R v GOLD - [2012] SADC 57

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GOLD
Criminal Trial by Judge Alone
[2012] SADC 57
Reasons for the Verdict of His Honour Judge Clayton
3 May 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Defendant charged with two counts of rape and one count of aggravated threatening to cause harm. Defendant mentally unfit to stand trial.
Trial of the objective elements of the offences by judge alone.
Objective elements of each offence found proved beyond reasonable doubt.
Criminal Law Consolidation Act 1935 s 269M; Evidence Act 1929 s 34M, referred to.

R v GOLD
[2012] SADC 57

The accused is charged with two counts of rape and one count of aggravated threatening to cause harm.
With the agreement of the prosecutor and counsel for the accused to dispense with an investigation into the fitness of the accused to stand trial I recorded a finding pursuant to s 269MA(5) of the Criminal Law Consolidation Act 1935 that the defendant is mentally unfit to stand trial.
Counsel for the defendant made an election for trial of the objective elements of the offence by judge alone.
I have heard evidence and representations put to the court by the prosecution and the defence relevant to the question whether a finding should be recorded under s 269MB that the objective elements of the offences are established.
For the reasons that follow I am satisfied beyond reasonable doubt that the objective elements of each of the three offences have been established beyond reasonable doubt and as directed by subs 269MB(2) I will record a finding to that effect and declare the defendant liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935.
The complainant, S, and the defendant had been in a relationship which the complainant ended on about 21 November 2010. However they remained friends and continued to share a house after 21 November 2010 because the defendant had agreed to care for the complainant after she underwent knee surgery on 23 November 2010. All three offences were committed on 24 November 2010.
The prosecution case was that the defendant had forced the complainant to perform fellatio upon him twice and also threatened her by taking a knife from the kitchen, and asking "what finger do you want to lose first" in order to cause her to perform fellatio.
In addition to the complainant, Ms Kardasz, who is the partner of the defendant’s father, a sister of the complainant, a police officer and a medical practitioner gave evidence for the prosecution.
The mother of the defendant and one of his sisters gave evidence for the defence. The defendant did not give evidence; but that is his right and I draw no adverse inference from that.
The complainant was a very good witness. She gave her evidence clearly and with one minor exception there were no inconsistencies in her testimony.
After committing the offences the defendant went outside for a cigarette which gave the complainant the opportunity to send a text message to Ms Kardasz who immediately went to the home. On the arrival of Ms Kardasz the complainant told her what had happened. The complainant's own parents and sister then arrived at the home and took the complainant to the police station where she was interviewed by Constable Jones. The statement to Constable Jones is relied upon as an elaboration of the initial complaint pursuant to s 34M of the Evidence Act 1929.
The complainant gave evidence of previous threats to put a bullet in her head and put her 5 feet under. She also gave evidence of forced anal sex on three occasions prior to the offending. I accept that evidence beyond reasonable doubt.
The evidence of the complainant was that she had an arthroscopy on her knee on 23 November 2010. The defendant had agreed to take care of her after the operation. The complainant and the defendant were dropped off at their home after the operation by the complainant's father. After returning home the accused asked if he could have sex and the complainant said "no". The defendant then left the home notwithstanding the fact that he was meant to be watching the complainant.[1]
[1] T17.
The defendant returned home about midnight. He told the complainant about another woman whom he had met whilst out. He again asked the complainant for sex and again she refused. They went to sleep.[2] The next morning he pretended to be talking with the woman whom he had met the night before on the telephone. He said on the phone "You can come around and we will go in the bedroom". That caused the complainant to say that he would not be going in the bedroom because she was in there resting her leg. The defendant became angry and told the person on the phone that he would call her back. The defendant then slapped the complainant, dug his fist into her cheek, told the complainant that she was his property and no-one else could have her and he told her to give him "a head job". She refused.
[2] T18.
The defendant then fetched a pillow from the bedroom and held it over the complainant's face so that she could not breathe. He asked "Are you going to do as I say?" Because she could not breathe the complainant nodded her head. The defendant said "you give me a head job" and he pulled down the blinds, pulled down his boxer shorts and put his penis in her face. The complainant said that she "went to give him a head job and he went to touch (her) breast", she pushed his hand away and he said "you are my property". He went to the kitchen and returned with a kitchen knife about 20 cm long.[3]
[3] T20.
The defendant said "Which finger do you want to lose first?"[4] Those words are relied upon to establish the charge of aggravated threatening to cause harm. The offence was aggravated by the use of an offensive weapon, namely the knife. The complainant described the tone of his voice as "very aggressive". She said that she had never seen him that angry before and she actually felt like he would kill her.[5] She said she was petrified and thought she was going to die.[6]
[4]    T19.
[5]    T19.
