R v Hill
[2011] SADC 123
•19 August 2011
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HILL
Criminal Trial by Judge Alone
[2011] SADC 123
Judgment of His Honour Judge Griffin
19 August 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge alone
Accused charged with single count of attempted rape upon an adult complainant.
Verdict: guilty of attempted rape.
Criminal Law Consolidation Act 1935 s 48, s 270A; Evidence Act 1929 s 34M, referred to.
R v HILL
[2011] SADC 123
The accused Michael Jeffrey Hill is charged with attempted rape. It is alleged that at about 6.00 am on Monday 5 April 2010 he attempted to rape the complainant at her home in Salisbury. I will refer to the complainant throughout this decision as “D” in order to protect her privacy.
The accused elected to be tried by Judge Alone pursuant to the Juries Act. Accordingly I have given myself the usual trial directions including directions about the elements of the offence of attempted rape; that there is the presumption of innocence in favour of the accused; that the burden of proof remains with the prosecution; and that each element of the offence must be proved beyond reasonable doubt otherwise the accused in entitled to an acquittal. I have given myself the usual directions about assessment of witnesses, and the possible effects of intoxication upon witnesses’ memories.
I have also given myself specific directions about the evidence and the permissible and impermissible use of some evidence in the trial. I will refer to those specific directions during these reasons.
The Prosecution Case
The prosecution case is that on the afternoon of Sunday 4 April 2010 a number of people were having a social drink at business premises which is about 5 minutes walk from D’s home. The business does crash repairs and spray painting. The owner, David Hards (Mr Hards), had an area of the shed set up as an informal social club. Mr Hards had set up the shed with a pool table, dart board and a bar. It did not have a liquor licence but operated on an informal basis where the employees could have a drink after work together with any friends who were invited. The drinks were provided by a communal arrangement in which the employees each chipped in to stock the fridge.
On that Sunday afternoon D and her brother David M were among those invited to have a drink. During the afternoon the accused was passing the premises and chatted at the gate with the owner Mr Hards. Mr Hards invited the accused to join the others to have a drink in the shed. D and her brother David M were already there, and met the accused in the course of chatting, drinking and playing pool. Witness accounts vary about the extent of any interaction between the accused and D. However, on any account, everyone there on that afternoon was getting along well with the others.
In the early evening everyone left the crash repair business. Several people walked back to D’s home unit to continue socialising, including the accused. D put her children to bed and for the remainder of the evening and into the early hours of Monday morning D, her brother David M, and the accused socialised together and drank, smoked some cannabis, and played electronic games. Another man Jake James (Mr James) was also at D’s house for a part of the evening. On my view of the evidence he left somewhere around midnight.
The prosecution case is that between about 5.30 am and 6.00 am on the Monday morning D wanted the gathering to come to an end. She was tired and intended to go to bed. The accused was asked to leave and he did. Everything was amicable and friendly up to that time. D’s brother David remained for a short time after the accused left. His girlfriend lived only two blocks of units away in the same street. He made his way the short distance to her place.
The prosecution alleges that the accused left D’s home but did not make his way to the train station. Instead he waited in the street nearby and then returned to D’s place after her brother left. D was still tidying up when the accused knocked at her door. He said it was still too early for the first train, that he needed to roll a cigarette and did not have cigarette lighter. He asked if he could come in. She let him back into the living area so that he could roll his cigarette while she continued to tidy up the house. After a short while, she told the accused that he needed to go. D went to the front door to let the accused out. It is alleged that the accused then grabbed D by pushing her around the neck against the wall. He then dragged her down the hallway to the main bedroom where he attempted to rape her.
In the course of the physical struggle D pushed the call button on her mobile telephone thereby ringing the last number. It happened to be her brother’s number. By this time her brother was at his girlfriend’s place a short distance away. There was some conflicting evidence as to why the call was not answered. However, her brother rang back. The complainant heard the phone ringing and knew from the ring tone that it was her brother calling. She was able to grab the phone and press the button to answer it but she could not speak because she was still struggling with the accused. Her brother could hear her screaming and yelling for help. His girlfriend Ms Cimesa could also hear the screaming at the other end of the line. He ran to his sister’s home, knocked at the door and then went to her bedroom window. He kicked in the front door. He saw the accused making his way to the back door of the unit. He tackled the accused and the two men traded blows. David M quickly got the better of the accused and dragged him out the front of the unit where he jumped on top of him on the ground. D made 2 calls to the triple 0 Emergency number while her brother held the accused on the ground until police arrived soon afterwards. D made two calls to the police prior to their arrival.
There are other aspects to the prosecution case but I will deal with some of those in a little more detail in the context of the witnesses and their evidence.
The Defence Opening
Counsel for the accused gave a brief opening in which it was admitted that the accused was at D’s home that evening. He also admitted that there was an altercation with D but it was not as she described it. The accused also agreed that after the altercation with D, her brother arrived and he and her brother had a physical fight.
The details of the defence case became more apparent during cross examination of prosecution witnesses and then in full detail in the defence case itself.
Prosecution Witnesses
The prosecution began its case by calling the witnesses who attended the social gathering at the crash repair business on the Sunday afternoon and evening. I will deal with their evidence in turn.
Mr Finn
Mr Finn is a friend and casual employee of Mr Hards, the owner of the crash repair business. He described how people would sometimes gather in the shed or social club as he called it. He knew D and her brother David M. Their family ran a business nearby and he had met them before. The socialising in the shed started sometime after 4.00 pm. Mr Finn left at about 8.20 pm and others were leaving at the same time. He had a bail curfew which required him to be home by 9.00 pm and he wanted to catch the 8.20 pm train at the nearby station to get back into Adelaide. He was invited to go back to D’s place to continue drinking but he declined. There is conflict in the evidence about whether Mr Finn went back to D’s place or not. Other witnesses have a recollection of him walking with others back to D’s place but only staying for a few minutes before moving off to the train station.
While I accept the possibility that Mr Finn did walk with the others back to D’s place, I am satisfied he did not stay there for any substantial time. He did not go inside D’s place and continue socialising. I accept the general thrust of his evidence which is that after finishing at the club he made his way home.
Mr Finn gave evidence about his observations of the various people at the social club from about 4.00 pm to 8.00 pm. He was introduced by his boss Mr Hards to the accused. He had not met him before. His observation of the accused was that he saw him trying to talk with D a number of times by leaning over and attempting to have a private conversation with her. He described his impression of D being polite but not showing any interest in the accused. Mr Finn spoke with the accused and at one point their conversation concerned the possibility of some casual work being available at the crash repairers. Mr Finn gave his mobile phone number to the accused. Later a piece of paper was found in the accused’s backpack which had Mr Finn’s number written on it.
In relation to drinking alcohol Mr Finn saw the accused drink West End Draught and he seemed sound enough and not overly affected by alcohol. He thought D had one or two drinks but was not affected. He also believed David M was not intoxicated.
Under cross examination Mr Finn abruptly denied any suggestion that he went to D’s house in breach of his curfew. He was questioned about whether D’s children were with her at the social club and he stated his belief that she had two of her children with her, possibly her daughter and the baby. In relation to the interaction between D and the accused at the social club he stated his impression that D ignored the accused.
My assessment of Mr Finn is that he is a direct, plain talking man. I have considered his evidence individually and also in the context of how it compares with evidence from other witnesses.
Perhaps because of his affinity with D and her brother, he was prepared to interpret the interaction between D and the accused in a slightly adverse way. However, he had the opportunity to exaggerate the accused’s level of intoxication but did not do so. He was very defensive about any suggestion that he had gone to D’s home after leaving the social club due to his curfew requirements. His evidence is certainly inconsistent with D’s evidence that he went back to her place for a short while. I accept D’s evidence on that topic and find that Mr Finn did detour past D’s place after leaving the social club. I suspect that Mr Finn was reluctant to concede any situation in which he would have been late for his curfew. However, that does not interfere with my overall assessment of Mr Finn. I accept that he was giving truthful and reliable evidence about the actual observations he made at the social club of the interaction between the accused D and they were polite and friendly towards each other. In relation to his opinions concerning the intoxication of others I accept as accurate his view that the accused, D and David M were not grossly affected, but I cannot rely on him to any greater extent.
Ms Gilbert
In April 2010, Ms Gilbert was in a relationship with the owner of the crash repair business, Mr Hards. They had been together for about 7 years. She frequently socialised at the business premises along with other people. She knew D having met her a couple of months before April 2010. She also knew D’s brother David M for a longer period. She also knew Mr Finn who went by the nickname ‘Trooper’.
On Sunday 4 April 2010 she was at the premises in the late afternoon. She and her partner left together to go home. There were still five to seven people remaining when she left, including D and the accused. She had never met the accused before and did not speak with him that afternoon. Her observation of him was that he appeared a bit drunk because of the way he was acting and walking. She saw the accused speaking with D and at one point saw him put his hand on her bottom and tap it. On one or two other occasions she saw the accused with his arm around D’s shoulder. That would only have been for a few seconds and the witness did not think much of it at the time.
In relation to people’s levels of intoxication, she thought that D was not drunk but was headed in that direction. She put her at about 5 on a scale of 0 to 10. She put the accused at about 8 on the same scale. Ms Gilbert herself had a few cans of Jim Beam but did not think she was adversely affected. Under cross examination Ms Gilbert agreed that D had a pram and the baby with her. She also agreed that the accused and D had been chatting and they seemed to be getting along. She also agreed that D did not appear to demonstrate any objection to the physical contact she observed.
Ms Gilbert presented as an honest person doing her best to assist the court with her observations on the day. She was able to describe some brief episodes of physical contact between the accused and D which were of no great significance. In view of the fact that she knew D and was obviously aware of the allegations in the trial, there was ample opportunity for Ms Gilbert to exaggerate the extent of her observations between the accused and D. She did not do so for the obvious reason that she was simply recounting her observations as carefully as she could. Her assessment of the accused’s level of intoxication is greater than the opinion offered by Mr Finn and Ms Gilbert had little to drink herself. I accept that Ms Gilbert was better placed than Mr Finn to gauge how others were affected by alcohol, but it is a very imprecise assessment. I am prepared to accept the general thrust of her assessment of others in as much as they appeared affected to a moderate extent.
