R v Green - [2016] SADC 29

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GREEN
Criminal Trial by Judge Alone
[2016] SADC 29
Reasons for the Verdicts of His Honour Judge Chivell
31 March 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
Accused charged with rape and attempted rape. Prosecution failed to discharge its onus of proof.
Verdict: not guilty on both counts.
Criminal Law Consolidation Act 1935 (SA) s 48, s 270A; Evidence Act 1929 (SA) s 34M; Juries Act 1927 (SA) s 7, referred to.
R v Trimboli (1979) 21 SASR 577; R v C, CA [2013] SASCFC 137; Douglass v The Queen [2012] HCA 34, considered.

R v GREEN
[2016] SADC 29

Michael John Green is charged with rape[1] and attempted rape.[2] He has pleaded not guilty to both charges. He elected to be tried by a judge sitting without a jury.[3] Mr Powell was counsel for the Director of Public Prosecutions and Mr Ey was counsel for Mr Green.
[1]    Criminal Law Consolidation Act 1935, s 48.
[2]    Criminal Law Consolidation Act, ss 48 & 270A.
[3]    Juries Act 1927, s 7.
I will refer to the alleged victim of the offences as ‘C’.
Both Mr Green and C are educated, intelligent people. Mr Green is an accountant and C is a registered nurse and midwife. Mr Green is 47, C is 57. They met in May 2013 at a hotel. They did not see each other again until 12 September 2013.
The charges arise from events which occurred in the early hours of 13 September 2013 at C’s house. C lived there with her teenage daughter, N. C’s younger sister, A, had visited during the evening of 12 September.
C and Mr Green had been communicating on Facebook since the previous day. C had initiated the process by sending a ‘friend request’ to Mr Green. Mr Green accepted. They discussed getting together. Eventually, C invited Mr Green to the house that night. She sent her address and telephone number to him. He arrived at the house at about 9.30 p.m., bringing two bottles of wine. N went to bed. A left between 11.30 p.m. and midnight.
Mr Green remained at the house. He said he had drunk too much alcohol to drive home. C made up a bed for him in a spare room. C went to bed in her bedroom.
C got up to go to the toilet at about 4 a.m. On her way back to her bedroom, she noticed that the door to the spare room was ajar. Mr Green had heard her get up. He had gone to her room and entered her bed. He was completely covered by the bedclothes.
For the next three hours, Mr Green and C were in C’s bed. There is deep conflict in their evidence as to what occurred during that period.
C’s evidence is that she repeatedly told Mr Green to get out of her bed.[4] He said ‘It’s all your imagination, I’m not really here’. She went around the other side of the bed to push him out. She did not scream because she did not want her daughter to come in.[5] Mr Green then grabbed her wrists and pulled her underneath him. She repeatedly exclaimed ‘No’ and ‘I’m not that sort of a girl’.[6] Mr Green straddled her, held her wrists above her head with one hand and undid and removed her pyjamas and panties.[7] He roughly sucked and bit her right nipple. He put his thumb in her vagina and held it there ‘really hard’[8] (count 1), ‘he kept pushing it up against [her] anterior vagina wall’. He was dripping sweat on her. She believed he had ‘rough nails’, as his thumb really hurt.[9] Mr Green put his hands around her throat, not tight enough to block the airway, but enough to make her fear for her life.[10] She became more passive after that. For the next one and a half hours he kept trying to insert his erect penis into her vagina (count 2). He was unable to do so as she kept her legs together and kept moving.[11] He tried to get her to perform oral sex, grabbing her hair, but she fought and moved her head from side to side.[12] He put her hands on his penis and made her rub up and down.
[4]T 114.
[5]    T 115.
[6]    T 64.
[7]    T 64.
[8]    T 64.
[9]    T 65.
[10] T 67.
[11] T 65.
[12] T 68-9.
Mr Green’s evidence is that after he went to bed in the spare room, C came back into the room and there was consensual sexual touching. However, since they were both tired, the touching stopped after 10-15 minutes and C went to bed. He heard her get up at 4 a.m. or so, he entered her bed, she joined him, and there was further sexual touching. When he put a finger in C’s vagina, she said ‘Not on a first date’,[13] and so he desisted. There was further consensual touching and they both dozed off at times.
[13] T 207.
At around 7 a.m. Mr Green got out of bed, dressed and left the house. He said they parted on good terms, with him promising to call her. C said Mr Green was angry when he left, and she was extremely exhausted and distressed as a result of the three-hour ordeal she had been through.
Consistency
C said that after Mr Green left, she spent several hours staring into space. She fell into a deep sleep for a time.[14] She then woke her daughter, N, and told her what had happened.[15]
[14] T 71.
[15] T 71.
C said she also told her sister, A, in more detail about what had happened. She was not sure if this was on 13 or 14 September. She said she spoke to A on the telephone soon after the incident, and again in person about four days later.[16]
[16] T 84-5.
These conversations are admissible pursuant to s 34M of the Evidence Act 1929 as an initial complaint and an elaboration thereof. They were admitted without objection. They are admissible not as evidence of the truth of C’s allegations, but to show consistency in terms of C’s behaviour, and of the content of her allegations. They also show the process whereby these charges came to light.[17]
[17] Evidence Act, s 34M(4).
C said she also telephoned her mother on Friday, 13 September,[18] but in cross-examination she said she spoke to her on Saturday, 14 September.[19] She also spoke to a female police officer during the evening of 13 September. She called Yarrow Place, the sexual assault referral centre, on Saturday, 14 September and attended there on 17 September. She reported the matter to police on either Sunday, 15 September or Monday, 16 September. She spoke to her sister, A, again on Monday, 16 September.
[18] T 74.
[19] T 139.
Mr Powell submitted that this behaviour shows consistency with C’s evidence that ‘something terrible happened between her and Mr Green that early morning’. I accept that submission.
Mr Ey pointed out that there is a lack of consistency in some aspects of this evidence. For example, C said N told her she heard ‘banging’ during the night.[20] N gave evidence that she heard nothing because she is a heavy sleeper.[21] N also said that C told her that the man had convinced her to get into her bed with him and give him a ‘cuddle’,[22] which is strongly contradictory of C’s evidence that he grabbed her wrist and pulled her into bed.
[20] T 72.
[21] T 152.
[22] T 153.
C agreed in cross-examination that she went into the spare bedroom when Mr Green was in there, and that Mr Green hugged her and tried to kiss her there. She agreed that he also tried to pull her down onto the bed she had made for him. She said that when he hugged her, she was as ‘stiff as a board’.[23]
[23] T 110.
A gave evidence that she did not speak to C until Monday, 16 September 2013 on the telephone.[24] This is inconsistent with C’s evidence that they spoke on either Friday, 13 September or Saturday, 14 September on the telephone and on Monday, 16 September in person.
[24] T 165.
There were many other issues of consistency and inconsistency raised by counsel. I will not traverse them all, but they include:
·Mr Powell suggested that C putting Mr Green in the spare room was consistent with her evidence that she was not interested in him. I accept that as far as it goes, but it is not a factor which carries much weight;
·Mr Ey pointed out that C’s evidence of vaginal soreness and difficulty urinating was not mentioned to Dr Dayman at Yarrow Place on 17 September, and that this was inconsistent with the evidence that she had those symptoms after the incident. I agree that C’s failure to mention those matters to Dr Dayman is a factor which touches upon her credibility. She did mention it to her daughter and sister on the Saturday, however;
·Mr Powell submitted that C’s allegation about Mr Green using his thumb was unusual and had the ring of truth;
·Mr Ey submitted that C’s evidence that Mr Green completely undressed her of her pyjama top and bottom and her panties with one hand while pinning both her hands with his other hand[25] was implausible. I tend to agree with that submission;
·Mr Ey also submitted that C’s evidence that Mr Green was able to completely undress himself with one hand while pinning both her hands with his other hand during the struggle[26] was also implausible. I also agree with that submission;
·Mr Ey submitted that C’s evidence that Mr Green’s attempts to insert his penis into her vagina, and her preventing him from doing so by clamping her legs shut, continued for about one and a half hours was completely implausible;
·Mr Powell submitted that Mr Green’s explanation for deleting the text messages from his telephone (because he respected C’s request not to contact her and wished to avoid ‘pocket phoning’ her)[27] was completely implausible. I also tend to agree with that submission.
[25] T 138.
[26] T 66.
[27] T 258.
The Facebook and SMS Evidence
C maintained that she was not attracted to Mr Green and that her only motive in contacting him was that he might be able to put her in contact with other ‘decent moral’ Christian men.[28] She said she contacted him at the suggestion of her sister.[29]
[28] T 88
[29] T 20, 88.
C denied that the Facebook messages were flirtatious.[30] I do not accept that evidence. I think they were flirtatious, on both sides. There is nothing wrong with flirtation, especially between consenting single adults. I suspect, however, that C’s answers on this topic were designed to bolster her denials that she was attracted to Mr Green. I set out some of the conversation:[31]
[30] T 89.
[31] Exhibit P2.
[C]
It was nice to see you again. If you go out tonight watch out for the hot nurses and midwives out there.
[Mr Green]
Need someone to introduce me lol [laugh out loud]
[C]
Are you quite shy?
[Mr Green]
I don’t have anyone to go with

Not shy
[C]
I didn’t really think you were. LOL
[Mr Green]
Need a partner in crime
[C]
It is difficult but as a man it is easier to go out. I would never go out alone, but it is less obvious for you guys.

A partner in crime, well when is Kirk coming back to Adelaide?
[Mr Green]
Probably not this year
[C]
Oh. You must be sad then

It is spring now
[Mr Green]
All good .. Wouldn’t mind having a couple of drinks with someone even at home .. Bit tough been a church boy sometimes .. Not always a good church boy at the moment anyway [sic]
[C]
That is funny. Have you been avoiding church (the Edge?) or finding it difficult to behave? !!
[Mr Green]
No 2 lol
…
[Mr Green]
I think girls find the good boy / bad boy thing attractive.. They enjoy the contradiction.
[C]
Sometimes but I have found the bad boy means tough, cruel, nasty etc …

A farm boy. You could go on the farmer takes a wife or find a wife for my boy. or Bachelor.
…
[Mr Green]
You can be my partner in crime tonight.
[C]
Me? I hope I don’t look like a man?
[Mr Green]
Nah you font lol

That’s don’t [sic]
[C]
I wish I could be your partner in crime tonight but [A] is coming round in about ½ hour. I could have been your wingman.
[Mr Green]
How long is she there for..I’m still working
[C]
An hour or so at least. What about another night?