[6]    T21.
The complainant was asked what happened when she "went to give him a head job". She said she put her mouth on his penis and "started going back and forward, up and down". When she flicked his hand away from her breast the force which he used was quite aggressive.[7]
[7] T20.
The defendant then led her into the bedroom, told her to get on the bed and told her to give him "the best head job ever (or) he was going to rape (her).[8] The complainant was asked how did she feel when he said that to her and she replied "Mortified, the thought of him raping me, I couldn't handle it. I knew from past experience it wasn't going to be pleasant". She understood him to mean that he would have entered either her anus or vagina but probably the anus because he knew that would hurt more. She then performed another act of fellatio. She was crying and screaming. The defendant asked whether she would prefer it in the anus or the vagina but then he just stopped and walked outside.[9] That was when the complainant took the opportunity to phone Ms Kardasz who asked "has he hurt you?" and she replied "yes".[10]
[8] T21.
[9] T21.
[10] T22.
The complainant got under the covers of the bed to wait for Ms Kardasz. The defendant said "I'm sorry, I didn't mean to hurt you but if you tell anybody I will have your family raped and killed". Then Ms Kardasz knocked on the door.[11]
[11] T23.
The complainant left the home with Ms Kardasz in her car. She said very little whilst in the car because children were present, but once they arrived at the home of Ms Kardasz the complainant told her everything.[12]
[12] T23.
The complainant then went to the police station picking up her sister on the way.
The complainant said that at the police station, in the presence of her sister, she told the police officer everything that had happened. She said she gave him more detail than she had told the defendant's stepmother because the police made her go into more explicit details.[13] I accept that was an elaboration of the initial complaint.
[13] T24.
In cross-examination the complainant conceded that it was not until the fourth statement that she gave to the police that she mentioned any occasion upon which anal intercourse had occurred in the sexual relationship.[14] I do not regard that as a reason to have doubts about her testimony. Nor do I regard the fact that the complainant had arranged for the defendant to care for her following her surgery as a reason to doubt her testimony.
[14] T25.
As I have said the complainant was a good witness. I would accept her testimony standing alone. However her evidence of the offending is supported by her immediate, almost contemporaneous, complaint to Ms Kardasz and her very prompt report to the police.
Ms Kardasz gave evidence confirming that she received the telephone call, that the complainant was whispering, that Ms Kardasz asked the complainant "are you all right" and whether the defendant had hurt her and the complainant replied that he had.[15] When Ms Kardasz arrived at the complainant’s home the defendant appeared shocked and the complainant appeared "in stress mode, like very frightened and in pain as well because she just had an operation also".[16] At Ms Kardasz’s home the complainant "was just stating things like he threatened her with a knife and he wanted a head job" that the knife was at her neck and "if she didn't do it he would cut her fingers".[17]
[15] T59.
[16] T59.
[17] T60.
The complainant's sister gave evidence that at the police station the complainant said that the defendant had forced her to give him oral sex and that he had a knife and threatened her life.[18]
[18] T75.
Constable Jones gave precise evidence of what the complainant told him. What the complainant told Constable Jones is consistent with her testimony to the court. It confirms the threat and two acts of fellatio.[19]
[19] T83 to 84.
The evidence of Dr Gallagher is consistent with the evidence of the complainant.
The evidence called by the police from the defendant's mother and sister does not provide any reason to doubt the evidence of the complainant.
Mr Dibden submitted that I should treat the evidence of the complainant with caution. I have scrutinised her evidence carefully and I accept her evidence beyond reasonable doubt.
As to counts one and two the evidence of the complainant establishes two separate acts of fellatio. Her evidence establishes that in neither case did the complainant consent but that she submitted to the defendant’s demands as a result of his threats. It can be inferred from the circumstances that the defendant knew that she was not consenting.
I find that each of the elements of the two counts of rape have been established beyond reasonable doubt.
I also find that the words that the defendant uttered whilst holding the knife amounted to a threat to cause harm. The evidence of the complainant establishes that she did fear that the threat was likely to be carried out. The circumstances give rise to an inference that the defendant intended to arouse a fear that the threat was likely to be carried out or was recklessly indifferent as to whether such a fear was aroused. His intention can be inferred from the circumstances. Additionally he was recklessly indifferent because the circumstances give rise to an inference that he realised that the consequence of making the threat would probably be to arouse a fear that the threat would be or was likely to be carried out, but nevertheless he went ahead and made the threat. There is no question of a lawful excuse for the threat.
The aggravating feature, namely the use of an offensive weapon, namely a knife, when committing the offence has been established beyond reasonable doubt.
In the circumstances I find that the objective elements of each of the three offences which have been charged have been proved beyond reasonable doubt. I record a finding to that effect.
I declare that the defendant is liable to supervision pursuant to Part 8A of the Criminal Law Consolidation Act 1935.