David Hards
Mr Hards owned the crash repair business and gave evidence about the shed or social club. It was used so that he and his mates could drink there after the end of their working day. They could invite people to have a drink with them if they wished. On Sunday 4 April 2010 he and other employees were working and after lunch they started having a few drinks. He described how he was out the front of the premises when a man whom he had seen once before walked past the gate drinking from a can as he walked. Mr Hards spoke with the man and after chatting for a while invited him to come in and join them. The man accepted the invitation and he had some more drinks inside. That man was the accused Mr Hill.
By the time Mr Hards and his partner Ms Gilbert were leaving the premises that evening, he thought the accused was affected by alcohol. He put him at about 6 out of 10 on the scale. He formed that view because of the way the accused was speaking. He had observed the accused speaking with D but he did not see any physical contact between them. He also thought that D was affected by alcohol perhaps being about 5 out of 10. Her brother David M would also have been about 5 out of 10. Another of his employees, Mr James he assessed at about 4 out of 10.
During cross examination Mr Hards did not agree that the accused and D got along like “mates”. Although that may have been recorded by the police officer who took a statement from him, he did not agree with that description. In relation to intoxication he thought the accused was a little more affected than D and her brother. He also revealed in cross examination that he got a telephone call early the following morning from David M and went around to D’s house as a result of that phone call.
My impression of Mr Hards was that he was a straightforward man who gave every indication of doing his best to provide an accurate recollection of events. I accept his assessment of the levels of intoxication of the different parties he described as being generally consistent with what a number of other witnesses also observed, including Ms Gilbert his partner. I do not consider that he exaggerated or distorted his evidence in any significant way. If he is wrong about anything I do not believe it was deliberate.
Mr James
Mr James is a young man who has worked at the crash repair business for the past 5 ½ years. In April 2010 it was common for he and others to have a drink after work in the shed. He has known D and her brother David M for the past 5 ½ years. He has also known Mr Finn (Trooper) for about 7 years. He also commented that Ms Gilbert would socialise in the shed too but she was usually the designated driver and did not drink much. It was common to work on a weekend including Sunday 4 April 2010. He was working from about 7.30 am until about 4.00 pm and after that he and others socialised and drank.
Mr James saw the accused but did not know him beforehand. The accused was carrying a backpack and inside it was a red T shirt, rollies and a tin of marijuana. Mr James could not recall seeing the accused with or talking to D.
Mr James left the club with D and her children, her brother David M and the accused. The accused was invited to come along with them. They walked back to D’s place. Mr James said he saw Mr Finn leave at the same time and head off to catch the train home. Mr James recalls that they were at D’s house for less than half an hour before he, David M and the accused walked across to the Stockdale Hotel to purchase more alcohol. He recalls purchasing a carton of Toohey’s Extra Dry beer. He also recalls the accused carrying a bottle of what he described as a fizzy ladies wine drink back to D’s house. I pause at this point to observe that Mr James and the accused both say that a trip was made to the hotel to buy some alcohol soon after arriving at D’s home. D does not have any recollection of the men going off to the hotel to buy more drinks. David M has no recollection of going with Mr James and the accused to the hotel on such a trip. In D’s case it is understandable that she may not have paid particular attention to the fact that they went on such a trip soon after returning home because she was bathing her children and getting them to bed. It was not a matter of great significance especially when compared with the events she describes in the early hours the following morning. In the case of her brother David M he did not have a recollection of a trip to the nearby hotel. He was affected by alcohol at that stage of the evening and then consumed more alcohol and cannabis throughout the balance of then night and the next morning. It was not an undertaking of any great significance. His failure to remember the trip to the hotel does not shake my confidence in him as a forthright and reliable witness in relation to the events in the early hours of the morning concerning the accused and his sister.
I return now to Mr James’ evidence. Mr James was at D’s home for a part of that evening. His recollection is that the four adults drank beer. He also recalls that both he and the accused tried some of the wine that the accused had, but he did not like it and returned to drinking beer. They also smoked some cannabis which Mr James believed had belonged to David M. He described the accused as being “pretty tanked”.[1] He said David M had a substantial amount to drink that night also and that he was a heavy drinker. Mr James did not believe that D consumed a large amount of alcohol when they were at her home. He did not observe any physical contact between the accused and D during the time that he was at her house.
[1] Transcript 54
Mr James did get himself confused about what time he left D’s home and whether he left alone or with others. His initial recollection was that he left D’s home at about 12.30 or 1.00 am because he needed to be home before it got too late and he would be locked out. I accept that his initial recollection is the correct one. I do not accept that part of his evidence where he stated the alternative possibility that he, David M and the accused all left D’s home at about the same time. I think he is mistaken about that, perhaps confusing it with the occasion the men went to the hotel to buy drinks.
I find that Mr James left D’s home between 12.00 midnight and 1.00 am leaving behind D, her brother David M and the accused.
Mr James was cross examined about whether Mr Finn was also at D’s house that night. He revealed that his initial recollection was that Trooper had also come to the house with the group of people but after speaking with Trooper following the events of that night he was reminded that Trooper had a curfew and went straight home from the club. He was confident that Trooper was not with the group that walked to the Stockade Hotel.
On the subject of smoking cannabis Mr James stated that a bong made out of a plastic drink bottle was used. He disagreed with the suggestion put to him that there had been a glass bong used. He also acknowledged having little memory about whether D had all of her children with her at the social club.
Overall I formed the impression that Mr James was doing his best to give his evidence honestly but I would have difficulty in placing too much reliance upon the detail of his evidence. I think the weight of the evidence suggests that he, David M and the accused did not walk over to the Stockade Hotel to buy alcohol that night. Mr James readily conceded that he had difficulty remembering things with certainty. I think it is fair to say that his recollection of events was affected by a significant level of intoxication with both alcohol and cannabis. In any event, I do not think anything of any great weight turns on evidence.
Ms Cimesa
As at April 2010, Ms Cimesa was in a relationship with David M. She knew D, having met her about 5 months before April 2010. At the time she lived with her young son in a first floor unit which was only two blocks of units away from D’s home.
Ms Cimesa thought that David M arrived at her unit at approximately 4.30 – 5.00am on the morning of 5 April 2010 and she was awake at the time he arrived. It was apparent that he had been drinking and she judged him to be affected at a 4 or 5 out of 10.
She recalls that once he had arrived at her house David M sat outside on the front balcony while she made them some coffee. Having made the coffee she went to the bedroom and noticed David M’s phone sitting on the side table plugged into the charger. She then joined David M outside on the balcony and sat down to have a coffee and a smoke with him.
She had just taken the first sip of her coffee when she heard his phone ringing from inside. She went inside to get the phone but she did not reach it in time to answer the call. She did however manage to see the screen and observed the complainant’s name flashing up on the screen. Having seen this she took the phone outside and told David M that he should call his sister back. At first David M did not seem interested in returning the call but she urged him to do. He tried to call her back but there was no answer. He then put the phone down at which point she asked him to try calling her again. When he called a second time the call was answered and she remembers hearing a voice at the other end. She heard extremely loud screaming coming from the phone. She could not really decipher any words but she thinks she heard the word ‘help.’ She described it as an emotional roar which was very animalistic.
On hearing this David M dropped the phone and ran out of the unit. She then picked up the phone and hit the ‘end’ button and went inside. Once inside she woke up her son and attended to dressing and feeding him. Once this was done she went to the complainant’s unit and estimates that it took about half an hour from the time David M left the unit to the time she arrived at the complainant’s house. When she arrived the police were there and she observed a man she had never met before kneeling with his hands cuffed behind his back.
In cross examination Ms Cimesa revealed that when she heard screaming on the other end of the phone she thought that she may have also heard the complainant’s son Dylan screaming. When questioned on this topic she could not be certain as to whether it was only the complainant screaming, or whether she could hear Dylan screaming as well. She admitted that she could not decipher voices and did not hear any words clearly. She did however maintain throughout her cross examination that she could hear screaming on the other end of the phone.
She also revealed that about 20 – 30 minutes before David M arrived at her house she had been up having a cigarette on her balcony and noticed a man in the street nearby. She first observed this man walk directly across from where the complainant’s driveway area was. She observed him as he walked from this location towards her unit in the middle of the road. He then veered onto the footpath on the other side of Loades Street and turned right into Perez Street. He continued to walk down Perez Street for about 4 – 5 minutes until he stopped walking at the end of Perez Street. She then stopped watching him for a moment and a few minutes later she noticed him walking back down Perez Street into Loades Street towards the complainant’s house. She then lost sight of him when he turned into Wiggins Street.
She described him as appearing really drunk and shuffling his feet as he dragged himself along. He seemed to be in a depressed or angry state and he was carrying a backpack. She believed that this was the same man that she later observed being handcuffed at the front of D’s house.
My opinion of Ms Cimesa is that she was an impressive and articulate witness. She provided a detailed account of the matters she observed. I found her evidence to be both coherent and compelling. She had not been consuming alcohol and therefore her powers of observation and memory were more acutely tuned than some of the other witnesses. I was impressed by the coherence and compelling nature of her account. I accept her as a witness of truth who provided a reliable account of relevant events. Her account of David M’s telephone being in the bedroom when the first call came from D is different to the description given by David M. Her account is more likely to be accurate and I accept her evidence without reservation on that point.
Importantly I accept Ms Cimesa’s evidence that she heard loud screaming over the telephone which prompted David M to immediately leave her flat and run back to his sister’s. The screaming she heard may have included the screams from D’s son as well as D’s screams. Ms Cimesa appropriately accepted as a possibility that the child was also screaming. That possibility is not inconsistent with the evidence of D. I also accept her observations of the man in the street, who I find was the accused.
