R v H, R - [2017] SASC 67

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v H, R
Criminal Trial by Judge Alone
[2017] SASC 67
Judgment of The Honourable Justice Kelly
5 May 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - MISCELLANEOUS OFFENCES - FALSE IMPRISONMENT AND UNLAWFUL DETENTION
Criminal trial by Judge alone – accused charged with false imprisonment and rape – accused pleaded not guilty to both offences – accused and complainant in a relationship at the time of alleged offences – prosecution case that accused tied complainant’s hand to bedhead while she was sleeping and raped her – defence case that none of the events occurred as alleged.
Held: accused not guilty of false imprisonment and rape – reasonable doubt as to the accuracy of complainant’s account and reliability as a witness – conflicting and inconsistent evidence as to recent complaint.
Criminal Law Consolidation Act 1935 (SA) s 48, referred to.
Bird v Jones (1845) 7 QB 742, applied.

R v H, R
[2017] SASC 67
Criminal: Trial by Judge Alone
KELLY J.

The accused, RH, is charged with the offences of false imprisonment and rape. The particulars are that between the 1^st day of January 2016 and the 12^th day of January 2016 he unlawfully imprisoned Ms N and detained her against her will and, between the same dates, he engaged or continued to engage in sexual intercourse with Ms N by inserting his penis into her vagina, without her consent to engage in sexual intercourse, knowing or being recklessly indifferent to the fact she was not so consenting.
Upon his arraignment the accused pleaded not guilty and elected to proceed by way of a trial before a Judge sitting alone.
In considering the issues which arise for determination I have at all times borne in mind that the accused does not have to prove his innocence. The accused is not to be convicted of either offence unless and until I am satisfied beyond reasonable doubt of each and every element of each offence.
The crime of false imprisonment is committed when a person unlawfully and deliberately deprives another person of their freedom of movement from one location to another in the sense that the person is restrained from going where that person wishes.[1] In the present matter, the prosecution allege that whilst Ms N was sleeping the accused restrained her by tying one of her hands to the head of the bed in which she was sleeping.
[1] Bird v Jones (1845) 7 QB 742.
The crime of rape is committed when a person engages in sexual intercourse with another person without that person’s consent, knowing that the person is not consenting or has withdrawn consent, or at least being recklessly indifferent to the fact that the other person is not consenting.[2] The prosecution case is that while Ms N was restrained the accused had sexual intercourse with her without her consent.
[2] Criminal Law Consolidation Act 1935 (SA) s 48.
In this matter, at the conclusion of the prosecution case the accused elected not to give evidence. I bear in mind that he was not obliged to do so and I draw no inference adverse to the accused by reason of the fact that he chose to put the prosecution to proof in respect of both charges.
The prosecution case depends substantially on the evidence of Ms N. She gave an account of her relationship with the accused after meeting him online through a dating website.
After engaging in long and intense conversations with him online and later over the phone, some of these conversations lasting for over 12 to 15 hours, Ms N said she began to fall in love and upon the accused’s invitation eventually travelled to Adelaide to meet.
The high point of this ill-fated affair seems to have been the accused’s marriage proposal to Ms N on the escalator above the baggage carousel upon her arrival at the Adelaide Airport, a proposal which Ms N immediately accepted.
From there things went downhill relatively quickly. A few days after her arrival in Adelaide, in the middle of a conversation about ex-girlfriends or ex‑partners, the accused became abusive, telling Ms N that “all you bitches are all the same”, to which Ms N took exception and left the accused’s house, checking into a motel.
Things were patched up sufficiently for her to return and resume the relationship, although there were other volatile episodes when the accused became angry and abusive for seemingly no reason. Nevertheless when it came time for Ms N to return home, on the way to the airport the accused told her he wanted her to be back in Adelaide as soon as possible and so she returned to Tasmania to make plans to pack up and travel back to Adelaide.
A few days after arriving back in Tasmania Ms N’s expectation was dashed when she received a long text from the accused effectively calling off the relationship and any hope of marriage.
Nevertheless the relationship did limp on to a point when the accused again invited Ms N to visit Adelaide for Christmas. She returned to Adelaide on a one-way ticket prior to Christmas and they resumed a sexual relationship.
A short time after her arrival things began to deteriorate again and on Christmas Eve there was a volatile altercation between Ms N and the accused which caused both the accused’s father and brother to intervene. After Christmas the accused went off on a camping trip with his son and upon his return to the house Ms N informed him that she would be leaving the home.
On her last night at the accused’s house Ms N drank some wine with the accused on the back patio. She said she became quite tipsy and staggered to bed after taking her usual medication and an extra painkiller. Ms N awoke in the middle of the night to find the accused straddling her and trying to tie her right hand to a satin cord around the bedhead. Her left hand was already tied. When Ms N said to him “you don’t have to do this” he simply replied “shut up” and continued to tie up her hand and yanked off her knickers.
Ms N said she did not say a thing and felt she could not sing out because the accused’s young son was in the spare room nearby and his father was in the room next door. She said he then began to assault her by biting and squeezing her breasts, put his penis in her mouth which nearly choked her and then bit her on the breast and other areas of the body. He then had sexual intercourse with her so roughly it hurt. She said she did not struggle or cry out because she did not want his father to come in and see her in that position.
After he ejaculated Ms N said he withdrew, pulled the covers over himself, turned on his side with his back to her and went to sleep.
She then removed her hands from the ties and went into the kitchen and made a cup of tea. She was very upset. She cried and, after taking a shower, sat outside smoking until it was daylight and people in the house started to get up.
Ms N said that nothing like that had happened before in their sexual relationship. She also said that the accused acted normally the next morning.
Ms N said nothing and waited until her friends arrived in the middle of the day to pick her up.
Ms N said that as she left she said words to the effect of “I’m going now” and “I hope we can still be friends”. She said she spoke like that because at the time she wanted to remain connected with his family, particularly his daughter with whom she had had an instant connection. She said he wished her a good trip and she left.
She said she spent the next several days with friends in a caravan park, although she did not wish to disclose their names or involve them in the trial. She did not say anything to these friends about what had happened.
On Ms N’s account she did not tell anyone in any detail about what happened until she got back to Tasmania. This version of events conflicts directly with the evidence of Ms N’s friend Raymond Rhodes, who said that Ms N had telephoned him the night of the incident and told him that “she’d been raped, beaten and knocked about”.
On Ms N’s account, when she arrived at the airport Mr Rhodes told her she looked dreadful, so she then told him what had happened. She still had bruises all over her body. At some stage she was encouraged by family members to take photographs. Those photographs were tendered at the trial.[3] I am satisfied that even though the quality of those photographs is not particularly good, they do show extensive bruising and marks to the upper body and thigh area of Ms N’s body.
[3] Exhibit P2.
Although I do not disbelieve Ms N’s account of what happened on the night before she left the accused’s home, there are several aspects of the evidence which cause me some concern in deciding whether I can be satisfied beyond reasonable doubt of each of the elements of the crimes with which the accused has been charged.
Firstly, both the accused and Ms N on her own account were drinking heavily. In addition to the medication she usually took to manage her pain levels, Ms N also took an additional painkiller before she went to sleep that evening. She said very little except to tell the accused at the outset “you don’t have to do this”. I do not mean to suggest by these remarks that a woman in the same position that Ms N found herself in that night must cry or scream or yell for help in such a situation, but against the background of the history between the accused and Ms N, in particular their sexual history, I am unsure what to make of Ms N’s silence throughout the episode and her decision to behave normally for the rest of her stay in Adelaide until she got back to Tasmania. In particular I am unsure what to make of the fact that she did not tell good friends with whom she went to stay the very next day anything about this matter, nor did she wish to reveal the names of these people. These are people who could have given evidence more proximate to the event about her appearance and demeanour in the days after what was, on her account, a violent, unwanted sexual assault upon her by the accused. Furthermore, the conflicting accounts of precisely when Ms N told Mr Rhodes about the incident leave me with some doubts about the reliability of both witnesses.
In addition to these aspects of Ms N’s account about the actual events as they unfolded that night, I have some reservations about the mental and emotional state of Ms N and the effect it may have had on her, both during the event as it unfolded and in the days and weeks after.
It is not surprising and indeed quite understandable that she only reported this matter to the police after the offences committed by the accused against the two overseas backpackers, known as the “Salt Creek” offences, became public. Nevertheless, by that stage some period of time had elapsed, the love affair with the accused was well and truly over, and Ms N’s state on the account of Mr Rhodes was volatile and unpredictable.
The medical evidence before me reveals that Ms N suffers from a significant and longstanding mental illness. The notes of the doctor who she saw for many years seem to confirm the diagnosis of Borderline Personality Disorder (BPD). That disorder can cause a person, when stressed, to mentally decompensate, become very paranoid, irrational or even sometimes to hallucinate. Consistent with the diagnosis I did notice some florid and at times unusual behaviour by Ms N during the taking of her evidence, particularly when she wished to emphasise that she was telling the truth.
Although the medical evidence does not suggest that BPD is in itself associated with an inherent inability of the sufferer to be truthful, it is clear that sufferers of BPD can at times appear to be lying, manipulative or delusional, and can express contradictory behaviours and attitudes with a lack of concern or bland denial.
For these reasons, I remind myself that I need to assess Ms N’s evidence with caution.
Findings
Against this background, I find that the injuries on Ms N’s body evidenced in the photographs Exhibit P2, were most likely caused during the incident described by Ms N when the accused had sexual intercourse with her in the bedroom of his father’s house the night before she left the home.
I also find it most likely that the accused did restrain Ms N with the use of that cord, although the effect of the restraint was such that Ms N was easily able to extricate herself and leave the room as soon as the accused fell asleep.
I find that the accused did have sexual intercourse with Ms N and given the injuries on her body it was plainly accompanied by a degree of violence, which is unusual to say the least.
However, due to the circumstances and in particular the factors I have previously discussed, I am left with some doubt about the precise circumstances in which this event unfolded. It is plain from her evidence that Ms N felt a degree of shame about the situation she found herself in that night. That is undoubtedly why she told no one else about it, at least until she got back to Tasmania, if her account is to be accepted.
Evidence of a recent complaint can be compelling evidence consistent with the allegation of rape. I acknowledge that the converse is not necessarily true, however its apparent absence here, in circumstances where Ms N left the home and was in the company of good friends for the next several days in Adelaide, has puzzled me. Whilst I understand the shame Ms N must have felt, nevertheless the injuries upon her body were so extensive that it is unlikely that the two friends would not have noticed them. I find it puzzling that a woman as emotional as Ms N obviously is, and as upset as she obviously was, chose to say nothing to the two people to whom she literally fled several hours after the incident. I make no criticism of Ms N for this, however it does, together with the other matters I have mentioned, leave me in some doubt about what to make of it all.
I remind myself as I would remind a jury in the same circumstances that an accused person is not to be convicted on doubtful or insufficient evidence. It is not enough that I have concluded that the accused probably did the things Ms N alleged in circumstances which amount to the crimes of false imprisonment and rape. I must be satisfied beyond reasonable doubt about these matters before he can be convicted. As I do not have that degree of satisfaction in all of the circumstances the accused is entitled to an acquittal. Therefore I find him not guilty of the offences of false imprisonment and rape.