R v H, DPL - [2011] SADC 71

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v H, DPL
Criminal Trial by Judge Alone
[2011] SADC 71
Reasons for the Verdict of His Honour Judge Cuthbertson
25 May 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
RAPE - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Accused charged with Rape and in the alternative Unlawful Sexual Intercourse.
HELD: Elements of the offence of Rape found to have been established beyond reasonable doubt. Accused guilty of both counts of Rape. No verdict given in relation to alternative offences of Unlawful Sexual Intercourse.
Criminal Law Consolidation Act s 48(1), s 47; Evidence Act SA s 34M, s 34N, referred to.

R v H, DPL
[2011] SADC 71

H, DPL stands charged with 2 Counts of Rape and 2 Counts of Unlawful Sexual Intercourse.
It is alleged that on 30 May 2010, at his home, he had penile vaginal intercourse with the complainant without her consent (Count 1). In the alternative it is alleged that he had penile vaginal sexual intercourse with her at a time when she was under the age of seventeen years (Count 2). The offence is alleged to have occurred in the lounge room of the house of the defendant.
It is further alleged that in the bedroom of the defendant he again raped the complainant by having penile vaginal sexual intercourse with her without her consent (Count 3). In the alternative it is alleged that he had penile vaginal sexual intercourse with her at time when she was under the age of seventeen years (Count 4).
Elements of Offence
The elements of the charge of Rape are as follows:
(1)    That the defendant had sexual intercourse with the complainant.   The insertion of the penis into the vagina constitutes sexual   intercourse.

(2)    That the act of the defendant was a voluntary act.

(3)    That the act of the defendant was an intentional act.

(4)    That the complainant did not consent to the act of intercourse.

(5)    That at the time the defendant knew the complainant was not  consenting or was recklessly indifferent as to whether or not she   was consenting.
The elements of the charge of Unlawful Sexual Intercourse are as follows:
(1)    That the defendant had sexual intercourse with the complainant.   The insertion of the penis into the vagina constitutes sexual   intercourse.

(2)    That is was a voluntary act.

(3)    That it was an intentional act.

(4)    That the complainant was under the age of seventeen years at the   time of the act.
(5)    It shall be a defence to a charge, for the defendant to prove, that   the person with whom he is alleged to have had sexual        intercourse was, on the date on which the offence is alleged to   have occurred, on or above the age of sixteen years and the   defendant believed, on reasonable grounds, that the person with   whom he was alleged to have sexual intercourse was on or above   the age of seventeen years.
Onus of Proof
There is a presumption of innocence and the defendant is regarded as innocent unless or until guilt has been proved beyond reasonable doubt.
Burden of Proof
The burden of proving the charges lies upon the prosecution; the defendant does not have to prove anything with the exception in Counts 2 and 4 that I have referred to.
That means that nothing short of proof beyond reasonable doubt is sufficient.
Each of the elements of the count must be proved beyond reasonable doubt before I can return a verdict of guilty of that particular count.
Separate Counts
The defendant is charged with separate counts and each must be considered on its own merits. A verdict of guilty or not guilty in relation to one count does not necessarily mean that there must be a verdict of guilty or not guilty in relation to the other counts.
Recent Complaint Evidence
Complaints that are inconsistent with the complainant’s case or that demonstrate inaccuracies may be used to cast doubt on the case put forward by the complainant.
I direct myself that the recent complaint evidence is admitted to inform as to how the allegation first came to light and as evidence of the consistency or otherwise of conduct of the complainant and is not admitted as evidence of the truth of what is alleged. I direct myself that there may be varied reasons why the complainant of a sexual assault offence has made a complaint of the offence at a particular time or to a particular person but that it is otherwise a matter for me to determine the significance, if any, of the evidence in the circumstances of this particular case.
Interrogation of Accused
The defendant was questioned by police about his involvement in the alleged offences. I will use the evidence of what the defendant told police as evidence in the case whether it be for him or against him.
Defendant Gave Evidence
The defendant gave evidence. His evidence is to be treated in exactly the same way as the evidence of any other witness
Use of Screen and Court Companion
The complainant when giving evidence requested, and was provided with, the use of a one-way screen, so that she could not see the defendant, and a court companion. I am to draw no adverse inference against the defendant by the use of the screen and court companion. It demonstrates no adverse view in relation to the defendant and is not to influence the weight to be given to the evidence of the complainant. It simply means that it has been requested by the witness and in order to prevent embarrassment the Court has facilitated it.
Distress
Evidence has been led that the complainant was in a distressed condition shortly after the alleged incident. Distress will rarely amount to corroboration and except in special circumstances little weight ought to be given to that evidence.
It is for me, however, to decide whether to accept the evidence of distress and the inferences, if any, to be drawn and the weight, if any, to be given to such a state of distress.
I note that it can only be used as evidence of consistency of the complainant’s evidence if I am satisfied that other explanations for it are excluded.
If I find genuine distress and if I find it consistent with the evidence of the complainant and inconsistent with any other conceivable cause, the evidence can be an aid in assessing the credibility of the complainant. It may indicate that the distressed behaviour was consistent with the events related in the complainant’s evidence and make her evidence more credit worthy.
I direct myself to exercise considerable caution where there are other potential causes of the distress. If I am satisfied that the complainant was in a distressed state and that it was genuine and that it was a result of the offences I could take the evidence into account as evidence helping prove the charge by bolstering the complainant’s credibility, but if the complainant’s distressed condition could reasonably be attributed to some other cause such as remorse or regret then the complainant’s distressed condition would not bolster her credibility.
Intoxication
There is evidence that the complainant was, at least, intoxicated at the time of the offences. This may be due to excessive consumption of alcohol.
I warn myself that if the complainant was intoxicated at the time of the events which she relates it may have the following effect:
(1)    It may make her observations and recollections less reliable.