David M
David M is D’s brother and in April 2010 he was in a relationship with Ms Cimesa. He was drinking at the social club on the Sunday and remained there for a couple of hours. He stuck to drinking just beer and recalls that he only had a couple or a few drinks. He recalled seeing the complainant drink a couple of red wines at the club however he was not paying particular attention to what she was consuming. He saw the accused walking along the street and recalls someone inviting him in for a drink. He thought the accused was carrying some bourbons and a backpack at the time. He recalled the accused drank alcohol while he was at the club but he could not specify how many drinks. He could not recall seeing the accused speak to D at the club or have any physical contact with her. He had a brief conversation with the accused and recalled inviting the accused back to the complainant’s house. He left the club along with the complainant and her children, Mr James and the accused sometime between 7.00 pm and 8.00 pm. He estimated that the accused had been at the club for about an hour to an hour and a half by the time they left.
Back at D’s house more alcohol was consumed. He recalled that his sister was drinking red wines and possibly a few beers. The accused finished his bourbons and then moved onto beers. He stuck to drinking beer throughout the night. At no point did he recall any of them leave to go to the hotel to buy more alcohol.
During the night he drank between 10 to 15 beers but he could not say how much the accused drank. He recalled that while Mr James was at the house he also drank beer. They also smoked cannabis but he could not say where the cannabis came from. He described that when they first got back to the house, D bathed and fed her children and put them to bed. The eldest boy Dylan kept getting up out of bed throughout the evening.
David M could not remember exactly when Mr James left. At some point the accused asked if he could stay at the house and sleep on the couch until the morning when the transport started to run. David said that he answered that question by telling the accused that he could not stay and that he would have to leave. David recalled the accused grabbing his backpack, saying goodbye and leaving. David then helped his sister to tidy up for about 5 minutes or so and then he left and walked to Ms Cimesa’s house. At that time he felt affected by the alcohol and cannabis. He assessed his own level of intoxication at about five out of ten. He put the accused at seven or eight out of ten. He also put his sister at about seven or eight out of ten.
On arriving at Ms Cimesa’s unit David M greeted his girlfriend and then went out onto the front balcony to have a cigarette. He said his mobile phone was in his pocket. This differs to Ms Cimesa’s evidence. David M says his phone rang, he saw from the screen that it was D calling and he did not answer immediately. He let it ring a few times and then decided to answer it. He heard a high pitched scream which he said lasted for a second before the phone went dead. He then rang D’s phone immediately and it was answered after a few rings. He heard yelling and a high pitched scream coming from the other end of the phone. He dropped the phone and ran back to D’s house.
The description by David M of what he heard over the phone is generally consistent with Ms Cimesa’s description. The only significant difference is where the phone was located when it first rang and the precise sequence of events. I do not regard those differences as significant. I accept as a fact established beyond reasonable doubt that screaming could be heard over the phone and predominantly it was D who was screaming for help.
Once he arrived at D’s house he noticed that the front screen door was open but the wooden door was locked. He tapped on the front window and could hear the complainant screaming something like “Bro get this fucking prick off me.” He then kicked the front door in and as he did so he saw the accused come out of the hallway where the bedrooms are located and run towards the back door. Once at the back door but still inside the house the accused turned around and tried to throw some punches at David M. He then hit the accused in the head more than once and grabbed hold of him. He recalls Dylan was screaming at this point. David M then dragged the accused to the driveway at the front of the house.
Once at the driveway he tried to pin down the accused who fought back by wrestling, kicking and kneeing David M. He then held the accused down by using his forearm to pin the side of the accused’s head to the ground. While he was dragging the accused to the front David M felt some of his hair being pulled out. His hair was long and fair at the time and he identified the hair depicted in photographs 8, 21 and 22 of exhibit P2 as his. At some point during the course of the struggle he said he yelled out to D to call the police, which she did. He held the accused pinned to the ground until the police arrived. He described D as hysterical and that she was shaking and crying at this point.
He identified the injuries depicted in photographs 46, 47, 48 and 49 as resulting from the struggle with the accused.
In cross examination David M denied seeing the accused take any marijuana out of his bag and share it with the group either at the club or at D’s house. He also denied seeing the accused take out a tin from his backpack and give D a packet containing marijuana while he was at her house. He also recalled that Mr Finn (Trooper) wandered down to the complainant’s house along with Mr James. When questioned about this further he said that Mr Finn (Trooper) was definitely at D’s house. He recalled that he came inside the house for a short time. When questioned about whether he went to the Stockade pub he had no memory of anyone leaving to purchase more alcohol, and he did not go.
He confirmed that the bong they were using belonged to his sister. However he maintained that he did not see he accused take cannabis from a White Ox tin from inside his backpack.
On the subject of the accused staying overnight and sleeping on the couch, the witness maintained that the accused had wanted to stay but it was he who told the accused he had to leave.
He recalled that when he left D’s house she locked the front doors and that when he came back after the phone call the door was deadlocked and the pin was across when he broke the door down. On the subject of screaming over the telephone he maintained that he heard screaming when there was an open telephone line between his phone and his sister’s phone. In cross examination he conceded that he could not be certain whether it was D or her son Dylan who was screaming. However in re-examination he indicated that the screaming he heard sounded like an adult voice.
There was clearly a violent struggle between this witness and the accused. This witness denied that he stole any rings or a watch from the accused during the struggle or while he was holding the accused down waiting for the police to arrive. In relation to the accused’s backpack the witness was not certain where the backpack was located when he returned to D’s house following the phone call. However he denied ever removing anything from it particularly any bags of marijuana.
David M’s description of the events at the crash repair business was generally consistent with other witnesses evidence. On his account it is clear that he drank consistently during the afternoon and then throughout the night at D’s house. Any absence of detail compared with other witnesses is explicable on the basis that he was moderately affected by alcohol by the time he left the shed, and was more intoxicated through alcohol and cannabis when he left his sister’s home the following morning. I accept as generally accurate, his description of the events at D’s house on the Sunday evening and through to early Sunday morning. He did not minimise his own intoxication nor did he attempt to exaggerate either the level of intoxication or the behaviour of the accused. I accept that he was being honest and endeavoured to give accurate evidence at all times.
I accept that there was a conversation in the early hours of the morning in which the accused either asked or suggested that he might stay at D’s house until the buses or trains started running later that morning. I find proved beyond reasonable doubt that David M told the accused that he had to leave. D may also have said the same thing to the accused. The tone of the evidence from David M and D on this subject clearly conveyed that this was not a big issue. It was dealt with in a low key way. The accused accepted the response and departed on good terms. I find that David M remained behind with his sister helping tidy up for about 5 minutes. He then left. It was shortly after his departure that the accused returned to D’s home and knocked on the door.
I am satisfied that David M missed a phone call from his sister and made a phone call to his sister. He is mistaken about having answered a call from her which was of a short duration. The phone records do not bear this out. That inaccuracy does not change the fact that he did hear screaming over the phone and he immediately reacted to it. I am satisfied that Ms Cimesa also heard the screaming over the phone and that David M immediately ran to his sister’s.
I am also satisfied that when he arrived at his sister’s place he found the wire screen door unlocked and the wooden door closed and locked. He briefly went to the bedroom window to get his sister’s attention. He said he heard her say words to the effect “Bro, get this fucking prick off me”. While I do accept that he heard his sister yelling, I am not satisfied beyond reasonable doubt that those precise words, or words close to that, were used. I note that in her evidence, D did not claim to have said anything to that effect to her brother or even realising that he was outside until she heard the door being kicked in.
I am satisfied beyond reasonable doubt that David M immediately realised something was seriously wrong when he heard screaming over the telephone. When he arrived at her home very soon after the phone call, that notion was reinforced by the fact that the screen door was unlocked, the wooden door was locked and he could hear his sister screaming out from inside. He was moderately affected by alcohol and no doubt the situation confronting him was sudden and alarming. Due to the combination of those circumstances I do not have complete confidence in his evidence about the precise words he attributes to his sister.
During final submissions the prosecutor submitted that if those words were uttered by D, then David M’s evidence on that topic would form part of the res gestae. The prosecutor further submitted that if the evidence is admissible as forming part of the res gestae then it would be evidence going to the truth of the matter asserted, namely that the accused was on top of D at the time she made that statement. In view of my finding about this aspect of David M’s evidence it is not admissible to prove the truth of the matter asserted. The prosecution argument on that point fails.
As an immediate consequence of hearing his sister inside, David M went to the front door again and kicked it in. I accept that he saw the accused come from the short hallway leading to the bedrooms and make his way to the back door of the unit. The back door was locked and the accused could not open it. David M and the accused then began a violent struggle. Although David M got the upper hand, it was not all one way. Clumps of David’s hair were pulled out in the struggle. I am satisfied that David M got the accused outside and soon had the better of him. He pinned the accused to the ground and used his full body weight to hold him down.
I accept David M as a witness of truth. During his evidence he made appropriate concessions on matters he was uncertain about. On the principal events he was clear about the substance of what had taken place. Despite many opportunities to do so, he did not exaggerate anything about the accused’s conduct. On the other hand he acknowledged his own level of intoxication and the full extent of the fury he directed towards the accused when he believed his sister had been attacked.
I reject as a reasonable possibility that David M stole items of jewellery, or a watch, or cannabis from the accused during the period of the altercation up to the time the police arrived. I also note that one item of jewellery, a ring, was found on the ground near where the two men were fighting. The accused’s watch may have been lost in a similar way if indeed the accused was wearing a watch at all that night. Although no watch was found, I do not accept as a reasonable possibility that David M or D took the opportunity in that volatile situation to steal some items of questionable value from the accused as he lay struggling on the ground. I reject that hypothesis as a reasonable possibility.
