R v Jackson
[2007] SADC 140
•21 December 2007
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v JACKSON
Criminal Trial by Judge Alone
[2007] SADC 140
Reasons for the Verdicts of His Honour Judge Nicholson
21 December 2007
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - MISCELLANEOUS OFFENCES - OTHER MISCELLANEOUS OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - ABDUCTION AND LIKE OFFENCES - GENERALLY
Trial by judge alone - accused charged with one count of robbery, one count of aggravated threatening life, one count of rape and one count of kidnapping - verdicts: not guilty on counts 1 and 4, guilty on counts 2 and 3.
Evidence Act 1929 ss12A, 13, 34I and 69; Criminal Law Consolidation Act 1935 ss19, 39, 48 and 137; Juries Act 1927 s7; Juries Rules 10 and 16, referred to.
R v JACKSON
[2007] SADC 140Introduction
The accused, Allan Wayne Jackson, was charged on Information dated 29 January 2007 with four offences; robbery contrary to s137(1) of the Criminal Law Consolidation Act 1935 (“CLCA”), aggravated threatening life contrary to s19(1) of the CLCA, rape contrary to s48 of the CLCA and kidnapping contrary to s39 of the CLCA. Throughout these reasons I refer to the accused as either “the accused” or “Jackson” interchangeably. The accused was known generally by his nickname “Shadow” and was referred to as “Shadow” in the evidence from time to time.
The accused pleaded not guilty to all four charges. He made a late election pursuant to s7 of the Juries Act 1927 to be tried by judge alone. The trial was listed to start on Wednesday, 7 November 2007. On the morning of Tuesday, 6 November 2007 the accused, through his counsel, made an oral election for a trial by judge alone and brought an application for the rules, ordinarily applicable as to the timing of any such election, to be dispensed with in reliance on Juries Rule 16. There was no opposition from the Director of Public Prosecutions either to the making of the application or to the late election. Upon hearing further from counsel for the accused I was satisfied that there was a proper basis to waive compliance with the prescribed time limits. In the circumstances, I formed the view that it would be unjust not to grant the application. I do not set out the reasons for that finding here but they are evident from the transcript of the submissions put to me at the time of hearing the application. Counsel for the accused filed in court a Juries Rule 10 certificate and I was satisfied that the accused had been properly advised of his rights prior to making this election. Accordingly, I ordered that the trial proceed by judge alone.
The accused also filed a Rule 9 notice on 2 November 2007 and this application was heard by me on the morning of Tuesday, 6 November 2007. By that notice the accused applied for an order excluding from the evidence to be adduced by the Director, the record of conversation with the accused dated 28 August 2006.
There were, in fact, two recorded conversations with the accused on 28 August 2006. The video recording of each was admitted as an exhibit during the voir dire hearing that was conducted, as VDP1 and VDP2. The accused’s application related to VDP1 only. In any event, the Director indicated that he had no intention of adducing evidence of the second and shorter interview in VDP2. After hearing from counsel, I took time to consider the matter and delivered a ruling on Wednesday, 7 November 2007, excluding from the evidence proposed to be adduced by the Director the whole of the record of interview as contained in VDP1.
The charges
The accused was charged on Information with the following offences:
First Count
Statement of Offence
Robbery. (Section 137(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Allan Wayne Jackson between the 21st day of August 2006 and the 24th day of August 2006 at Port Augusta, used force against P in order to commit the theft of a Westpac Key card and the force was used at the time of the theft.
Second Count
Statement of Offence
Aggravated Threatening Life. (Section 19(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Allan Wayne Jackson between the 21st day of August 2006 and the 24th day of August 2006 at Port Augusta, without lawful excuse, threatened to kill P, intending to arouse a fear that the threat was likely to be carried out, or being recklessly indifferent as to whether such a fear was aroused.
It is further alleged that the circumstances of aggravation are that the offender had, when committing the offence, an offensive weapon in their possession.
Third Count
Statement of Offence
Rape. (Section 48 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Allan Wayne Jackson between the 21st day of August 2006 and the 24th day of August 2006 at Port Augusta, had vaginal sexual intercourse with B, without her consent.
Fourth Count
Statement of Offence
Kidnapping. (Section 39 of the Criminal Law Consolidation Act 1035).
Particulars of Offence
Allan Wayne Jackson between the 21st day of August 2006 and the 24th day of August 2006 at Port Augusta, unlawfully took or detained B, with the intention of committing an indictable offence against her, namely rape.
Legal considerations and general directions
Evidence was adduced by the prosecution with respect to each of these four charges. However, there also was evidence of both a specific and more general nature of the accused allegedly engaging in acts of violence directed at the male complainant, P, and the accused allegedly being involved in the supply of illegal drugs to the two complainants and also to other persons. This evidence was led by the prosecution by way of background and explanation of the relationship that existed between the accused and the two complainants. It was not led by the prosecution as propensity evidence and cannot be used for that purpose.
On the prosecution’s application with no opposition from the accused, I permitted, in accordance with s13 of the Evidence Act 1929, the female complainant, B, and the prosecution witnesses, Breanna Pendry and Jasmin Retallack, to give their evidence with a one-way screen in place between the witness box and the accused. I made the same ruling with respect to the evidence of Kayleen Mills notwithstanding opposition from the defence. I also closed the court during the evidence of the female complainant, who was sixteen at the time of giving evidence, in accordance with the requirements of s69 of the Evidence Act. I remind myself that I am not to draw from the fact of these arrangements any inference adverse to the accused and nor am I to allow these arrangements to influence the weight, if any, that I give to the evidence of these witnesses.
Whilst the Court of Criminal Appeal in this State has made it plain that it is not necessary for the court having conducted a trial by judge alone to set out in the reasons for verdict the standard or obvious directions of which the trial judge is bound to be aware, I do nevertheless remind myself of the following.
(i)An accused person is presumed to be innocent of all charges unless and until guilt on any particular charge has been proved beyond reasonable doubt.
(ii)The prosecution bears the burden of proving each particular charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of each offence. The accused does not carry any onus of proof and to the extent that he might put forward a defence he does not have to prove it.
(iii)By way of amplification of the above, it is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to the establishment of any element of a charge, then I must give the accused the benefit of that doubt and find him not guilty of the charge.
(iv)Each of the four charges concerns a separate offence and I must treat each separately and consider only the evidence relevant to that charge. If I were to find the accused guilty of one of the charges on the evidence relevant to that charge alone, I must not use that evidence nor the fact of that finding, to assist in the proof of any of the other charges. Nevertheless, such evidence may be relevant to the background or circumstances surrounding the events said by the prosecution to give rise to each of the offences charged.
(v)The charges do not stand or fall together. If I were to be satisfied beyond reasonable doubt that the accused committed one of the offences charged, it does not follow that he also should be found guilty of any of the other offences charged. Depending on my findings on the evidence, I may find the accused not guilty of all offences charged, guilty of one or more charges or guilty of all of the charges.
(vi)Notwithstanding the matter raised in (v) above, if I were not to be satisfied beyond reasonable doubt that a complainant was truthful and reliable with respect to one or more of the charges on the Information, I must then consider whether I can be satisfied as to the guilt of the accused on any remaining charges. That is, I must remember that if I am not satisfied as to the credibility and reliability of one of the complainants, then that lack of satisfaction will be a factor relevant to my consideration of the other charges to the extent to which that complainant’s evidence is critical to those other charges.
(vii)On the evidence adduced by the Director, it is plain that a number of the witnesses who gave evidence about the critical events on the evening and night of Tuesday, 22 August 2006 had been drinking alcohol and some had been taking drugs. I will deal with this in more detail when I come to review the evidence of the various witnesses. However, I remind myself that the intoxication of a witness may affect the proper assessment of his or her reliability as a witness. It is common experience that intoxication can have an adverse bearing on a person’s perception of relevant events. It is also common experience that intoxication can affect a person’s subsequent recall of relevant events. Because intoxication can affect or alter a person’s state of mind, the intoxication of any of the witnesses is relevant to my consideration of their evidence and to my assessment of their credibility and reliability.
(viii)I have reminded myself of the normal directions given in this state to juries concerning the proper approach to assessing the various witnesses who gave evidence, their credibility and reliability and the proper approach to drawing inferences of fact. I do specifically note that in this case the accused elected not to give evidence in this court; he remained silent. I remind myself of the following matters. He was not bound to give evidence. He has the right to decline to give evidence. Because that is his legal right, I must not draw any inference adverse to him or the case he puts forward from the exercise of that right. There may be many reasons why he did not give evidence and I should not speculate on those reasons. The recurrent theme I must always bear in mind is that it is for the prosecution to prove its case beyond reasonable doubt.
The accused’s silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.
(ix)Finally, I remind myself that it is not a question of preferring one version over any other. The sole task before me is to determine whether or not the prosecution has proved the elements of each charge considered separately and beyond reasonable doubt. If I am unable to say where the truth lies in respect of a charge, then it necessarily means that the prosecution has failed.
I turn now to set out the basic elements of each of the offences charged, each of which elements the prosecution must prove beyond reasonable doubt.
Robbery
The elements of robbery, relevant to this case, are:
(i)that the accused committed a theft;
(ii)that the accused used (or threatened to use) force in order to commit the theft;
(iii)that the force was used (or threatened) at the time of, or immediately before the theft.
For the accused to be found guilty of robbery it must first be found that he was guilty of theft.
Theft
The elements of theft are:
(i)that the accused dealt with property;
(ii)that the accused did so dishonestly;
(iii)that the accused dealt with the property without the owner’s consent;
(iv)that at the time the accused dealt with it, he intended either:
(a) to deprive the owner permanently of the property, or
(b)to make a serious encroachment on the owner’s proprietary rights; that is that the accused intended to treat the property as his to dispose of, regardless of the owner’s rights, or to deal with it so as to create a substantial risk that the owner either would not get it back or, if he did, that its value would be substantially impaired.
What is dishonest is a question for the jury to determine in accordance with the standards of ordinary people. The accused must be shown to have known that his dealing was dishonest in terms of those standards.
Threatening life
It is an offence for a person, without lawful excuse, to threaten to kill or endanger the life of another person intending to arouse fear that the threat will be, or is likely to be, carried out, or being recklessly indifferent as to whether such a fear is aroused. The prosecution must prove three elements:
(i)that the accused made a threat; that is, a declaration of hostile intent which is made seriously, as distinct from merely "sounding off", and intended to be taken seriously;
(ii)that the threat was directed towards the life of another person; that is, a threat to kill another person or a threat to endanger the life of another person;
(iii)that, at the time the threat was made, the accused intended to arouse a fear that the threat would be, or was likely to be, carried out or was recklessly indifferent as to whether such a fear was aroused.
It is not necessary for the prosecution to prove that, at the time the threat was made, the accused intended to carry it out. What the prosecution must prove is that, at the time the threat was made, the accused intended to arouse a fear that the threat would be carried out or was likely to be carried out.
It is common ground in the case before me, that if these three elements are made out on the facts, no issue of lawful excuse will arise.
In this case the prosecution alleged aggravated threatening life and to succeed with this charge it must prove beyond reasonable doubt a fourth element, namely, that the accused had an offensive weapon in his possession at the time of committing the basic offence.
Rape
The offence of rape is committed when a person has sexual intercourse with another person, without the consent of that other person, knowing that the other person does not consent, or being recklessly indifferent as to whether the other person consents, and this is so whether or not that other person offers physical resistance. The prosecution must prove three elements.
First, there must be an intentional act of sexual intercourse. Relevant to the present case, sexual intercourse includes the penetration of the female vagina by the male penis.
The second element requires the prosecution to prove that sexual intercourse was performed without the female’s consent. Consent may be indicated by words or conduct or both. There is a distinction between submitting to intercourse and consenting to it. Mere submission is not of itself consent, although it may be some evidence of consent. However, if a female submits to intercourse as a result of force or threats, or simply because resistance appears to be dangerous or futile, that is not consent. Submission through force is not consent, and submission through fear is not consent. Consent must be the free and willing participation by the female in the act of sexual intercourse.
The third element requires the prosecution to prove that the accused either knew that the female was not consenting or was recklessly indifferent as to whether she was consenting. An accused would be recklessly indifferent if, realising that the female might not be consenting, he proceeded to have sexual intercourse with her irrespective of whether she was consenting or not.
Kidnapping
The offence of kidnapping in its present form is found in s39 of the CLCA. Ordinarily the Director of Public Prosecutions would need to satisfy each of the following elements beyond reasonable doubt in order to make out this offence:
(i)that the accused took or detained the female complainant, B;
(ii)that the accused did so without her consent;
(iii)that the accused did so with the intention of committing the offence of rape.
B was 15 years old at the time of the events asserted and relied on by the prosecution. The prosecution maintains that B did not consent to being taken by the accused to his house on the night of 22 August 2006 or to remaining there. However, by virtue of s39(2) any consent is to be ignored where the person apparently giving the consent is a child. Therefore, it would appear that the prosecution need only prove the first and third elements above in order to make out this offence. I return to this issue later in these reasons.
The prosecution case – in essence
The prosecution case, in respect of any of the four charges, will fail unless I find beyond reasonable doubt that the complainants, B and P have accurately described, in court, the events of the evening and night of Tuesday, 22 August 2006 relevant to that charge.
B’s evidence is essential to the prosecution case on the rape and kidnapping charges. P’s evidence is essential to its case on the robbery charge. Both B’s and P’s evidence are essential to the aggravated threatening life charge.
B gave her evidence in significant detail and with confidence. Notwithstanding her young age she came across as quite mature and experienced. I formed the impression that she had a good recollection of the critical events all of which occurred a little more than a year before she gave her evidence. She struggled at times with dates and, in particular, with the order of the events which occurred prior to and after the critical day, 22 August 2006. In many respects this was to be expected. I prefer her evidence to that of P where they differ with respect to the general narrative of events. P was less impressive. I thought his recollection was at times unreliable and his evidence was self-serving from time to time allowing reconstruction to intrude. Furthermore, his capacity to accurately recall events was clearly affected by excessive drug and alcohol use as he, himself, acknowledged.
The summary of the prosecution case, which follows is taken essentially from the evidence-in-chief of B, supplemented by the evidence of P insofar as the events giving rise to the robbery and aggravated threatening life charges are concerned.
During the first half of 2006 B who was then fifteen and her boyfriend, P, were travelling around Australia. They first visited Port Augusta in about May 2006. They left and went to other places including Melbourne and Sydney, but returned to Port Augusta on their way back to Perth for a period during July and August 2006. On the second trip they stayed at the house of friends Leticia Johnson and Chris Hodshon. They were supporting themselves from P’s Centrelink payments.
B first met the accused during the May visit to Port Augusta. She also came into contact with him on a number of occasions during the July/August visit. Both she and P were regular users of cannabis. P used it for pain relief, he having been in a car accident in which he suffered serious injuries. The accused was introduced to them as a person who could supply them with cannabis. Each time they purchased cannabis it was in the amount of a $25 bag.
They paid cash during the May visit and left Port Augusta not owing the accused any money.
During the second trip they purchased a bag on credit. P used a mobile phone as “collateral”. According to B and P the arrangement was that he would pay the $25 as soon as he was paid his Centrelink allowance and they would get the phone back.
On a later occasion B bought another bag on credit. This time she used Playstation games that they had been lent to them for their own use. The same arrangement was entered into, that is, that she was to bring money when it was available and would then retrieve the games. The games belonged to a friend of Jackson’s, James Coates and to Leticia Johnson.
B said this as to what took place between her and the accused on this occasion (T77):
QCan you tell us what you said to him or what he said to you.
AI told him that the money would be paid back.
QWhat did he say.
AIf the money – basically, I feel a little uncomfortable saying the exact words, but he basically said that if the money wasn’t returned, he would take it out of my body.
QWhat did you understand him to mean by that.
AI thought he was just – I didn’t think he was serious about it, but either way, I thought that we would be getting the money to him – I can’t remember the day that I told him but.
QDid he say anything else about what he would do to you if the money wasn’t paid.
AHe just said that he would lock us away in a bedroom for a few hours.
B and P next saw the accused at his house. James Coates had come to speak to them about getting his games back. When he realised that the games were with the accused he insisted that they were all to go to the accused’s house to sort the matter out.
According to B this occurred on the afternoon (about 4 or 5 pm) of 22 August. She, Coates, Russell Martlew (“Rusty”) and, she thinks, another male went with her and P to the accused’s house. According to B (at T80):
P and I waited outside with Rusty and the other male. Coatesy went inside and when he came back out, Mr Jackson was standing with him. He was really angry. He started yelling at P and saying that he wanted the money – he wanted the money that he was owed, plus P’s whole pay cheque by tomorrow midday. There was a time where he actually grabbed P around the back of the head and tried to punch him but Coatesy stopped him and said there was not going to be any violence today.
After that all, but the accused, went back to Leticia Johnson’s house and, according to B, “everybody just started drinking, except me …”
A number of other people visited the Johnson house that night. At first B smoked marijuana in the laundry and watched everybody else drink. She did not drink alcohol that evening. She did have five or six cones of cannabis. This was a similar amount to that which she usually smoked in an afternoon or an evening. When asked how that usually made her feel, she said “It just relaxed me”.
The accused arrived at the Johnson house in his car at about 10.30 that night; he had Breanna Pendry and Kayleen Mills with him. They waited outside in his car whilst the accused went inside. According to B, when the accused came in “He was really angry; he started yelling at P … I could hear them yelling [in the hallway]”. She said that they were arguing about the games and the money.
Jackson and P were told to leave the hallway area near the bedroom of Johnson’s children and they went and sat down in the dining room at the kitchen table. Also at the table at this time was Coates, