R v Green No. DCCRM-00-317

R v KENNETH WAYNE GREEN
[2000] SADC 118

CHIEF JUDGE WORTHINGTON
CRIMINAL

The accused is charged with rape (s48 of the Criminal Law Consolidation Act 1935). The particulars of the offence alleged against him are that between 1 September and 30 November 1996, he had vaginal sexual intercourse with the complainant, Tammy Maria Lockey, without her consent, at his home at Penfield. It is an agreed fact that between 1 October and 30 October 1996, there was a single act of sexual intercourse when his penis was in her vagina. It is that act of intercourse that is the subject of the charge.
The accused has been married to the complainant’s mother, Mrs Sandra Green, since 1990. In October 1996 he was aged about 47 years and the complainant was about 24 years. Because of a failed relationship, the complainant came with her four young children to stay at the house where the accused and Mrs Green lived. It is not possible to say precisely when this occurred, and nothing turns on it, but it was some months before October 1996. The house faces north and has three bedrooms, one next to the other, which make up the eastern side of the house. The accused and Mrs Green moved out of the main bedroom at the front of the house so that it was available for the four children. They moved to the bedroom at the back of the house and the complainant was given the bedroom in between those two. The doors of the complainant’s bedroom and the bedroom occupied by the accused and Mrs Green, were very close to each other. The window of the bedroom used by the complainant faces east, looking over the driveway which runs north/south at the side of the house. Immediately to the rear of the property, to the south, is an air-force base. The window in the complainant’s bedroom had very little covering at that time and at night, the room received a fair amount of light from the RAAF base.
The complainant’s evidence about the charge is as follows.
Prior to coming to the accused’s home, she had been a regular user of heroin, amphetamine and marijuana. The accused and Mrs Green forbade illegal drugs in their house and thus, she could not use these substances except on some weekends when she stayed with friends. She said that, unknown to the accused and Mrs Green, she was taking Temazepam tablets most nights before she went to bed. These were not supplied on prescription and she hid them in her room. I accept that the accused was not aware that she used Temazepam. She said that she would take two to four tablets, sometimes more, on going to bed, using them as a substitute for the drugs to which she was addicted and to help her sleep. Evidence from a psychiatrist, Dr Lim, established that Temazepam can be used to treat anxiety but it is mostly used as a sedative to help people to sleep. It comes in tablets of 10mg or 20mg dosage. The complainant believes she was using 10mg tablets.
In October 1996, the complainant’s grandmother, Mrs Green’s mother, had taken very ill and Mrs Green was spending a good deal of time living with her mother to look after her. On the night in question, Mrs Green was at her mother’s house. At some time after dinner, probably around 8.30pm, the four children went to bed in the front room. At about 10.30pm or 11.00pm the complainant went to her bedroom. She said that she thought the accused had already gone to his bedroom. She said that she changed into her usual night attire of underpants, leggings and a jumper, took some Temazepam tablets, lay down on the bed (a single bed), read for a while and, when she started falling asleep, turned the light off and went to sleep. She believes that she had closed her bedroom door.
The next thing she can recall is waking to find the accused on top of her with his penis in her vagina, as she described it, “rooting me”(Tx17). She said that she was lying on her back but, apart from opening her eyes for a couple of seconds, she did not move. She said that she saw the accused’s head and he was “just going for it”(Tx18). She said that nothing was said by either of them. Her underpants and leggings were off. The accused continued to have sexual intercourse with her for what she estimates to be a couple of minutes, and after he ejaculated, he got off her, walked out of the room and shut the door. Nothing was said. She got her pants from the bottom of the bed, put them back on and “just cried myself to sleep”(Tx19). She said that at no time did she consent to the accused having intercourse with her.
In cross-examination she said that if she had been awake, she would have protested about him having intercourse with her. When called upon to explain why she did not protest when she awoke to find him already having intercourse with her, she said “I freaked out. I was scared. It is not every day you wake up and find somebody on top of you” (Tx62).
The complainant said that early the following morning, she heard the accused leaving in his truck, which had been parked in the driveway adjacent to her bedroom window, to go to work. She said that she readied the three older children for school and rang a friend, Ms Trina Malycha, because she needed to talk to her. After leaving the children at school, she went with the youngest, who was then about three, to Ms Malycha’s house. Ms Malycha told the court that the complainant was crying when she arrived at her house and they had a conversation in which the complainant told her that she had woken up to find the accused on top of her. The complainant said in evidence that she had gone straight to Ms Malycha’s house after leaving the children at school; Ms Malycha was not sure what part of the day it was.
Both the complainant and Ms Malycha said that the complainant did not return to live at the accused’s house. From that day, she and the children stayed with Ms Malycha until they could obtain a Housing Trust house at Smithfield. The complainant did not return to live at the Penfield house until at least 12 months later, when she returned for some months without the children, as part of an effort to become free of illicit drugs. She said that she has now been drug-free for nearly two years.
The accused gave evidence as follows.
When he went to bed on the night in question, the complainant was still up. As was customary, he wore no clothes in bed. He woke up at about 1.00am needing to go to the toilet which is located close to his bedroom. He said that on the way back to his bedroom he could see the complainant in bed through the open door of her bedroom. He said it was the practice in the house not to completely close doors at night. There was a reasonable amount of light coming into the room, although he thought it was mainly moonlight. He described how he went into the room, stood next to her bed, touched her on the shoulder and then, his hands outside her jumper, he started playing with her breasts. Her bed ran east/west, with her head towards the eastern wall. She was lying on her right side, ie facing away from him and away from the window.
He said that he then sat on the side of the bed facing towards the head of the bed so that his left hand was on the bed on the far side of her body and he used his right hand to fondle her breasts. He thinks that at some stage he may have called out her name a couple of times but he got no response from her. After what he believes to be a couple of minutes, she rolled over onto her back, and he then he put his hand under her jumper and “was playing with her on the flesh, on her boobs” (Tx100). At that point, “Her hand grabbed hold of my penis” and he got an erection. She moved around a little and as he started to pull her jumper up towards her shoulders, she lifted the top half of her body so that he could move the jumper more easily, and that “left her breasts in the clear to play with” (Tx101). During that time “her left hand was on my penis.” At no time did he see her open her eyes but he did see her eyes flickering a few times.
He said that he then started playing with her vagina on the outside of her pants and she opened her legs a little. After that, he put his “hands (sic) inside of her pants” (Tx102). After a while he put one finger in her vagina and played with her breasts with the other hand. He then took the blankets off her (they had been up to her waist previously) and as he was taking down her underpants and leggings, she lifted her lower body so that he could get them off. He put them at the end of the bed. He then lay down on the bed alongside her and continued to fondle her. At some point her legs became bent with her knees raised. He said that he continued this for some time and noticed that her vagina was wet. From this he inferred that she was willing to have sexual intercourse with him, so he got on top of her and put his penis into her vagina. He was asked if there was a physical reaction and he replied “a bit of moaning as if enjoying it”(Tx103). Intercourse continued for “probably five minutes or something” (Tx104). He ejaculated into her vagina and, after a while, he got off, went back to his bedroom, leaving her door still open, and went to sleep. In short, the accused says that the complainant made it clear to him that she was consenting to his having sexual intercourse with her.
The complainant first went to police about this matter in April 1999 and the accused was first interviewed by police on 9 May 1999. The answers he gave to the police, until he opted to discontinue the interview and consult a lawyer, were substantially similar to the evidence he gave in court. No adverse inference will be drawn against him for exercising his right to terminate the interview and seek the assistance of a lawyer. Further, apart from some problems with the law when he was a youth, he has not been in trouble before and I treat him as a person of good character.
It is the accused’s evidence that when he first went into her bedroom, the complainant appeared to be asleep but he formed the opinion when she rolled over onto her back that she was then awake. He said this was confirmed by her grabbing hold of his penis, helping while he adjusted and removed her clothing by lifting her body, and moaning while he was having intercourse with her. As mentioned, he also interpreted her wet vagina as indicating a willingness to have sexual intercourse with him. Apart from one matter that arose in the course of the accused’s cross‑examination, to which I shall refer in due course, it is common ground that prior to this night, there had been no outward sign of any sexual interest by one in the other, nor indeed, any mention of such an interest.
Ms Davison, for the Crown, directed the accused’s attention to the time when, while the complainant was lying on her back, he was sitting on the side of the bed and fondling her breasts. He was asked for his observations of her with the assistance of the light coming through the window. The following exchange took place (Tx 110-112):
Q...... What did you see on her face.
A      I didn’t really see nothing on her face.
Q...... You could see her face, though, couldn’t you.
A      Yes.
Q...... What was she doing.
A      She was just laying there.
Q...... Lying there like she was asleep.
A      As if she was asleep, yes.
Q...... You saw nothing that would indicate, from the way she was lying, from looking at her face, that she was awake.
A      No.
Q...... Nothing at all.
A      No.
.......................................................................
Q      The look on Tammy’s face didn’t change, did it, throughout the time you were having sex with her.
A...... Not that I can recall.
Q      During the time you were having sex with her, she was lying on her back and you were on top of her.
A...... Yes.
Q      Is that correct.
A...... Yes.
Q      When you were having intercourse.
A...... Yes.
Q      Your face, at that time, would have been fairly close to her face.
A...... Yes.
Q      During the time you were actually having sexual intercourse, you were in a good position to look at her face.
A...... Yes.
Q      There was nothing about her face that indicated she was awake, was there.
A...... Yes, she was flicking her eyes.
Q      Opening her eyes.
A...... I never seen her open her eyes, because I wasn’t looking at her face all the time.
Q      Her eyes flickered, on how many occasions.
A...... I don’t really know, probably about three to four times.
Q      Are you talking about the entire time you were in the room with her, or just whilst you were having sexual intercourse with her.
A...... She flickered a couple of times beforehand, when I was looking at her face and then a few times when I was having sex.
Q      That was the only noticeable change on her face.
A...... Yes.
In her evidence, the complainant said that prior to this occasion, she got on well with the accused and felt comfortable in his home. She said that she would show normal affection towards the accused as a member of the family. There had, however, been one occasion when she kissed him lightly as if to say goodbye, and in return, he kissed her on the lips in a way that she thought was ‘too friendly’, so she said ‘Don’t’(Tx23). In cross-examination she agreed that he replied ‘Why not?’(Tx40).
In evidence-in-chief, the accused confirmed that she used to be affectionate by either kissing him or hugging him every now and again, but there was an occasion (Tx96) when, just before she was going out, she kissed him on the lips, he kissed her back, and she said ‘Don’t’. He replied ‘Why not?’ but she just walked off to her car. This incident was revisited in cross-examination. For the first time, the accused introduced another factor. When asked whether the complainant’s kiss was ‘a goodbye kiss’ he said (Tx120):
A...... No.
Q      What was it.
A...... She give (sic) me a kiss on the lips and she said ‘We’ll get there’.
Q      She said what.
A...... ‘We’ll get there’.
Q      ‘We’ll get there’.
A...... Yes.
Q      In what context was that.
A...... I don’t really know.
Q      What did you say.
A...... I just said ‘yes’.
In the course of further questioning he repeated that this had happened but he had no idea what she was talking about. He also said that he thought he had mentioned this when giving his evidence-in-chief. He denied he was making it up. He also denied that the kiss he had given her was in any way making a pass or sexually orientated.
To my observation, there were a number of occasions when the accused was disingenuous or evasive in giving evidence and this was one of them. I formed the opinion that he fabricated the reference to her saying ‘We’ll get there’ and having floated it, backed away from attributing any meaning to it. I am not satisfied that it was a lie that was told because of consciousness of guilt. I think he said it to raise a suggestion that she was attracted to him. I have therefore not used it as evidence in relation to guilt of the crime charged, but I do take it into account in my assessment of his credibility as a witness.
To establish the charge, the Crown must prove beyond reasonable doubt that the accused had sexual intercourse with the complainant without her consent, either knowing that she did not consent or being recklessly indifferent as to whether she was consenting. To do that the prosecution must prove three elements beyond reasonable doubt.
The first element is that the accused had sexual intercourse with the complainant in that he intentionally penetrated her labia majora with his penis. That element has been proved.
The second element is that the complainant did not consent to the accused having sexual intercourse with her. In this case, consideration of that element, necessarily involves reference to evidence that is also relevant to the third element, namely proof that the accused knew she was not consenting or was recklessly indifferent as to whether she was consenting.
I am conscious that the complainant’s evidence is to be scrutinised very closely and unless her evidence stands up to that scrutiny and is found to be reliable there can be no question of the accused being convicted.
This is all the more so because the accused has given evidence on oath in which he admits having intercourse with the complainant but denies that there was lack of consent. I am conscious that no-one apart from the two of them was present at the time. Although it was put to her in the course of cross examination that the reason she was upset was because of a feeling of guilt and wretchedness at what she had done, namely having a voluntary act of sexual intercourse with her mother’s husband, it is important to note that it is not for the accused to have to establish any motive that the complainant might have for falsely accusing him of rape. It is for the Crown to prove its case. If at the end of the trial, the Court is unsure where the truth lies, then the accused must be acquitted because, obviously, in those circumstances, the Crown will not have discharged its onus.
There are some inconsistencies in the evidence of the complainant. It was put to her that when she first reported this matter to the police in April 1999, she said that it had happened in 1997, whereas she was saying in court that it had happened in 1996. When asked why, she said that she had got the years mixed up. In my opinion that is a reasonable explanation for what was a mistake when she first spoke to the police.
It appears that she first mentioned Temazepam when re-interviewed by the police in April this year. I shall return to the relevance of Temazepam in due course. However, she told them she was taking 25mg tablets whereas she said in court that she believed the dosage of each tablet was 10mg. She explained that she mixed up the dosage with the number of tablets in a container. I accept that when she was speaking to the police she did not have a container of tablets with her but a friend of hers did, and when she took it to read the tablet dosage, she mistakenly read “25”, that being the number of 10 mg tablets in that container.
It was put to her also that she also told police that she “usually took between two and four tablets” (Tx42) rather than as she told the court, “Between two or four, sometimes more”(Tx15). I do not regard that discrepancy as significant.
Variations in her evidence of this type do not cause me to form an adverse opinion about her reliability. There are no significant inconsistencies.
I accept the complainant as a reliable witness. She gave her evidence in a straightforward way and was frank in her answers, even when, at times, she saw that an answer may be embarrassing or detrimental to her general reputation. For example, she was very frank about her history of heroin addiction and about the fact that she was obtaining Temazepam unlawfully; in the latter case, in face of a warning against possible self-incrimination and an option not to answer the question.
Mr Calderwood, for the accused, put that I should not regard her history of the event as reliable because of her drug addiction. The evidence of Dr Lim does not lead to any inference that I should discount her evidence because of her use of Temazepam. During the time she was staying with the accused and Mrs Green, she did not use hard drugs except on some weekends as I have mentioned. There is no evidence to suggest that she had consumed any drug other than Temazepam at the relevant time and neither she nor the accused consumed any alcohol that day. The submission is not made good on the evidence or on the complainant’s presentation in court.
Whether or not the complainant actually took Temazepam before retiring on the relevant night, I am unable to find. I accept that this was her usual practice but it was her evidence (Tx27) that she took them “just about every night” not that she took them every night. Prior to her becoming aware of the accused in her bedroom, she had no reason to be taking particular notice of what she did that night. The evidence as a whole indicates that it was a perfectly normal evening and she would have had no reason to note whether she took Temazepam tablets that night before going to sleep. When she was first interviewed by the police in April 1999 she was not asked specifically whether she had been taking any drugs and no mention was made of Temazepam. When asked by Mr Calderwood why she did not mention it to the police at that time, she said that she did not think it was necessary because it had played no part in what the accused did to her. As I have said already, it seems that she first mentioned Temazepam when she was interviewed by police again in April this year and was then questioned about drugs. Thus, the first time she put her mind specifically to Temazepam was more than three years after the incident. Her evidence about that is not sufficiently reliable to enable me to make a finding. However, whether it was because of Temazepam or for some other reason, I accept that she was soundly asleep when the accused came into her room and did not wake to full consciousness until she became aware of the accused on top of her already having sexual intercourse with her.