(2)    It may have made her more prone to consent or at least not to manifest                 objection to the defendant having sexual intercourse with her.

(3)    It may help explain the complainant’s evidence that she felt unable to                  resist the advances of the defendant.
As to the defendant, if he was intoxicated at the time of the relevant events:
(1)    It may make his observations and recollections less reliable.

(2)    It may cause him to lose his inhibitions and attempt to have sexual               intercourse with the complainant.

(3)    It may affect his memory of these events.

(4)    It may make him less able to read the signs as to whether or not the              complainant was consenting to sexual acts.

Good Character
The defendant has given evidence and called a witness attesting to his good character.
He is now 54 years old and has no prior convictions. He should be regarded as, on the whole of the evidence, a man of good repute or disposition.
I shall use the evidence of his good character in two ways:
(1) When considering his sworn evidence, the evidence of his good character indicates that he is more likely to be telling the truth and less likely to be lying and I shall use it in that manner in assessing his credibility as a witness and in respect of explanations he has given.

(2) When considering whether the offences have been proved beyond reasonable doubt the likelihood of the defendant committing them is less given his good character.

Common Ground
Certain facts are established as they are either uncontroversial or are common ground between the defendant and the complainant.
The complainant at the time of the alleged offending was 16 years old. Her birthday is 6 July 1993.
The complainant has two sisters, one younger, called B and one older called S, who is three years older.
Her father died on 27 April 2009.
The complainant remained in the family home for about 3 months and then moved out. At the time of the alleged offending she was living with one L. She had moved in with her in November 2009 and went to school with L’s daughter. She was in Year 11 although she was doing Year 12 physical education.
S, aged 19 years at the time of the alleged offending, had previously been coached by the defendant at badminton. At some stage, for a short period, the defendant and S were in a sexual relationship. That relationship had ended and S had commenced a relationship with a man aged about 50 (JB) at the time of the alleged offences.
The complainant had first met the defendant in 2009 when she had attended at badminton with her sister at Starplex in Gawler. It was only a very brief introduction. (See TP31)
The defendant contacted the complainant by the medium of Facebook on 23 April 2010.
Facebook is a site on the internet where people can put public messages for the benefit of anyone who goes on the site together with private messages which can be restricted to individuals or groups of individuals.
Messages between defendant and complainant on Facebook:

Hello E

Between ESI and You

DH, April 23, 2010 at 2:03pm

You may not know me, I am S’s badminton coach, and yes I also care about her off the court too. You message about her drinking is well founded and just between you and I, I totally agree with you.

She seems to drink a little too frequently and still she drives her car afterwards, maybe now she has learnt a lesson from this, and yes the roads will be a little safer. But most of all, I am sure you love her very much, and she still needs you too, perhaps you can tell her just how much you love her and miss her.

Regards

D

Stay in touch pls, add me if u like. thx

ESI April 24, 2010 at 7:18pm Report

I want to know why you are taking her to phuket and I demand that you tell EXACTLY what your relationship is and your intentions. The truth please because I will NOT except lies, and dont think you’ll fool me coz it wont happen buddy.

ESI April 25, 2010 at 11:23pm Report

Oh and secondly I love baddy is it easy to get into?? I was one of the SAPSASA state champs a few years back..

DH April 27, 2010 at 11:59am

Firstly E, let me make it absolutely clear I have no intentions with S at all, all I am is a friend and her coach, I am not taking her anywhere… I helped her last year and coached her in last years’ SABA Grade titles, and she won the ladies doubles in C grade …… end of story.

As for your baddy experience I was not aware that you were so good, its good to see your involvement in the sport, I assume you are still in badminton, would be a waste just to stop playing, its a great sport.

D

ESI April 27, 2010 at 1:15pm Report

* and by older I mean older than her :) *

ESI April 27, 2010 at 11:05pm Report

the both disgust me and she has confirmed my fears, hence we no longer have a relationship! I have not an ounce of respect for her.

ESI April 30, 2010 at 8:40pm Report

i am very sore and short tempered as I just had an operation and am in a LOT of pain

DH May 3, 2010 at 11:47am

I hope you feel better soon, and the op went well. Are you back at home with your mum to look after you? I am sure you will back on your feet again soon, so for now just soak it all up and relax, no strenuous work while you’re home…

take care

d

ESI May 3, 2010 at 7:00pm Report

nah i dont live with my mother. but recovery has been really good im doing well. im on my feet day I walked out of hospital haha life doesnt stop because i had an operation! Enjoy.. :)

DH May 3, 2010 at 7:03 pm

Well don E, you are a very brave and tough girl,…keep looking on the bright side of life and stay positive, you’re a real survivor …..just remember you have friends near by in case you ever want to share a load …- d

ESI May 3, 2010 at 11:40pm Report

Thank you kindly good sir.

(Initials used to replace actual names. See Exhibit D3)

The complainant and the defendant then commenced contacting each other by phone and text messages. The defendant offered to coach her at badminton and she took up that offer. They had one session on the evening of 21 May 2010 when the complainant drove to the defendant’s premises at Gawler and they drove together, in the defendant’s car, to Lockleys where a badminton complex is located.
This was their first actual meeting together apart from the brief encounter in 2009 when they were introduced.
Shortly thereafter the defendant contacted the complainant and asked her to his home for drinks on Sunday night, 30 May 2010. (See T332)
Phone Text Messages between defendant and complainant:
From defendant to complainant dated 29/05/2010 at 1:02pm:
Still wanna come for drinks tomorrow night? I’m starting at 6pm
From complainant to defendant dated 29/05/2010 at 4:22pm:
Maybe… Depends whether I have school or not … I’ll let u know ?
From defendant to complainant dated 29/05/2010 at 5:57pm:
So u went back to school, great choice – well i’ll be having a drink no worries
From defendant to complainant dated 30/05/2010 at 6:34pm:
Ok no probs – see ya soon
From complainant to defendant dated 30/05/2010 at 6:35pm:
Hey ill be up around 8 for drinks?
From complainant to defendant dated 30/05/2010 at 6:37pm:
Cant wait coach :)
(From bundle of messages from mobile phone screens from Exhibit P7)
The complainant attended. This was the second time they had ever met. On this occasion the defendant and the complainant sat on the lounge in the lounge room watching television and drinking brandy and coke and butterscotch schnapps shooters.
After they had consumed four brandies and coke and a number of butterscotch schnapps shooters sexual activity between the two commenced on the couch. There is a dispute as to the nature of the sexual activity that occurred on the couch and whether or not it was consensual.
The defendant and the complainant then went to the defendant’s bedroom. There is some dispute as to exactly how they got to be in the bedroom but there is no dispute that thereafter the defendant penetrated her with his penis. Again the question of consent is in issue.
A very short time after sexual activity had occurred the complainant got dressed and left the premises in her car leaving behind her wind cheater and her Ugg boots. She rang her friend NH and complained of rape. She was extremely distressed.
Police were contacted and detected her car and stopped it near Greenock on the Sturt Highway. The police officers noted she was behaving in a bizarre fashion and in a highly distressed fashion. She was taken back to the Nuriootpa police station where she continued to behave in a highly distressed fashion and refused to go with the ambulance when it arrived.
Two breath analyses were conducted while she was at the Nuriootpa police station, the first at 1.21 am which returned a reading of 0.075 and the second at 2.11 am which returned a reading of 0.062. A count back of the reading would suggest that at the time of the alleged rapes she had a blood alcohol reading of somewhere between 0.04 and 0.11. (See TP290) Not dissimilar results would be achieved doing a calculation based on her having drunk four brandies and coke and nine butterscotch schnapps shooters, the amount she claims. The defendant claims that they only had four butterscotch schnapps.
The defendant was spoken to by police at approximately 3.40 am. He admitted to sexual activity with the complainant and asserted that it was consensual.
The complainant was medically examined, at Yarrow Place Rape and Sexual Assault Service by a Dr Gregory Dayman, on the afternoon following the offence and was found to have a love bite on the neck and claimed to have bruising on her inner right thigh. (See TP240) The medical observations were equally consistent with consensual and non-consensual sexual intercourse having occurred.
Analysis
An analysis of the evidence must commence with the observation that a 53 year old man living alone asked a 16 year old (the defendant claims he thought she was 17 years old) schoolgirl to drinks on a Sunday night. It must be unusual that that would occur given the age disparity and the fact that the complainant was a school student he had only met once before (at least to talk to).
The defendant claims that the invitation was not to avail himself of any sexual opportunities but rather because he wanted to discuss taking the complainant to a Careers Expo on the following Monday and to ascertain what her plans and expectations were with the badminton coaching.
I find the defendant’s explanations for the need for the Sunday night drinks to be unsatisfactory. In the first place he knew before the weekend started that his daughter wouldn’t be attending any Expo on the Monday with him and the complainant. Moreover, one might have thought that a simple phone call would resolve the question of whether or not the complainant wanted to attend the Expo and where they could meet up to arrange to go there.
The very fact that he was taking her to this Expo after meeting her once, in itself, is unusual and suggests an interest in her, given they had only met once before.
The second reason given was that the defendant wanted to discuss what the complainant wanted to get out of badminton training. This could have been discussed in the car in the 45 minute to 1 ½ hour drive to Lockleys for training and back or whilst at training. Why should there be a special drinks session to discuss such a matter?
It is difficult not to conclude that the invitation to drinks was for the purpose of social relations between the defendant and the complainant, the defendant’s persistence in arranging it and the inadequacy of his explanation for it drive me to the conclusion that he was interested in her for reasons other than arranging to take her to an Expo and for ascertaining her intentions in relation to badminton; namely for sexual reasons.
I am likewise not impressed by the defendant’s explanation that he had no firm idea that alcohol would be drunk and that he offered tea, coffee or Milo before she requested an alcoholic drink. In my view the number of drinks, four spirits with coca-cola and nine shooters was designed to make the complainant more amenable to a sexual approach and that it was intended by the defendant that they would be drinking alcoholic beverages together.