Dr Badu
Dr Badu is the medical practitioner who was on duty at the Lyell McEwen Hospital in April 2010. The accused was brought to the hospital by police. He saw Mr Hill at 6.56 am on Monday 5 April 2010. A police officer was with him. Dr Badu took a short history which included questions about ingestion of alcohol or drugs. The accused asserted to Dr Badu that he had been drinking but had not smoked any marijuana. The accused stated that he was attacked by 2 to 3 people who he did not know and that he was robbed of his backpack. He also said he had had jewellery taken including a watch. He appeared to be drowsy which was consistent with intoxication.
The accused was examined and had swelling and bruising to the peri-orbital area.
In cross-examination Dr Badu confirmed that the accused expressed concern about losing his backpack. On examination of his face there was some blood on his nose and lips. There were no cuts or abrasions to the face but it could have come from a blood nose. Dr Badu noted that the accused was on the drug Alazopram which is an anxiety disorder medication. The swelling to the peri-orbital area did not indicate a fracture and no further investigation of that was undertaken that morning. It was a matter which may have been investigated a day or two later if the patient had ongoing symptoms. In this case because the accused was handed back into police custody no follow up CT scan was undertaken.
Dr Badu indicated in his evidence that he made a note about a CT scan as a probable follow up, not a definite one. It would depend on the patient’s symptoms 2 or 3 days later. There was no evidence that the accused suffered anything other than swelling and bruising to the peri-orbital area. He may also have had a blood nose during the struggle. Dr Badu’s description of the accused’s distress is also consistent with the presentation of the accused on the video tape taken by police at the hospital (exhibit P8).
Constable Marshall
This witness was on patrol from the Salisbury police station. He attended with Constable Atkins at about 6.20 am and saw the accused being held down on the ground outside the units by another male. They ascertained that the male holding the other one down was the brother of the alleged victim. They told him to go back inside while they dealt with the accused. When they asked the accused what had happened he kept repeating that he had either been robbed or bashed. Constable Marshall surmised that he was referring to the man who had been holding him down. He assessed the accused’s level of intoxication as at least eight out of ten. He noted the accused was extremely agitated and his speech was slurred. He was attempting to stand up and could not. The witness was unsure whether this was through injuries or intoxication or both. He told the accused to remain sitting on the ground. The ambulance arrived and he was taken to the Lyell McEwen Hospital. Constable Marshall travelled in the ambulance. He and his partner handed the accused over to other officers at about 7.20 am at the Lyell McEwen.
In cross-examination Constable Marshall confirmed that the man holding the accused on the ground was shouting and ranting at the accused and was quite aggressive. He confirmed that D was also standing in the driveway and was also shouting and swearing at the accused.
The Complainant: D
By the time D gave her evidence a number of witnesses had described the social gathering on the Sunday afternoon. D’s family ran a business near the crash repairers. She had been at her father’s shop with her three children. She had a couple of alcoholic drinks while she was there. At about 5.30 pm she went over to the social club with her three children. The youngest was only a month old. She had a few more drinks and recalls about a dozen people socialising. She met the accused and remembered sitting around near the pool table and had some conversation with him. She did not recall any physical contact between them or anything unusual about their conversation.
D described leaving the club because her children were getting tired. She thought she got home at around 8.00 pm. She thought that by the time she left the club she was a little affected by alcohol. By the time she arrived home she believed she had sobered up.
When leaving the social club a few people wanted to continue drinking including her brother. She invited several people including the accused to come back to her place. She recalls that her brother David, Mr Finn (Trooper) and the accused walked with her and her children back to her place. She was not certain whether Mr James also attended because he would often come back to her place if there was a social gathering. Mr Finn only stayed for 10 or 15 minutes before leaving. She then put the two eldest children to bed in one of the bedrooms. The baby was put down to sleep in a cot in her bedroom. She believes she had at least a carton of Pale Ale beer at her house. She remembers the accused pulled a green bottle from his bag and drank some wine from it. She did not have any of that drink. She recalls drinking Pale Ale beer throughout the evening. Her brother David drank beer and bourbon. During the evening and early hours of the morning at her house D drank about 4 or 5 beers. She also smoked cannabis with the accused and her brother David. She had a bong which they each used. She had some cannabis which she had obtained from her brother and the accused produced a bag of cannabis from his backpack. The cannabis was combined and shared.
By the time the accused and then her brother left her home at around 5.15 am, D thought she was a little affected by alcohol and cannabis but only at the level of about 1 out of 10. She described feeling sleepy and a bit drained. She thought her brother was affected to the level of about 2 or 3 out of 10. She thought that the accused seemed fine when he left and was speaking about wanting to catch the first train running that morning.
D recalled a discussion in which the accused said something about missing the last train and he would remain drinking at her place until the first train ran in the morning. However she did not recall any discussion about him sleeping at her place.
Shortly before they left, D said to her brother and the accused that she wanted them to leave so that she could relax by herself. The accused seemed fine with her request and soon after that he picked up his backpack and left. Her brother David stayed on for a further 10 minutes or so and then left.
D described her habit about locking her front doors which consisted of a wooden door and an outer screen door. They both have locks. Once her brother left she locked both doors.
D then tidied up the house. About 10 minutes later there was a knock at the door. She opened the wooden door with the key that was still in the deadlock. She could see through the screen door that it was the accused. He told her that it was still too early for the train and he wanted to roll a cigarette and needed a lighter. She had a lighter in inside so she invited him in. He came into the lounge room and she gave him the lighter. He sat on the couch not far from the front door and started to roll his cigarette. While he was doing this she got a drink of water from the kitchen. D had no memory of exactly where his backpack was.
D came out from the kitchen area and saw that the accused was finishing rolling the cigarette. She said she was tired and wanted to go to bed so she asked him to leave. She went to the front door to open it. She noticed that the door was deadlocked but did not believe she had locked it once the accused came inside. She went to open the door and the accused pushed it shut. She went to open it again and the accused pushed the door shut again and pinned her against the wall by putting his had against her throat. He used one hand to do this. D recalled that the keys to the door were still in the deadlock as was her usual practice. D said she recalls vividly telling the accused to get out and tried to scream at him as he started to squeeze harder. He then started to drag her to her bedroom and was saying the words “Just let me have it, you know you want it”. The accused kept repeating words to that effect about a dozen times. She began to kick and tried to scream as she was dragged up the short corridor to the main bedroom. The accused used two hands when dragging her and she described not being able to do anything to get out of his grasp.
At the bedroom he pushed her straight onto the bed where she landed on her back with her feet over the edge just touching the floor. The accused stood between her legs and she was still kicking and attempting to scream as he started to undo her jeans. He continued saying “You know you want it” while he was doing that. He pulled down her jeans to her knees while still holding her throat with one hand. Her underwear was pulled down along with her jeans.
D saw the accused unbutton his jeans or undo the front of his pants but she could not recall whether they came off or were pulled down.
The accused tried to touch her on the vagina but she pushed his hand away. He tried to touch her a couple of times but only made contact with her once in the area near her clitoris.
D then managed to get her phone out of her jeans pocket and press the call button. She knew that would call the last number she had dialled but she did not know who this would be. She held the phone above her head as she lay on the bed so that it was out of the reach of the accused. She could hear it ringing but she did not know whether anyone had picked up the call. The accused tried to get the phone away from her and knocked it out of her hand. She saw that the screen had lit up. She then heard the phone ringing. Because of the ring tone she had assigned to different numbers she knew it was her brother David calling. The phone was at the corner of the bed. She managed to reach it and press the answer button. It stopped ringing and she hoped she had answered the call as she screamed for help. The accused was still fighting with her but he became more panicked at that point.
D remembered that her son Dylan had been woken during the struggle and he came into her bedroom. He stood next to the bed while she was being pinned down by the accused and Dylan was screaming for the accused to get off his mother.
D recalls that the phone was knocked from her hand again. She certainly lost control of it and the wrestling continued. Soon after that she heard the front door being kicked in. The accused immediately jumped off her, pulled his pants up and ran down the hallway. She was still on the bed. By the time she got up from the bed and reached the doorway she saw that the accused had gone down the hallway and turned towards the back door which was on the opposite side of the room to the front door. She saw her brother David cross the room from the front door and wrestle with the accused near the back door. The wrestling continued and David dragged the accused out through the front door onto the driveway. He managed to pin the accused onto the ground so that he could not move. During the course of that struggle she saw her brother hit the accused a few times.
D made two emergency calls to the police. During evidence she listened to the telephone calls[2] and confirmed that she was the caller. While she was making the calls to the police the accused was on the ground, yelling out for help. The second call to the police was made because her brother David was becoming more aggravated and angry with the accused and she was concerned about what might happen. She wanted the police to get there as soon as possible.
[2] Exhibit P4
D had previously injured her forearm and a scab had formed. Subsequent examination of the bedroom showed some blood stains on the bed consistent with her injured forearm having abrasive contact with the bed during the struggle. She however did not notice any blood on herself until after the incident.
D described that she had some bruising on her neck and it was sore with a small amount of swelling. She pointed to some marks evident in photographs 52 and 53 in exhibit P2.
Police also located her front door keys on her bed attached to a lanyard. They were D’s house keys which she usually left in the deadlock at the front door. She had no knowledge about how they came to be on her bed.
Finally, in her examination in chief, D confirmed that during the incident that she described she did not want to have sexual intercourse with the accused. Based on her conduct that was also the clearest of inferences.
During cross examination D agreed that she went to her father’s shop on Sunday at around midday. She may have had a glass of red wine but she also took a 6 pack of Pale Ale with her. She did not take any wine with her to the social club at the crash repair business.
She did not have any memory of Mr James coming back to her house from the social club. Mr Finn (Trooper) came back to her place but only stayed for about 5 minutes. When questioned about whether she knew he had a curfew, D indicated that she only found that out later. Mr Finn came to the front door but did not socialise or drink at her house prior to leaving. Similarly she had no memory of any of the people who came back to her house walking with a pushbike as was suggested by Mr James in his evidence.