I accept also that on waking, she did not give any outward sign, either of encouragement or discouragement, to the accused. The complainant had woken from a sleep that was sufficiently deep for her to be unaware that the accused had been fondling her and had removed her underpants and leggings. She awoke to find the accused on top of her having sexual intercourse with her. This man was her stepfather. Prior to that moment she had no inkling that such a thing might happen. It is not surprising that she was in a state of disbelief and scared of what was happening. It was put to her that she had never previously had reason to be scared of him. To my mind, that is irrelevant. Seen from her point of view, she awoke to find herself being treated brutally by someone that she had had no previous reason to fear or distrust and who was married to her mother. She was also asked why she did not protest. It is not to the point that another person might have reacted more violently to that discovery. This was a very frightening experience. Her reaction was to do nothing - in effect, to freeze. That reaction is understandable and I believe her evidence about it.
I take into account the complainant’s distress. Ms Malycha described the complainant as upset and crying when she arrived. The complainant described herself as feeling “pretty emotional”(Tx20). Ms Malycha said that she and the complainant had a conversation in her bedroom for “a good half an hour or so” and during that time the complainant was “crying heaps ........... crying pretty well most of the time”(Tx78). I accept that description. It was put that this distress was consistent with a feeling of deep guilt on her part for having had intercourse with her mother’s husband while her mother was absent looking after her own sick mother. I do not accept that submission. It is not necessary to repeat the details of the complainant’s background. However, it is fair to say that she was a mature adult and had had considerable sexual experience. On my assessment of her, it is not reasonable to infer that if she had willingly had sexual intercourse with the accused behind her mother’s back, she would have reacted so severely, not only with obvious deep distress, but leaving the home as soon as she could with four young children not knowing where she could live, except to seek temporary refuge with Ms Malycha. This is also in the context of her mother not even being at the Penfield house at that time. In my opinion, this degree of distress and reaction is not consistent with the suggested reason, but it is consistent with a belief by her that she has been sexually assaulted.
I accept the complainant’s evidence that she visited Ms Malycha shortly after she had taken the older children to school. However, Ms Malycha’s evidence about their conversation and the lack of detail about the complaint is such that I am not able to make use of it. Perhaps it is not surprising after nearly four years, but her memory of that conversation is very vague.
The complainant first complained to the police in April 1999, some 2½ years after the event and is now nearly four years since the night in question. The complainant said in evidence-in-chief that she did not go to the police earlier, partly because of her grandmother’s illness, leading to her death, and partly because of her mother’s wishes. The matter was not pursued further. I have no reason on the evidence to take an adverse view of the complainant’s credibility because of this time lapse. As far as the accused is concerned, there was nothing that caused me to suspect that he was hampered in his defence by the delay. He appeared to have no difficulty recalling the occasion and there is no suggestion that he has lost an opportunity to call other evidence.
I am satisfied that the Crown has proved that she did not consent to his having intercourse with her. I am also satisfied on the evidence that she gave no voluntary indication to him that she was willing to have intercourse. It is clear from the accused’s own evidence that apart from the occasional flicker of her eyes he saw nothing on her face to indicate that she was other than asleep. Given their respective positions it is quite possible there was contact between her left hand and his exposed penis but I do not believe his assertion that after she went onto her back and while her facial appearance was essentially that of someone asleep, she grabbed his penis in the way he described. Nor do I accept that he formed a belief that she was voluntarily assisting him to lift her jumper and remove her lower garments by lifting herself up. I am satisfied that at that time she was still asleep. It is possible that because she was asleep, she was more pliable and he was more easily able to lift her body and move it as needed. I accept that the accused is not academically able and he is not well educated, having left school at age 14 in an opportunity class. But he is not naive. I do not believe that he could honestly interpret that sort of movement as indicating she was aware of what he was doing and willing for him to remove some of her clothes.
In the course of questioning, Dr Lim agreed that it was possible that someone who was under the influence of Temazepam might behave as if they were conscious when in fact they were unconscious. That may well be so but the description given here by the accused is not of someone who appeared to be conscious. In particular, as is clear from the earlier extract from cross-examination about his observations of her on the bed, the appearance is of someone who appears basically unconscious rather than conscious.
The accused said that she moaned after penetration and he interpreted that as a sign of enjoyment and therefore an indication of willing participation. Later in cross-examination he described it as “moaning or making like murmurs” (Tx 124). It is quite consistent with the complainant’s version that as she was becoming conscious during the act of intercourse, she made moaning or murmuring noises. However, I accept her evidence that after she woke up, she did not intentionally make any such noises. I do not accept that these sounds indicated any approval or consent by the complainant to his continuing with intercourse and taking the evidence as a whole, I do not think that the accused honestly believed they did.
The accused said that he was in the complainant’s bed (to police) or bedroom (in evidence, Tx126) for an hour and a half. The difference is not material. I do not consider this estimate reliable enough to use as evidence. He had no apparent reason at the time to take particular notice of how long he was in the bedroom. The evidence he gave about the time devoted to various activities he performed in the bedroom is clearly a series of guesses (Tx100-104). However, even if these guesses are added up, they come to much less than 1½ hrs.
The complainant was unable to comment about whether or not her vagina was moist during this act of intercourse. She said that it was wet after intercourse and that was her reason for thinking the accused had ejaculated. The accused said that he interpreted the state of her vagina as indicating that she was willing to have intercourse. It may well be that her body responded in this way to his ministrations while she was asleep, or such a thing may have occurred for some quite unrelated reason. The fact that she had no soreness after intercourse is an indication that her vagina was lubricated to some extent during the act of intercourse. However, I do not accept that this condition in a woman who had given no previous indication of sexual interest in the accused, whose presentation was consistent with being either asleep or at best, semiconscious, and from whom the accused had been unable to get any verbal response at all - not even an acknowledgment of her name, gave rise to a belief on his part that she was willing to have sexual intercourse with him.
The Crown has proved beyond reasonable doubt that the complainant was asleep when the act of penetration took place, that at that time she was not consenting and that at that time he could not have formed a belief that she was consenting. It has also been proved that although she did wake up during the act of intercourse, she did not consent to it continuing and that she neither said nor did anything to suggest to the accused that she was so consenting. I am also satisfied that the Crown has proved beyond reasonable doubt that the accused made an opportunistic decision to have intercourse with the complainant. Having no belief that she was consenting, he took a risk and went ahead irrespective of whether she was consenting or not. The Crown has established the elements of the crime; the third, in the form of reckless indifference. I therefore find the accused guilty of rape as charged.
In view of that verdict, it is unnecessary to consider an alternative verdict. However, in light of matters argued in addresses, I should set out briefly why I do not consider that an alternative verdict of indecent assault was open to me. It was submitted by the Crown that if I were not satisfied that the accused had committed rape by having sexual intercourse as alleged, I should not acquit but should first consider whether, on the evidence before me, he was guilty of an alternative offence of indecent assault. I have no difficulty with the proposition that in an appropriate case, such an alternative verdict is open.
In this trial, the principal issue was the question of consent to an act of sexual intercourse that was admitted by the accused. In the course of giving his evidence, he described fondling the complainant’s breasts and her vagina, both outside and inside her clothing, including inserting his finger into her vagina - all of this prior to him getting on top of her and inserting his penis into her vagina. The Crown submitted that this evidence from the accused could form the basis of a finding of indecent assault, if rape were not made out. I cannot accept that submission. The act that is the subject of the charge, is an act of penile vaginal intercourse. That act commenced when the accused’s penis first penetrated the complainant’s labia majora and it ended when he withdrew after ejaculation. There is no dispute that such an act took place and as I have said, the issue revolved around consent. It is not a case where the evidence admitted of a finding that within that time frame, there was some sexual intimacy or act less than penetration, and thus, not an act of sexual intercourse. The activities relied on by the Crown to constitute indecent assault occurred prior to that time and in my opinion, they do not come within the particulars of this charge of rape.

[2000] SADC 118

13 September 2000