I found the complainant to be an impressive witness. I did not find her evidence to be untruthful or disingenuous in any respect and I accept her evidence as to the amount that she had drunk and that she was affected by alcohol.
I conclude that the defendant knew that she was young (whether it be 16 or 17), a school child, and affected by alcohol that night. Indeed, he admits as much when he says that he was concerned when she left that her driving might be unsafe due to the taking of alcohol. (See TP354, 356)
The complainant claims that after a while she became affected by alcohol. That does not surprise me. It is entirely explicable by the amount of alcohol she had consumed. I accept her evidence as being honestly given and accurate when she describes the effect on her of what must have been the alcohol consumed.
It is noteworthy that the two versions given of what happened in the lounge room and subsequently the bedroom are remarkably similar. This helps me to come to the view that intoxication had not made the complainant unreliable in her recollections of what happened that night.
The complainant asserts that when she came back from the toilet on the second occasion the defendant asked her to do some sit-ups. She told him “I’m fucked, I don’t feel very well”. (See TP56) She told him that she had too much to drink and the defendant said that she was fine. I accept this evidence.
She said that she did thirty sit-ups and sat back on the couch. She was finding it difficult to talk. The defendant grabbed her legs and put her legs up onto the couch across his lap. He then lay on top of her with her on her back. He started to kiss her and put his tongue in her mouth. He touched her breasts under her T-shirt, he removed her bra, he kissed her on the neck, and he removed her pants and her underwear.
She claims he took his shirt off and started to kiss and lick her vagina and inserted his fingers into her vagina. He removed his pants and his under pants. His penis was erect, he lay on top of her and put his penis in her vagina. She claims it hurt in her vagina.
The defendant, on the other hand, claims it was the complainant who volunteered to do the sit-ups and that she never expressed feelings of being unwell, only that she was tired after doing the sit-ups. They sat down together on the couch after the sit-ups and he kissed her and she responded. He claims that she removed her top and then her track pants and under pants. He did not put his penis or his fingers in her vagina nor did he force her into anything.
Both agree that thereafter they went to the bedroom, the complainant claiming to have done so by being held and half carried by the defendant, he claiming that she went there without any assistance.
In the bedroom she claims he put some baby oil on his fingers and placed his fingers in her vagina and then placed his penis in her vagina. He claims that in the bedroom she lay on the bed naked and started masturbating herself. He went and retrieved some baby oil and placed it on her as she was licking her hand as if trying to create lubrication for sexual intercourse which they thereupon had consensually.
The defendant creates the impression that the complainant was forward in taking the initiative in relation to sexual activity.
Whilst I am cognisant of the need to consider whether at the end of the day the prosecution case has been established beyond reasonable doubt, it is reasonable to subject the two competing versions to scrutiny first.
As well as the fact that this was only the second time they had met together there are two other matters of significance.
Before this evening the complainant had been aware that her 19 year old sister S had had a sexual relationship with a 50 year old badminton official. She had described to third parties, and the defendant, that she thought that the idea of a 50 year old man having sexual relations with a 19 year old girl was disgusting.
Further, the complainant claimed that she had never had sex before this event. This evidence was unchallenged and I accept it.
A question for me is whether a 16 year old virgin whose attitude towards sexual relationships with an older man was that it was disgusting would act in the sexually forward and aggressive manner that the defendant asserts.
In my view this evidence is of substantial probative value and its admission is required in the interests of justice. I do not use the evidence merely to raise inferences from some general disposition of the complainant that she would be unlikely to indulge in sexual intercourse or consent to sexual intercourse. In my view it is directly relevant to the issues of the forward and sexually aggressive manner in which she is alleged to have conducted herself. I reject the suggestion that on this occasion she was sexually aggressive in the encounter.
There is evidence of what happened after the sexual intercourse which can be used to cast light on the incident.
After the intercourse had taken place the complainant left precipitately. She left apparently without illuminating lights on her motor vehicle having left the bedroom and got dressed. She forgot to take her wind cheater and her Ugg boots so she left with no shoes on.
Immediately she rang her friend NH and claimed rape. She was in a state of extreme distress. Her car was stopped by police near Greenock on the Sturt Highway and she was again seen to be in a highly distressed and irrational state of mind. I note that one officer described her distress as the most extreme he had ever seen.
I note that her distress lasted for a considerable period of time including on the way to and at the Nuriootpa police station and when the ambulance officers arrived to give her assistance.
I remind myself that the evidence of complaint is admitted to inform me as to how the allegation first came to light and that it is evidence of the consistency of conduct of the complainant and is not admitted as evidence of the truth of what was alleged. I remind myself that there may be varied reasons why the complainant has made a complaint at the particular time she did but that is it for me to determine the significance of that evidence in the circumstances of the particular case. In this case I find the evidence of complaint to be the genuine product of what the defendant had done to her and it bolsters the credibility of the complainant.
The defence case is that the complainant had sexual intercourse with the defendant which was consensual. The defence say that the complainant may well have willingly undergone sexual intercourse and then regretted it because of her attitude expressed about older men having sexual relations with younger women.
The argument is that there must have been a false claim of rape because the complainant did not wish to admit having a sexual relationship with the older man in these circumstances.
On that scenario the distress could perhaps be explained by genuine distress because of the complainant’s contemplation of what she had done or feigned distress in the same way that the complaint of rape would have been feigned.
I am convinced of the genuineness of the complainant’s distress. She was seen by her friend NH, who knew her well, two police officers who arrived at the scene, a female police officer and an ambulance officer. No-one suggested it was feigned. The all spoke also about the extent of her distress. I am confident her distress is genuine. I am confident that it was as extreme as described by these witnesses. I do not think that such distress was feigned. Moreover, I do not think that such extreme distress was the product of genuine distress at regretting a decision to have sexual intercourse with an older man.
If the complainant was distressed at having had consensual intercourse with an older man it is more likely that she would have mulled over the matter in her own mind before coming to the view that what she had done was to be deprecated. The immediacy of her leaving the premises of the defendant, the forgetting especially of her Ugg boots, her immediate claim of rape and the extent of her distress give credibility to the complainant’s allegations.
Even if the complainant was regretful of having had sexual intercourse with an older man, it does not explain her immediate complaint of rape as opposed to the complainant merely keeping it a shameful secret to herself.
I have considered whether there are any other explanations for her extreme distress and her claims of rape consistent with innocence of the defendant. I cannot think of any.
I do not think her intoxication is capable of explaining her complaint of rape or the extent of her distress. I cannot think of any other matter which explains these things other than her complaint that she was required to engage in what she found to be a distasteful experience that she did not want.
I do not find the complainant’s claim that she thought unable to resist the defendant’s advances disquieting. I find it is probably a product of her alcohol consumption and fear and lack of experience.
I find the defendant’s explanation for how these events occurred to be unlikely. I reject it beyond reasonable doubt notwithstanding the evidence of good character and heeding the directions I am required to give myself on that topic.
I am satisfied beyond a reasonable doubt that he asked her around for a drink because he was interested in her sexually. I find that he deliberately encouraged her to drink alcohol to make her more amenable to accepting his advances. I am satisfied beyond reasonable doubt that he initiated and pursued the sexual conduct that occurred between them that evening.
I find that as a result of a voluntary and intentional act on his part he had penile vaginal sexual intercourse with the complainant on the couch (Count 1) and in the bedroom (Count 3) without her consent. The immediate flight by the complainant and complaint of rape and distress is explicable by his having had sexual intercourse with her that evening in the circumstances she has described.
I have no doubt that he hoped she would consent to his advances. I have no doubt however that he knew she was impaired by alcohol consumption and, at the very least, was aware of the possibility that she might not be consenting to acts of sexual intercourse. In these circumstances he proceeded to have intercourse with her anyway but failed to take reasonable steps to ascertain whether she was in fact consenting, in fact I find that he took no steps. No doubt her lack of struggle may have encouraged him that she would at least tolerate his sexual advances and not complain afterwards. I have considered but reject as a reasonable possibility that his own intoxication made him unable to read the signs that she was not consenting.
He should have taken steps to ascertain her attitude to the sexual intercourse due to her young age (whether it be 16 or 17), her intoxication - obvious and expressed by her to him, her lack of participation in the sexual encounter and the short duration of their acquaintanceship all of which made him aware she may not have been consenting.
As well as rejecting the version of the defendant I have considered whether there are other hypotheses consistent with innocence. In my view there are none.
I find proved beyond reasonable doubt the elements of rape in relation to Count 1 and Count 3.
I decline to return verdicts in relation to the alternative Counts 2 and 4.
The verdict of the Court is that the defendant is guilty in relation to Counts 1 and Count 3.
I will hear the parties as to penalty.