D confirmed that during the afternoon at her father’s shop she had her three children with her and the children ate some takeaway food for dinner before they went over to the social club. Sometime after it got dark the children were getting tired and so D decided to go home. She confirmed that the adults who spent most time at her place that evening and the next morning were herself, her brother David and the accused.
When questioned about her level of intoxication when she left the social club, D was “a little bit tipsy”[3] and put herself at about 3 out of 10. She had not used any cannabis at the social club and did not recall any conversations about cannabis. In particular she did not speak to the accused about cannabis or see him with a White Ox tin. She disputed the suggestion that she was aware the accused had 5 or 6 bags of cannabis in his backpack. She only saw 1 bag which he produced from his backpack at her house. The accused did not produce or show her a bag of cannabis when they were at the bar at the social club.
[3] Transcript 173
She confirmed that back at her house the accused produced some cannabis and D had some. The accused only produced cannabis from his backpack once, and they mixed it all together. The bong was brought out from under the sink where it was kept probably about the time that Mr Finn left. D only recalls herself, her brother and the accused using the bong. Later the bong was put away under the sink in the laundry and she then threw it away the next day. The bong was a homemade one from a Coca Cola bottle. No-one had or used a glass bong.
When questioned about anyone going to the Stockade Hotel to buy more alcohol, D said that no-one left her house for that purpose but earlier in the evening someone did go to the bottle shop from Mr Hard’s premises.
On the subject of whether the accused could crash or sleep on her sofa that night, D said she was not involved in any such conversation. When questioned about whether her brother David had responded to such a request from the accused and told him ‘No’ – D indicated that she had not heard any such conversation. She did hear conversation involving the accused regarding the last train having left. Her account of the conversation was to the effect that the accused could stay and drink during the night and catch the first train in the morning.
The next morning D’s recollection was that the accused left at about 5.15 am.
It was put to D that she had a conversation with the accused about him getting her some methamphetamine. She strenuously denied this. It was further put to her that when he left her home the accused was going to get some methamphetamine and come back with it. D disputed those propositions. Her evidence was that when he left she believed he was going home and there was no intention for him to return at all. It was suggested to D that her conversations about methylamphetamine with the accused happened outside the hearing of her brother. D denied that proposition as she had no such conversations about methylamphetamine.
D was then cross-examined about her habit of locking her front doors and what she did after the accused left. After the accused and her brother left, D locked the screen door and the wooden door. When the accused returned she unlocked the wooden door, spoke with the accused at the screen door and then let him in. Her understanding was that he would not be staying long because he wanted to roll a cigarette and use a lighter before catching the first train. When D let him in he sat on the couch nearest to the front door and rolled his cigarette.
It was put to D that when she let the accused back into the house, they sat together and smoked methamphetamine using a glass pipe. D denied that any such thing had happened. D described again the sequence of events of asking the accused to leave and when she went to open the door he pushed it shut and commenced his attack upon her. D did not see the accused lock the wooden door again and did not know how it came to be bolted shut when her brother kicked it in a few minutes later.
The final details of the defence were then put to D in cross-examination. It was suggested that she and the accused had been kissing each other before the accused left her premises for the first time. When he returned with the methamphetamine they used it and they were kissing again. It was suggested to D that they walked to her bedroom voluntarily and that he took his backpack to the bedroom and left it there when he went to the toilet. D denied each of those propositions.
It was then put to her that while the accused was in the toilet she took 4 or 5 bags of cannabis from his backpack and a $50 note. It was then suggested that upon his return he caught D in the act of stealing his belongings, he became very angry and a verbal argument erupted. Again D disputed each of those propositions.
It was asserted that Dylan came into the bedroom because of the argument which was only an argument about D stealing the accused’s drugs and money. It was put to D that she was never pushed onto the bed, that the accused was never on the bed or on top of her and that he never touched her on the vagina or attempted to remove her clothes or his own. The effect of what was put to D is that she had fabricated a false allegation of an assault and attempted rape in order to divert attention away from the fact that she had stolen the accused’s cannabis and $50. It was further suggested that D made up the story about an attempted rape in order to explain why a man was in her house that morning. D refuted each of those propositions and maintained that the events had happened as she had recounted.
D was then cross-examined about ever having made a false report to the police before. She was charged with making a false report to police and pleaded guilty to that offence. She explained that she had been in a relationship with her former partner where there was domestic violence. She made a report to the police that her boyfriend had thrown a spear at her. She later retracted that statement and told police that it had been a false allegation because she was angry and upset at her boyfriend. As a result of retracting the statement the police charged her with making a false report. In this trial her explanation for that previous conviction was that the episode she alleged against her boyfriend did take place but he had a lot of control over her and he forced her to retract the allegation. She did that in order to keep him out of gaol and the result was that she was charged with making a false report. She ended up pleading guilty to making a false report because she felt compelled to.
While it was argued that this conviction damages her credibility on the basis that she was prepared to make a false report to the police, I do not regard it as damaging her credibility at all. I found her explanation for retracting the allegations against her former boyfriend and then pleading guilty to the false report charge entirely convincing. The way she described what she did and her reasons provided a compelling explanation. I am perfectly satisfied that she pleaded guilty to making false report to police in order to save herself violent repercussions from her then boyfriend. I reject the suggestion that her original allegation to the police against her boyfriend was a false report for an ulterior motive. I do not regard the previous conviction as damaging her credibility.
Discussion about D’s Evidence
I was impressed by D in terms of the manner in which she presented as a witness and the content of her evidence. She was quietly spoken and was thoughtful in relation to her responses during examination in chief and cross examination. She did not claim to have a perfect memory of all details but my firm impression was that she was always doing her best to give truthful and reliable evidence. Inconsistencies about her description of the accused wearing either jeans or track pants and the manner in which he may have attempted to undo his trousers did not cause me to doubt her credibility and reliability. In view of the altercation taking place between the accused and D in her bedroom, inconsistencies over time about certain details is understandable. Those matters do not shake my confidence in her as a witness.
I was also impressed that her evidence at all times appeared to be well considered and measured. She did not take opportunities which were freely available to exaggerate the conduct of the accused. Similarly her description of how her brother was setting upon the accused after he kicked in the door was candid and very realistic. It would have been quite easy for her to exaggerate bad conduct by the accused and minimise the level of force being used by her own brother.
I was completely satisfied by her evidence and I accept the essential features of her description of the event involving the accused beyond reasonable doubt. To be perfectly clear, I accept beyond reasonable doubt her description that she was physically attacked by the accused as she was attempting to open the door to show him out. She was physically attacked near the doorway and forcibly taken to the bedroom where the accused then struggled with her in the way she described. I accept her description that her jeans and underwear were pulled down during the struggle and that she was touched on the vagina during that struggle. I also accept her description about the words being uttered by the accused which together with his actions at the time clearly demonstrate his intention to have sexual intercourse with her. For the reasons which I will describe in more detail when dealing with the accused’s evidence, I reject as a reasonable possibility any romantic or sexual interest existing between D and the accused. I also reject as a reasonable possibility that D asked the accused to get her some methamphetamine and that together they consumed methamphetamine when he returned to her house. I reject as a reasonable possibility that there was an argument between the accused and D because D had stolen cannabis and money from the backpack. In my view that evidence given by the accused is a false story intended to explain his return to the house and why there was a violent argument going on between them when the phone calls were made.
There is nothing within the accused’s evidence or the defence arguments that cause me to doubt D’s evidence about the essential events she described at her home that morning.
Professor Jason White
Professor White is a pharmacologist and Head of the School of Pharmacy and Medical Sciences at the University of South Australia. Professor White’s expertise was accepted and the point of his evidence was to explain the likely impact upon behaviour and thinking processes caused by alcohol and drugs.
A Statement of Agreed Facts exhibit P14 included evidence about a blood sample taken from the accused at 2.25 pm on 5 April 2010. He had been taken into police custody at about 6.20 am that morning outside D’s home. The blood alcohol level in the sample was 0.082 g % and Professor White calculated that at about 6.00 am would have been in the range of 0.195 g % and 0.025 g %. He offered the opinion that at those approximate levels of intoxication a number of changes would take effect. The person will understand conversation but at a lower intellectual level. His motor skills will be impaired and alcohol is likely to have a disinhibiting effect upon behaviour. It may increase the likelihood of impulsive behaviour including aggression but not necessarily so. The same level of intoxication is also likely to impair memory to some extent.
The blood sample also contained 0.03mg/litre of the prescription drug Alprazolam.[4] Professor White described this as a significant level of that drug. Assuming that no Alprazolam had been taken by the accused following his arrest, and there was no evidence that he had, Professor White calculated a level of around 0.05mg/litre at 6.00 am. Such a level would require a high dose of Alprazolam and would produce quite marked sedation unless the person had established a tolerance to that drug.
[4] Other drugs detected included diazepam and nordiazepam as set out in paragraph 23 of Exhibit P14
Professor White described that one effect of Alprazolam may be to reduce anxiety. It can have an effect on capacity for thought but would not prevent a person from being able to make a considered decision. It may affect to some extent a person’s memory or recall of events but not to any marked degree.
In combination the levels of alcohol and Alprazolam in the accused could amplify the effects of each drug.
On the information available to Professor White there was no THC in the blood sample, THC being the active ingredient in cannabis. Similarly there was no indication of any amphetamine type drug in the sample. Professor White expressed the opinion that if a person used a common dose of methamphetamine at about 5.00 am or 6.00 am then it would be unusual not to see evidence of that in the person’s blood sample taken at 2.25 pm the same day. Evidence of methamphetamine consumption would usually be detected for 24 hours or so. This evidence is directly related to the assertions by the accused in his evidence that he and D consumed methamphetamine when he returned to her house that morning.
Under cross examination Professor White agreed that a person’s tolerance to alcohol and prescription drugs can influence the degree to which the person is affected by those drugs. He agreed with the proposition that if methylamphetamine was smoked rather than ingested then not all of the drug would find its way into the blood stream.