Still working? you must be starving and tired

You need a nurse
[Mr Green]
I’ve eaten .. And yep

Sometimes when I don’t have the kids it’s lonely and tonight is one of those night .. I go home to an empty house
[C]
I do understand. I will let you know. I will wash my hair now and I will give you my phone number [Gives phone number]
[Mr Green]
[Gives phone number]
[C]
I hate an empty house as it can make one feel so sad. I have cried some nights especially after a late shift on a Saturday night.
[Mr Green]
I know some nights are hard
[C]
Yes … You don’t need to be sad tonight-
…
[C]
I will try and see you to give you a little cheer up.
…
[C]
I will hop into the shower now. Speak to you later via the Mobile,
[Mr Green]
You get the pic
Mr Green’s last message, ‘You get the pic’ was a reference to a photograph he sent by SMS to C’s number.[32] It was of him holding two bottles of wine with the caption ‘Wine anyone?’C replied ‘hmmm nice’. Mr Green then sent her a photograph of himself with no shirt on, with the caption ‘A few weeks ago lmao’ (laughing my arse off). The conversation continued:[33]
[C]
Michael I hope that I didn’t give you the wrong idea. ?lol. u have to keep your clothes on. nice abs though. :)
…
very good actually . :)
[32] Part of Exhibit P3.
[33] Exhibit P3.
I agree with Mr Ey’s submissions that C’s references to ‘hot nurses and midwives’, ‘you need a nurse’, ‘I wish I could be your partner in crime tonight’, ‘I will try and see you to give you a little cheer up’ and ‘nice abs though’ were flirtatious.
Flirtation certainly does not imply consent to sexual activity. It is not inimical to the idea of sexual activity either. The point is, however, that C’s denials that she was acting that way, her insistence that she was just being friendly and concerned for his welfare, trying to bolster his self-esteem, that she regarded him as a nuisance, and that he was not attractive, do not ring true in light of this evidence.
Mr Green Leaves the House
C said that the sexual attack ceased when she said to Mr Green ‘Don’t you have to go, don’t you have to be somewhere, haven’t you got an appointment?’ or words to that effect.[34] She said he had mentioned that he had an early appointment nearby during the discussion the previous evening. She said this was one of the arguments Mr Green used to persuade her to allow him to stay the night.[35]
[34] T 70.
[35] T 44, 107.
C said that Mr Green angrily dressed, muttering under his breath, and ‘stormed’ out.[36] She put on her dressing gown and went out to make sure he was gone.[37] She did not mention any conversation in evidence-in-chief. In cross-examination, however, she agreed that she went to the front door and spoke to Mr Green there. She did not remember saying, as Mr Green alleged,[38] ‘Were you going to leave without saying goodbye?’ She did not deny that she said it. She agreed that Mr Green said ‘Don’t worry, I will call you’.[39] She denied that they hugged each other.[40]
[36] T 125.
[37] T 70.
[38] T 209, 254.
[39] T 130.
[40] T 129.
Later in the morning of 13 September 2013, at 12.23 p.m., Mr Green sent C an SMS: ‘Thank you for saying no’. C replied ‘please dont contact me again’.[41]
[41] Exhibit P3.
This exchange attracted submissions from both prosecution and defence. Mr Powell submitted that C’s message not to contact her again is consistent with her evidence that they parted on bad terms, and that Mr Green’s failure to seek an explanation from C for her sudden rejection of him is consistent with him knowing full well that he was in the wrong. Mr Ey submitted that it is senseless to suggest that Mr Green would text ‘Thank you for saying no’ if he had spent three hours trying to violently rape her. Mr Green’s evidence was that he sent this message acknowledging that C was right to tell him to remove his finger from her vagina, as it was ‘just not who I am’.[42] I have reservations about this evidence as well.
[42] T 210.
Character Evidence
Ms Deidre Albrighton gave evidence of Mr Green’s good character.[43] She has known him for approximately 20 years, through their church and business interests. She said that Mr Green is a highly respected person in their community. She is aware of the nature of the charges before the court.
[43] T 268-9.
I am obliged by law to take this evidence into account in the following ways:[44]
·when considering whether to draw an inference of guilt from the evidence, that is, the likelihood that Mr Green has committed the offences charged;
·when considering the credibility of his evidence.
[44] See R v Trimboli (1979) 21 SASR 577; R v C,CA [2013] SASCFC 137 per Kourakis CJ at [110].
I indicate that I have taken this evidence into account in both ways.
Burden of Proof
Both counsel were critical of the credibility of the evidence given by the other side.
It is true that C’s evidence was somewhat florid, repetitive and emotional. This is not surprising if C’s evidence is true. She had every right to be indignant and emotional about Mr Green’s conduct.
It is also true that Mr Green gave his evidence in a very guarded way, appearing disingenuous and excessively polite at times.
The prosecution bears the onus of satisfying me beyond reasonable doubt of Mr Green’s guilt. It is not a question of which version of these events I believe. It is not a question of ‘word against word’ or ‘oath against oath’.
In Douglass v The Queen,[45] the High Court observed:
It was an error to view the appellant's trial as reducing to a case of "word against word". It is a characterisation which fails to recognise that the resolution of a criminal case does not depend on whether the evidence of one witness is preferred to that of another. The resolution of a criminal trial depends upon whether the evidence taken as a whole proves the elements of the offence beyond reasonable doubt. The point is made by Gummow and Hayne JJ in Murray v The Queen:
"The choice for the jury was not to prefer one version of events over another. The question was whether the prosecution had proved the relevant elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the appellant."
To dismiss the appellant's complaint respecting the sufficiency of the reasons on the footing that the judge's acceptance of CD's evidence necessarily carried with it rejection of his evidence was to overlook that the judge's acceptance of CD as truthful was not inconsistent with the existence of a reasonable doubt as to guilt. Even if the judge was not persuaded by the appellant's evidence, he could not convict unless satisfied that it was not reasonably possibly true.
…
[Citations omitted]
[45] [2012] HCA 34.
I do not disbelieve C. I do have some reservations about her evidence. Many of Mr Ey’s criticisms of her evidence have some force, for the reasons I have set out.
I also have reservations about some aspects of Mr Green’s evidence, as I have stated. However, there are no general grounds upon which I would be able to find that there is no reasonable possibility that his evidence is true.
In those circumstances, the prosecution has failed to discharge the onus upon it to prove the charge beyond reasonable doubt.
My verdict is therefore:
As to count 1 – not guilty
As to count 2 – not guilty