behind her. His leg was entwined with hers, holding her legs up straight so that her legs were apart and his finger was inside her vagina. She said the accused was whispering into her ear things such as “You like that bitch” and “I know you like it, it feels good”. When asked if she said anything to the accused, she said she did not because she was scared and shocked. She removed herself from the sofa for a short period, before returning, and again falling asleep. That digital penetration while she was asleep constitutes Count 1.
She said she had fallen back to sleep on the sofa. She woke again to find that her lower back and buttocks were on the very edge of the sofa. Her pants had been taken off and her legs were apart. The accused was standing between her legs rubbing his genitals on her vagina. That, on the prosecution case, constitutes Count 2, the charge of indecent assault.
She said that she didn’t go back to sleep but rather stayed awake and pretended as though nothing had happened.” She said her father did nothing and didn’t say anything about it. She said that after some time, however, the accused knelt on the floor near her on the sofa. He started crying and apologising about being a reformed drug addict and relapsing. She said she reassured him “it was OK”. He asked her if she had felt the connection between the two of them. She told him she did not. She said she continued to console the accused until he fell asleep.
When asked what she did when he went to sleep, she said she moved onto the sofa and remained there, for about half an hour, until the accused’s mobile phone rang and woke him. She said the accused left shortly thereafter. On her evidence there was no discussion about the non-consensual sexual activity she alleges.
The complainant said that about four days after the incident she went to see her next door neighbour Ms S. She said that:
I was trying to tell her and she was adding the words for me because I couldn’t bring myself to say certain things of that his finger was inside me and all that stuff so she, she helped me through the story.
When asked the exact words she used when speaking to Ms S she said:
I remember telling her that… his finger was inside me and that I had woken up and he was rubbing himself, his genitals, on my vagina.
She said she subsequently spoke by telephone to her grandmother who lives in Cairns and told her of the events of the night. That might have constituted an elaboration of the initial complaint but ultimately the complainant’s grandmother was not called, and the prosecution did not rely on that complaint evidence.
The complainant said that her friendship with Ms S ended about four to six weeks later, because Ms S had taken up with the complainant’s boyfriend, and they had no further contact.
Cross Examination of the Complainant
It emerged during cross examination that there were a number of inconsistencies between what the complainant had said in evidence before me, and what she had previously said to police. For example, in evidence she said that she was not taking antidepressants at the time of the incident, but had previously told police she was suffering from depression and taking antidepressant medication at the time of the incident. In evidence she said that she and the accused had gone to a soccer club on Bridge Road once or twice. In a previous statement to police she said the two of them would go to the soccer club every two to three weeks after she finished work.
The complainant gave evidence, as I have said, that on a previous occasion she had woken to find the accused’s hand in her underpants. In her first statement to police she said the accused had never done anything like the charged acts to her in the past. Her explanation was that she knew the uncharged act was wrong, but when she went to the police station to make the first statement in relation to the charged acts, her aim was to get as clear in her head what had happened that night, not any other night.
There were also some inconsistencies in relation to the order of events during the evening. During cross examination, the complainant said that she and the accused did not start watching a movie at her house until after they had returned from driving to get more cannabis. In her first statement to the police she said they had started to watch the movie whilst the accused was pouring glasses of wine, prior to the accused suggesting they go to get more cannabis. I do not regard that particular inconsistency as significant.
During her evidence, the complainant said that she and the accused began smoking cannabis soon after they arrived at her house. In her first statement to police she said the only time they smoked cannabis was after they had left the house to get cannabis. During her evidence she said that she and the accused smoked about ten bongs between them, whereas in her second statement she said they both smoked about two bongs each. When questioned about this inconsistency the complainant said she could not remember exactly how many bongs they had smoked.
Counsel for the accused suggested that the complainant’s account of her behaviour after the alleged incidents was not consistent with the occurrence of non-consensual sexual activity. He asked her why she did not leave the house after the first alleged incident occurred, and how she knew the accused wasn’t going to wake up and assault her. In response she said she didn’t, that she was scared and shocked but she went back to sleep because she was drunk, tired and under the effects of cannabis.
The complainant was asked why she didn’t go straight to her next door neighbour directly after the incidents had occurred. In response she said she was scared and felt ashamed that she had even put herself in a position that allowed it to happen. When asked why it took her a year to report the incidents to police she said she wasn’t ready to cope with it and didn’t have the strength to do what needed to be done. Eventually her brother had given her the support she needed to begin the process about a year later.
When questioned as to the reasons she and Ms S ended their friendship, the complainant said she stopped being friends with Ms S because Ms S was accusing her of owing money she said she didn’t owe, and because Ms S ran off with the complainant’s boyfriend.
It was suggested to the complainant that she fabricated the allegations as a result of jealousy over the impending birth of the accused’s child. She said:
No, I wasn’t urged to go to the police out of jealousy and that never even crossed my heart or my mind. It was the fact that somebody who had done something wrong to me was getting away with it and was living a happy, normal biblical life. Getting away with violating somebody’s trust, your own daughter’s trust.
I bear in mind that in suggesting a motive for the complainant to lie, the accused is not under any obligation to prove such a motive, and that even if I were to reject the suggested motive, it does not necessarily follow that I must find that the complainant was telling the truth.
Ms N
Ms N said that on the day of the incident she and the complainant started drinking wine at lunchtime. At some point C had said she was going to go home, and that she was going to catch a train. Ms N said she was concerned about C catching a train because by that stage the complainant had consumed about four or five glasses of wine. She said the complainant spoke to her father on the phone. Ms N thought the accused had initiated the call.
Ms S
Ms S was C’s neighbour at the time the alleged acts occurred. She said she had gone to C’s house earlier on the night the incident occurred, to ask C to turn the music down. When she walked in she saw C sitting on the accused’s lap.
She said that the following night C came to Ms S’s unit and told her that in the early hours of the morning she had woken to find her father’s hand down her pants. She said C was crying and was visibly upset. At that point Ms S, because of her own experience, told the complainant that she didn’t want to hear anymore about it.
She said C came over to her unit about a week later and told Ms S that “she had said something she shouldn’t have and that she didn’t know what to do”. That was later suggested, by counsel for the accused, to be a retraction of the initial complaint.
Ms S said that her friendship with the complainant had ended by November 2009 because Ms S had lent the complainant about $2,500 which she had promised to pay back, but that the complainant had only ever repaid $100 of the loan.
Evidence of Accused
The accused was 42 years old when he gave evidence. He said he too had been a ward of the state, and alleged that when he was a child he was sexually abused by both of his adoptive parents. He admitted to abusing illegal drugs for a significant period of his life. At the age of 30 he attended a drug rehabilitation program for the first time. The accused said he had started drinking alcohol again in December 2008, which led to him drinking regularly and eventually to relapse into using methylamphetamine and cannabis.
He was asked about the allegation made by the complainant in relation to the uncharged act, and denied she had ever slept in his bed at the Firle address, or that he had touched her in a sexual way at that address.
The accused said that on the day of the incident he had been drinking a lot of alcohol and taking methylamphetamine and cannabis. He said C rang him as he was driving home and asked to be collected from the city and then taken home. He collected her from the Adelaide Railway Station between 4 and 6pm. On the way to her house he stopped at his own house to take some non-prescription drugs and to collect two bottles of wine. When asked if he had any intention of being sexually intimate with his daughter at that stage he said he had none.
The accused provided an account of the events of the evening at C’s unit which can be summarized as involving the consumption of considerable amounts of alcohol and cannabis, and episodes of consensual non-penetrative sexual activity between him and C. The accused said that at C’s unit they drank wine. C came and sat close to him, with her leg over his knee, and began hugging him and rubbing his chest. He said he had fondled her breasts and said they kissed for a couple of minutes. He claimed he said to C that what they were doing was wrong, and that they stopped. He said that shortly thereafter C came and sat close to him again and put her leg over him and that the same thing happened, and that C unzipped his pants and started touching his penis. He said he started rubbing her vagina over her jeans, and that C took off her top and her bra.
He denied that there was any penetration. He said he stopped the sexual activity and they continued drinking and smoking cannabis that belonged to C. When asked about the allegation made in relation to Count 2, the accused denied that that event occurred. He said he believed C was consenting to the sexual contact he had described as occurring. He denied ever saying anything to C as alleged by her during such sexual activity.
The accused said that after consensual sexual activity had occurred, he suggested they get more cannabis. He said they travelled to Port Adelaide where his dealer lived. Upon arrival C stayed in the car and while in the house he injected methylamphetamine before returning to the car with more cannabis and a pipe. On the way home he suggested C drive the car, while sitting on his lap. He denied having touched the complainant’s buttocks or having made any suggestive comment to her.
Cross Examination of the Accused
The accused conceded feeling less inhibited when under the influence of alcohol. When asked why he concealed from C that he was taking methylamphetamine on the night, he said he was ashamed. When asked what was going through his mind, when he was engaging in sexual activity with V he said nothing; that he wasn’t thinking clearly at all. He maintained his denial that the sexual activity described by C had occurred and that while sexual activity did occur it was consensual and the complainant was clearly awake.
Addresses of Counsel
Prosecution
Counsel for the prosecution, Ms Abbey, submitted that the complainant was a reliable and credible witness, and that her demeanour was that of someone doing her best to tell the truth, indicated, for example by her admission of her wrongdoing by drink-driving, her concession as to the extent of her intoxication, and her shame at having allowed herself to get into a situation where she was sexually assaulted.
It was submitted that her demeanour in cross examination, when allegations were put to her that she had initiated the sexual conduct, was convincing and informative; that she displayed shock and disbelief, which turned into anger as the cross examination continued.
Ms Abbey submitted that Ms S was unreliable and that I should reject her evidence. Ms Abbey submitted that Ms S’s memory could not be relied upon, and, in any event, what was suggested to be a retraction of the complaint by C did not amount to a retraction of the initial complaint at all, and that it was not clear that it was even a reference to the charged acts. In relation to the conflicting stories of Ms S and C as to why their friendship ended, Ms Abbey submitted that the account given by Ms S lacked credibility.
Counsel properly conceded that I need not consider the evidence of the alleged uncharged act, given that it was open to find that the accused was asleep at the time. I cannot be satisfied to the requisite degree that, if such an act occurred, the accused was awake at the time.
Counsel suggested the unconvincing aspects of the accused’s evidence included his account that the complainant was the sexual initiator on both occasions, and his inability to recount any of his thought processes at the time sexual activity occurred.
Defence Closing Address
Counsel for the accused, Mr Ibbotson, submitted that I could not be satisfied beyond reasonable doubt that C’s evidence was truthful, accurate, and reliable concerning the charged incidents, and accordingly the prosecution had failed to prove beyond reasonable doubt the accused’s guilt.
He submitted it was apparent that both the accused and the complainant were significantly affected by alcohol and cannabis and it was a reasonable possibility that both the accused and the complainant became disinhibited, leading to consensual sexual activity between the two of them.
He also submitted that the evidence given by C, about not feeling being moved, or her jeans being removed whilst asleep prior to both of the charged acts was unlikely, was consistent with the events never having occurred, rather than the complainant being too affected by alcohol and drugs to notice what was happening.
He submitted that the accused had suffered a forensic disadvantage due to the fact that C’s report to police was not made until about 12 months after the event, which denied the accused an opportunity to obtain evidence obtained to corroborate his version of events. Whilst his memory of events may well have been affected by alcohol and drug use, his defence consisted of denials of the charged acts, and admissions to other sexual activity which, although not strictly illegal, was embarrassing. There was no submission, other than a general submission, as to evidence which was no longer available but may have been available had there been a timely complaint. I have not formed the view that the accused suffered a significant forensic disadvantage due to the delay in reporting the matter to authorities.
In relation to Ms S’s account of the reason her friendship with C ended, Mr Ibbotson submitted that the evidence of Ms S should be preferred to that of C’s. In effect, Ms S said in evidence that she made various attempts to recover money loaned to C, but she concluded that it was a “lost cause.” It was further submitted that should I accept Ms S’s evidence in relation to the debt, it follows that C was not telling the truth on that subject, and that her surrounding evidence should be assessed cautiously both as to her credibility and reliability.
Findings
The decision is a difficult one. Whilst I generally preferred the evidence of the complainant to that of the accused, that is not the test.
The complainant’s evidence is the only evidence against the accused. There were a number of inconsistencies in her evidence. The complaint evidence, and indeed the evidence of the uncharged act, are attended by inconsistencies such that I cannot regard either as being of assistance to the prosecution case.
Both the complainant and the accused were significantly affected by alcohol and drug consumption. That must have affected their ability to recall the precise events of the evening. That may explain certain inconsistencies and uncertainties in the evidence of each. It may well account for disinhibition and sexual aggression on the part of the accused.
However, the accused denied the allegations of non consensual sexual activity on oath and was not significantly shaken in cross examination. As I have said, there are aspects of the complainant’s evidence which cause me some concern, including the inconsistencies demonstrated in cross-examination, to which I have referred, and the tension between her evidence and that of Ms S, who I accept was a truthful witness.
I bear in mind that where there is uncertainty as to where the truth lies, I must necessarily find that there is a doubt.
Whilst the evidence of the complainant raises a suspicion that the accused is guilty, and whilst I am persuaded that she did not initiate any sexual conduct with the accused; having regard to the presumption of innocence and the standard of proof required before I could convict, I cannot be satisfied beyond reasonable doubt that the accused committed the charged offences.
Verdict
I am left with a doubt that the acts alleged by the complainant occurred. I find the accused not guilty of each count.
Count 1 – Not guilty.
Count 2 – Not guilty.
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