It was put to Professor White that if following the ingestion of alcohol, amphetamine and prescription drugs, a person suffered a head injury, then the effect on the person of those drugs could be different. Professor White expressed the opinion that it would depend upon the extent of the head injury including whether or not the person lost consciousness. On the assumption that the head injury included a blow to the socket around the eye possibly causing a fracture of the orbit, he accepted the proposition that such a blow in combination with the drugs might have a memory impairing effect.
Professor White also conceded during cross examination that the lowest blood alcohol level at about 6.00 am would have been 0.154 g %. Such a level is possible if the accused was a very slow eliminator of alcohol. A normal elimination rate would put him at a higher level at 6.00 am.
Discussion
Professor White presented as a highly skilled expert in his field. He offered his expert opinions based upon the agreed factual foundations put to him. I accept his expert testimony without hesitation. He appeared entirely impartial in relation to the opinions he offered. He readily made reasonable concessions about matters put to him during cross examination.
Based upon his evidence I am satisfied beyond reasonable doubt that at about 6.00 am the accused’s blood alcohol concentration was at least 0.154 g %. It was probably higher than that but at a bare minimum it was a significant blood alcohol level. Together with the Alprazolam (and to a lesser extent Diazepam) the accused was affected by the combination of alcohol and drugs. I find that the effects upon the accused included some level of interference with his cognitive functioning, a reduction in his inhibitions, and an impairment of his memory. Due to the imprecise nature of the assumptions put to Professor White about the extent of any head injury suffered by the accused, I am unable to reach any clear conclusion about the likely effects of the alcohol and drugs in conjunction with a blow or blows to the head. There may have been some effect upon the accused but through Professor White’s evidence I am unable to say what, if any, effect there was.
Senior Constable Neil Metcalfe
The prosecution called the Crime Scene examiner Senior Constable Neil Metcalfe. His evidence in chief was dealt with through his signed witness statement. It was received as exhibit P7. He also took photographs of the crime scene and of D. His evidence is laid out in detail about his examination of the unit that day and photographs of D regarding marks or injuries on her body.
The witness confirmed that when he examined the wooden door the dead bolt was locked in the extended position and the door frame was broken. That is consistent with the wooden door being dead bolted at the time D’s brother kicked it in.
In relation to photographs 51, 52 and 53 the witness saw some minor red marks to the right hand side of her throat area at the time he took those photographs.
In cross examination the witness confirmed that he took photographs of areas on D’s body where she indicated some physical injury. He did not notice any other apparent signs of injury otherwise he would have taken more photographs. He did note that D had scabs on the elbow area of either her right or left arm which appeared to have been recently broken.
The witness confirmed that he took swabs and other forensic samples from the accused for examination by laboratory scientists. In the main bedroom he did not search for any items on the bedding such as long black hair but rather he left such examinations for the laboratory. He did not search the house nor did he see a plastic bottle used as a bong or a glass bong. He did see a backpack outside the front door, where it was located when he first saw it. Further, he remembered an allegation being brought to his attention about jewellery and a watch missing or taken from the accused but he was not asked to look for any such items in or outside D’s residence.
Senior Constable Matthew Christey
Senior Constable Christey and his partner Senior Constable Tunbridge attended the scene at about 7.55 am. By that time the accused had been conveyed to Lyell McEwen Hospital. The witness spoke to D and her brother at Ms Cimesa’s unit nearby. They then went to the Lyell McEwen Hospital arriving at about 8.35 am. They made some enquiries about whether the accused could be released into police custody. Subsequently the accused was released to the police. A video camera was used to record conversations with the accused.[5]
[5] Video exhibit P8
Transcript of video exhibit P9
During the record of interview the accused was asked questions about the contents of a notebook from his backpack. The witness confirmed that he had inspected the backpack at about 11.30 am on Monday 5 April primarily to see if there were any valuables in it that needed to be placed with the accused’s property. It was not a detailed search. The notebook was located and of interest to this witness were some names and telephone numbers including a reference to D’s brother, Mr Finn and another man. This is consistent with Mr Finn’s evidence that he gave his name and phone number to the accused when they were talking at the social club about the possibility of some work being available.
On Tuesday 6 April the backpack was examined more carefully and the witness located a plastic bag containing a smaller plastic bag with cannabis.
In cross examination Senior Constable Christey said that when he first arrived at D’s house at about 7.55 am on the Monday morning, he did a brief search of the house. D was not there at the time. He was briefed by other police officers and spoke with the crime scene officer. He then made some observations inside the house and in the front yard. He did not have any recollection of seeing either a plastic or a glass bong. He did not see four or five small bags of marijuana.
In relation to the backpack and the plastic bag containing marijuana, the witness confirmed that no forensic examination was undertaken. He also confirmed that he was aware from his dealings with the accused that he claimed that his watch and rings had gone missing. This witness did not search inside or outside the house for those items but rather left an examination of the scene for Crime Scene Examiner Metcalfe. The witness confirmed that on the day he saw D he did not take any forensic samples from her. About two months later she attended the police station to provide her fingerprints. In relation to whether D suffered any injuries, the witness noticed some faint red marks on her neck when he saw her on 5 April.
In relation to his interaction with the accused that morning, the witness did not smell alcohol on his breath in the car nor did he think the way he was speaking suggest that he was incoherent or unable to understand the questions he was being asked. The witness was aware that the accused may have been drinking before this incident but he did not appear unduly affected by alcohol.
Constable Laura Atkins
Constable Atkins and her partner police officer Marshall were the first to arrive at the scene. She saw two males on the driveway with one man holding the other man down. There wasn’t much of a struggle just one man holding the other. The police learned the identity of the two men. Constable Atkins also spoke to D who was inside the unit in the lounge area. She appeared to be very shaken. She had trouble talking and trouble stringing some words together.[6] Constable Atkins saw some red marks on the right side of her neck. Shortly after that the ambulance arrived as did other police. Constable Atkins and her partner left the scene at about 7.25 am leaving it in the hands of others.
[6] Transcript 262
In cross examination Constable Atkins agreed that David M was aggressive towards the accused as he held him on the ground. He was yelling at the accused and the accused appeared to have some injuries. The complainant D was not outside when the police arrived and there were no other men present. When Constable Atkins went inside to speak to D her three children were with her and so was Ms Cimesa. Constable Atkins did not notice the backpack nor did she observe any keys, a bong of any description or bags of cannabis.
The completion of the prosecution case was a Statement of Agreed Facts[7] and a further Statement of Facts regarding telephone records.[8]
[7] Exhibit P14
[8] Exhibit P15
Record of Interview 5 April 2010
Police officers Christey and Tunbridge began speaking with the accused at the Lyell McEwen Hospital. There was no suggestion that any of his statements to the police were not voluntarily made or were made in circumstances of any unfairness. There was no application to exclude any of the conversations with the accused.
The accused appears agitated or worked up when speaking with the police. He repeated his claim several times to the effect “I just got bashed by three blokes and got robbed”.[9] His repeated assertion to the investigating officers is that he walked past and three people robbed him and bashed him. He protested about being arrested for assault with intent to rape and said that he was the one who had been bashed and robbed. He also claimed that his watch was ripped off his arm and he gave a description of two other men who held him down with one of them standing on his head.[10] The accused repeated that he did not understand why he was being arrested. He again described that he was just walking past a place when three men who where all drinking grabbed him, bashed him, abused him and then stole his watch and his rings.[11]
[9] Exhibit P9 page 1 line 38
[10] Exhibit P9 page 1 line 168
[11] Exhibit P9 page 7 line
The accused repeated more than once that it was three onto one.[12] He described being invited into a warehouse which he then thought was a bikie clubroom so only decided to stay for a short while.[13] He then said that about half an hour after leaving while he was walking through some streets two men jumped on him and attacked him and a third person took his belongings. He thought the people who attacked him were Aboriginal.[14]
[12] Exhibit P9 page 9 line 407, page 11 lines 516-519, page 12 lines 547-562
[13] Exhibit P9 page 15 lines 712-718
[14] Exhibit P9 page 16 line 755
The accused denied knowing D and denied having been at her house after socialising at a crash repair business. He also said he did not know her brother David M but agreed that it might be the person by the name of “Dave” who he had mentioned earlier in the interview. He then denied each of the specific allegations put to him regarding being in D’s home, returning to her house and assaulting her with the intention of raping her. The accused vehemently disputed each of those allegations.
The accused was interviewed again on Tuesday 6 April 2010 about the contents of his backpack, particularly entries in the notebook. The accused had no recollection of writing people’s names or phone numbers in the notebook. He claimed that he had been knocked unconscious and his recollection was a bit sketchy.[15]
[15] Exhibit P11 page 6 lines 280-282
Defence Case
Mr Hill gave evidence in his own defence. He began with information about a nervous condition for which he was taking the drug Alprazolam. He had taken that medication for about one year prior to his arrest. Before that he had been prescribed Zoloft for a number of years. Symptoms of his condition include sweaty palms, heartbeat racing, shaking a lot and panic
Mr Hill then described what he remembered of the events of 4 and 5 April 2010. His evidence was in sharp contrast to the statements he made to police when interviewed on 5 and 6 April 2010.
On Sunday 4 April he described going to a friend’s house and after that visit, he walked along Middle Road, Salisbury. He met a bloke named Dave (Mr Hards) out the front of his workshop. Mr Hill was invited to come in and have a beer. He accepted; came into the premises and met some other people. There was an 8-ball table and a bar and people standing around having a drink. He met another Dave (D’s brother David M) and Jacob or Jake (Mr James). He also met the complainant D and a guy with a nickname Trooper (Mr Finn). He remembered D had two children with her, a newborn and a little boy who was a toddler. He described the people talking, smoking cannabis and drinking. He said everyone was smoking cannabis including himself, Dave (not identifying which one) and D. The cannabis was his which he had in a White Ox tin in his backpack. He had five packets of cannabis with him. He said that D and Dave (presumably her brother) wanted to purchase a packet of cannabis from him. He said that one bag was taken out of the tin to be used and he put the tin back into his backpack.
Mr Hill said he had two beers at the shed but did not drink bourbon or any other spirits. He thinks he arrived there at about 5.00 pm and a couple of hours later he left when the shed was being locked up and all the others were leaving. He was invited by D to go with her, her brother and Jake back to D’s place for a few drinks. He thought Trooper had a curfew and took off in another direction not going back to D’s place. Mr Hards and his girlfriend also left. A small group consisting of Mr Hill, D, her children, her brother David and the man Jake walked back to D’s place which was about 10 minutes away. Jake had a pushbike which he walked back to D’s place. Mr Hill described not being back at D’s place for more than about 10 minutes before a few of them left to get more beer. He, Jake and David and the little boy walked to the hotel about 10 minutes away, bought alcohol at the drive-through bottle department and then returned. They bought a carton of Carlton Cold beer and a bottle of wine which they took back to D’s place. He thinks they were away for about a half an hour. Upon their return they drank, smoked cannabis and played electronic games on the TV. They all sat around the table and people generally only moved between the kitchen, the table and the lounge area which was all open plan. The little boy was up for a while but the other two children were in bed.
I accept the accused’s evidence that he was attracted to D but I reject as a reasonable possibility that any such feelings were reciprocated by her. The accused had indicated that he liked D from soon after they met the previous afternoon. The accused told a false story about methylamphetamine in order to explain his return to the property. Upon his return he used the excuse of needing a cigarette lighter so he could roll a cigarette for himself. Whilst waiting for the first train to start running. This was the excuse to get back into her home. I find that the accused waited near the property and was able to see when her brother left. His presence in the area and his movements were observed by Ms Cimesa from her balcony. Once he was back inside D’s home, there was no smoking of methylamphetamine and no kissing. I completely accept D’s evidence about those events and I completely reject the accused’s evidence. I find that it was when D went to the door and insisted that it was time for him to leave that the accused acted upon his sexual desires towards D. I find that he either stopped D from unlocking and opening the wooden door and started his physical attack upon her, or if she had started to open the door he pushed it shut and locked it in the early stages of his physical attack on her. Whatever the precise mechanics, the wooden door was dead bolted at the time David M kicked it in.
I reject as a reasonable possibility that a heated argument broke out between the accused and D because D took cannabis and a $50 note from the backpack while the accused went to the toilet; that an angry verbal argument which followed resulted in D making a phone call to her brother; and that a call was allegedly made in her son Dylan’s room and Dylan was crying and upset at the time. The accused evidence is that he did not physically attack her, did not pull down her jeans and underwear, did not touch her vagina, did not undo his own pants, and did not say words indicating that he was going to have sexual intercourse with her. He claims that D fabricated those allegations in order to excuse her theft of some small bags of cannabis and a $50 note. I reject the accused’s evidence about these events as a reasonable possibility. It is a feeble story designed to try and match the important features of D’s evidence and the prosecution case. The soreness and minor bruises of D’s neck, the abrasions to the scab on her forearm and blood stains on the bed, the phone calls between D and her brother, the screaming heard over the phone by David M and Ms Cimesa are consistent with D’s evidence and are inconsistent with the events described by the accused. Although the injuries observed on D’s neck are not severe injuries, they were observed by police who attended upon D. They were not self inflicted and they are inconsistent with the purely verbal argument which the accused asserts.
I again remind myself that the accused is not under any obligation to establish any fact in this trial. In assessing his evidence I have concentrated on the substance of his evidence and considered whether it serves in any way to cause me to doubt any essential part of D’s evidence or any other parts of the prosecution case. I have concluded that his evidence does not cause me to doubt her veracity and reliability as a witness.
Defence Submissions
Ms Brown, counsel for the accused, submitted that in addition to the general legal directions, I should also give myself a number of specific legal directions. In particular she requested the following Directions:-
a. Bad character and/or previous criminal convictions.
I have given myself this direction earlier in relation to any evidence implying that he accused has previous criminal convictions or illicit drug use, or is generally a person of bad character.
b. Lies Direction.
This requested direction relates to differences between the accused’s statements to police and at the hospital when compared with his evidence. The prosecution submitted that if any of the accused’s statements or aspects of his evidence are found to be lies, then they are relevant to his credibility. There is no submission that they could be used as evidence of a consciousness of guilt. As I have previously identified, I have made findings that the accused deliberately lied both to the police, at the hospital and consequently his evidence denying the conduct alleged by D is also deliberately untrue. To the extent that I have made findings of the accused telling lies I direct myself that it bears only upon his credibility or believability as a witness.
c. Distress on the part of D.
In relation to D’s screams over the telephone as evidence of distress I have directed myself that the signs of distress may have resulted from other possible causes than the commission of this offence by the accused. Further, the evidence of distress can only be an aid to assessing the credibility of D if I first find that the distress was genuine and that it was consistent only with her evidence that the alleged offence took place. I further direct myself that I must exercise considerable caution in making this assessment because of the potential for other causes, particularly the one advanced by the accused to have given rise to the signs of distress.
d. Evidence of Complaint s.34M of the Evidence Act.
I direct myself that the two telephone calls to the triple 0 emergency number by D can only be used to potentially demonstrate consistency of conduct on the part of D, and to explain how the allegation of attempted rape first arose. The evidence of complaint cannot be used as proof of the matters asserted within the complaint.
Ms Brown for the accused attacked the credit of the complainant D and her brother David M.
Ms Brown pointed to the evidence of various witnesses about the events at the social club on the Sunday as being pertinent to the credibility of David M and D. She said that David M’s evidence about what happened at the club is inconsistent with a number of other witnesses and his credit suffers as a result. She submitted that his evidence about what events took place inside the shed or outside the shed is inconsistent with most of the other witnesses. Her point about David M is that his credibility about what he says he heard and observed when he arrived at D’s unit the following morning should be viewed in the light of his unreliability as a witness about events at the social club the previous day.
Ms Brown also submitted that D’s evidence about the events at the social club including whether her children were present for all or some of the time, when people came or left and whether any unwanted attention was paid to her by the accused are also matters which should adversely affect her credibility.
I do not accept that these criticisms of David M or D have any adverse impact upon their credibility. David M’s recollection of spending most of the time outside the shed rather than inside the shed is of no significance. Even if he did spend more time inside the shed than he recalled in his evidence, that does not cause me to doubt his credibility. People socialising at those premises would not have been static. They would not have remained in one place. People may well have moved around both in and out of the shed and witnesses recollections about where they spent most of their time is merely a reflection of their perception. Similarly, there is nothing about D’s evidence of the events at the social club which adversely affects her credibility. She did not attribute any inappropriate conversation or physical contact to the accused at the social club. She could easily have done so if she was looking to bolster a false allegation of attempted rape. Any variations between witnesses about people’s movements, arrivals or departures at an informal social gathering is entirely normal.
Ms Brown pointed to discrepancies between witnesses as to whether Trooper (Mr Finn) returned to D’s home with the others or not. She submitted that the discrepancies shows that some witnesses may have got together on this particular point in order to protect Trooper from any suggestion that he had breached his bail curfew by staying out later than he should. Ms Brown included in her criticism the potential for the credit of David M and D to be damaged by this topic. I do not accept that any discrepancies about whether Trooper returned to D’s home or not has any impact at all upon the credit of David M or D. The only witnesses who appear to have had a conversation about Trooper’s problem with a curfew were Trooper himself and Mr James. I accept that Mr James may have been subconsciously influenced by his later conversation with Trooper about his curfew problem. As I have already stated, I believe that Trooper did return to D’s home briefly and then made his way to the train station. To the extent that Trooper was not honest about walking with the group back to D’s home, I do not regard that as having any impact whatsoever upon the credibility of D or David M.
Ms Brown next submitted that D gave inconsistent evidence regarding conversations with the accused on the topic of him staying the night at her place.[26] She submitted that D was retracting from her initial evidence and was changing her account. I do not agree that there is any inconsistency within D’s evidence on this topic. A fair reading of her evidence makes it clear that she drew a distinction between the accused asking to sleep at her place compared with conversation regarding him staying through the night at her place while they all sat up drinking, talking and playing electronic games.
[26] Counsel referred to answers at Transcript 146 and Transcript 180.
Ms Brown referred to the prosecution argument that the cigarette butt located on the lounge room floor was consistent with the accused having dropped the cigarette butt in that position at the commencement of his attack upon D. Ms Brown submitted that the evidence relating to the cigarette butt is not consistent with D’s evidence. I do not need to deal with this argument any further. In my view the presence of the cigarette butt on the lounge room floor is consistent with it having fallen there during the violent struggle between he accused and David M. I do not regard that evidence as being consistent with or supporting the prosecution case. I should add that it is not inconsistent with the prosecution case either. I regard it as a neutral matter.
Ms Brown pointed to the evidence about the keys to the front door and submitted that this is a very important piece of evidence. The front door keys on the lanyard were found on D’s bed after the accused’s arrest. Ms Brown submitted that D’s evidence about unlocking the front doors; letting the accused back in; unlocking the wooden door again to show him out; the commencement of the physical attack upon her; and the keys being located on her bed is inconsistent with her account. It is submitted that her story does not ring true and is not credible. Ms Brown submitted that it was impossible for the accused to have pushed the door shut, locked it and removed the keys while perpetrating the physical assault on D. She further submitted that if he removed the keys there would surely be some injuries to D’s neck if he were holding keys while dragging her up to the bedroom. Ms Brown also pointed to the fact that there was no forensic link between Mr Hill and the keys in the form of DNA or fingerprints.
The obvious point to observe is that some objects can be handled by a person and no forensic evidence is detected. The absence of forensic evidence regarding the keys is not proof that the accused did not handle them. I do not agree with the submission that D’s evidence on this topic does not ring true or is incredible. The sudden and unexpected attack on D would obviously have distracted her from the detail of what she was doing with the keys and the lock or what the accused was doing with the keys and the lock. The fact that the keys were on a lanyard means that the accused did not necessarily have the keys in his hands during the attack upon D. He may have been holding the lanyard itself after removing the keys from the lock. The keys ended up on D’s bed because they fell there during the attempted sexual assault in the bedroom.
Ms Brown pointed to D’s evidence about being in the bedroom on the bed and seeing the accused starting to take his pants off.[27] She referred to watching the accused unbutton his jeans. During cross examination she corrected herself by saying that she didn’t mean that he was unbuttoning his pants but rather was fiddling with his pants. D did not know if they were jeans or tracksuit type pants. Ms Brown submitted that this was a change in her evidence once she realised that he was not wearing jeans but rather was wearing tracksuit pants. She submitted that this is a further blow to D’s credibility. I do not regard D’s correction or clarification of her evidence as an indication that she was attempting to change her story. She made the observations about the accused touching the front of his pants immediately after she had been pushed onto the bed and had her own jeans and underwear pulled down. She was fighting against the accused and it was patently obvious that there was a sexual motive. The touching of the front of the pants was a further indication of another step towards achieving that sexual objective. Whether he was attempting to unbutton pants with a button on the band or a fly, or undoing tracksuit pants, D’s evidence was about the nature of his action in loosening and dropping his pants. Any inconsistencies in this part of D’s evidence is insignificant and does not cause me to doubt her credibility.
[27] Transcript 158
Ms Brown then referred to the evidence about the phone calls between D and David M. She pointed to the evidence of Ms Cimesa, David M and D and argued that their evidence is irreconcilable with each other. Whilst there are differences between Ms Cimesa’s account of the phone calls and David M’s, it is important to note that D’s evidence is completely consistent with the Vodaphone phone records.[28]
[28] Exhibit P15
Ms Brown submitted that the independent phone records are consistent with the accused’s account of D attempting to make phone calls when she was in her son’s bedroom during the course of their verbal altercation. I reject that submission as being a reasonable possibility. If there was no physical altercation but merely a verbal one, there would be nothing to prevent D from answering the incoming call and speaking words to her brother about it. There is no reason why D would answer the incoming call and then simply scream over the open line unless the circumstances were as she described. I accept that she answered the incoming call from her brother by pressing the button but was not certain that there was an open line. She screamed because she was screaming throughout the attack in her bedroom and she needed help.
I reject the submission that the evidence between Ms Cimesa, David M and D is irreconcilable. Ms Cimesa and David M had different recollections about the incoming phone calls and why they were missed. Those inconsistencies do not have any impact upon D’s evidence on the subject of the phone calls. The independent records speak for themselves and are in line with D’s evidence.
In relation to the two triple 0 phone calls made by D, Ms Brown relied upon the evidence of David M that he told his sister to ring the police. She submitted that it reeks of illogicality that D had not thought to call the police herself and had to be told to call them by her brother. D’s evidence was that she rang the police and was not directed to do that by her brother. I find that D made the first phone call to police of her own volition. The struggle between her brother and the accused was in progress. When the police did not arrive immediately David M may have told her to ring again but in any event, D was becoming concerned about what her brother might do to the accused. She wanted the police to get there urgently. I reject the suggestion that there is anything illogical about the way D made two phone calls to triple 0. The suggestion that David M may have suspected that a sexual assault was happening and that his direction to his sister to ring the police resulted in her making a false allegation of attempted rape is an argument that I find to be fanciful and incredible. I accept unreservedly that D made the first triple 0 call at the first reasonable opportunity while the physical altercation was taking place between her brother and the accused outside the front of her home unit. She was not prompted to make the call nor influenced by her brother in any way as to the content of the call.
I remind myself that the accused does not have to prove a motive for the complainant to lie. My rejection of the accused’s suggestion on this point, as with other suggestions he has made about motive, does not mean that I can use that rejection to support the Crown case. The absence of evidence of a motive does not strengthen the prosecution case. It is neutral. In that event, it would be wrong to conclude that, because there is no apparent reason to lie, the complainant must be telling the truth. I accept that lies can be told for no apparent reason. Most importantly it is not for the accused to provide a motive for the complainant to lie or to prove such a motive. At all times I bear in mind that the prosecution bears the onus of proof beyond reasonable doubt.
Ms Brown submitted that there is no evidence of distress arising from either of the triple 0 emergency calls. She submitted that D did not sound distressed in the first call to the police. She also argued that before the police arrived she hid the bong they had used and had plenty of time to make up a false story. I do not intend to make any use of D’s tone of voice during the first triple 0 call as evidence of distress. I do not agree that she sounds calm but is merely sufficiently composed to be able to tell the police why she needs their assistance. I reject the argument that she used the time prior to the police arriving to hide the bong they had used to smoke cannabis. Her evidence was that she put it away under the sink where it was usually kept. The fact that they smoked cannabis throughout the night was not a significant issue. I reject the suggestion that this formed some part of D’s motivation to manufacture a false story against the accused.
In relation to David M’s arrival at the house, Ms Brown submitted that any screaming he heard was equally consistent with the accused’s evidence. She also submitted that variations in David M’s evidence about the precise words his sister uttered mean that I should not be satisfied about any particular form of words. As I indicated earlier, I accept and find that David M did hear his sister screaming from inside her bedroom but I am not satisfied about the precise form of words. I have already noted that D had no memory of yelling out to her brother at the window.
Ms Brown submitted that based on the evidence of Constable Marshall, one of the first two police officers to arrive, D was outside the unit yelling and screaming while her brother was holding the accused down. Ms Brown submitted that this evidence is consistent with the accused’s confused belief that he had been set upon by a number of people. Ms Brown submitted that when the accused was telling the police that he was attacked he had been severely beaten, had lapsed in and out of consciousness and that his perception of things may have been disturbed. The point Ms Brown was making was that the accused statements to the police in the early stages that morning may not have been deliberate lies but rather the product of confused thinking. I do not accept that submission. For the reasons which I have already articulated I find that the accused embarked on the deliberate telling of a false story at the outset to deflect attention away from his own conduct.
Ms Brown pointed to D’s evidence of her injuries and the photographs of some minor red marks on her neck. She submitted that the injuries and marks are inconsistent with D’s account of the violent attack upon her. She said that you would expect to see scratches or severe bruises if she were attacked in the way she described. She raised as a possibility that when her son Dylan awoke during the argument and was screaming and upset, that he may have grabbed at his mother and caused the red marks on her neck. While there is evidence that her son was awake and was screaming there was nothing to suggest that he was clawing at his mother or holding her in a way which might possibly have produced those marks. The injuries sustained by D are consistent with the attack upon her. I reject the assertion that they are wholly inconsistent with her allegations. The fact that she did not suffer more severe injuries is not inconsistent with her account. I observed that she is a small, lightweight person. The accused was physically bigger and stronger. She was caught by surprise and moved a short distance and pushed onto the bed where the balance of the physical altercation took place. I accept beyond reasonable doubt that she sustained the injuries she described during the physical altercation with the accused. The accused claims that he never had any physical altercation with her but only a verbal argument. The fact that there is no forensic evidence in support of the allegation of physical contact does not cause me to doubt the fact that the offence occurred the way D described.
Ms Brown submitted that the toxicology results showing an absence of methylamphetamine in the accused’s blood is not inconsistent with his evidence. The blood sample taken at 2.25 pm on Monday 5 April 2010 may not have shown the presence of methylamphetamine, she says, because it was smoked and not injected and the small $50 amount was shared equally with D. Ms Brown relied upon the evidence of Professor White to support this assertion.[29] In my view Professor White properly qualified his opinion about detecting the presence of methylamphetamine in a person’s blood. Although he conceded that smoking methylamphetamine fumes may result in less being ingested than through direct injection, he made the obvious point that the detection of methylamphetamine in a blood sample, will depend upon the amount consumed. There was nothing specific put to Professor White about the circumstances in this case that would give rise to a reasonable possibility that the smoking as described by the accused would not have resulted in amphetamine being absorbed into his blood stream. The accused described consuming at least half of the point that he says he purchased for $50. I reject as an extremely remote possibility, and not a reasonable one, that he could have smoked that amount of methylamphetamine and have no residue in his blood when the sample was taken that afternoon.
[29] Transcript 221-222
Finally Ms Brown submitted that the accused’s evidence about buying the methylamphetamine and returning to D’s home had the “ring of truth” about it.[30] She asked why would the accused make up such a story when he could have simply said he went off to buy some cannabis. She asked why would the accused implicate himself in using methylamphetamine unless it were true? The obvious answer is that the accused needed to explain a reason for returning to D’s home. Going off to buy more cannabis is not something that would need to be kept secret from D’s brother. He was using cannabis too. I find that the story about buying and using methylamphetamine was a complete fabrication designed to raise the spectre of a secret mutual interest in amphetamines and a mutual sexual interest. I reject his evidence about the methylamphetamine and his assertions about what took place when he returned to D’s home. That evidence does not raise any reasonable doubt about D’s credibility.
[30] Transcript 384
Findings
I find that the accused waited in the vicinity of D’s home and was able to observe her brother David M leave her premises. I find that he used a false story about needing a cigarette lighter to regain entry. When he was asked to leave I find that he made sure the door was closed and locked during the initial stages of his attack on D. He forced her to the bedroom and physically struggled with her while pulling down her jeans and underwear. He made statements indicating his sexual intentions and touched her in the area of her vagina. He also undid his own pants in his pursuit of his intention to have sexual intercourse with her.
I find proved beyond reasonable doubt that the accused intended to have sexual intercourse with D. I find that the accused knew from D’s words and all of her conduct that she was not consenting to any act of sexual intercourse. I am satisfied beyond reasonable doubt that the actions the accused took towards fulfilling his intention of sexual intercourse were well advanced. They were more than mere acts of preparation. He had embarked on the commission of the offence of rape. I am therefore satisfied that the accused committed the offence of attempted rape.
I find the accused Guilty.
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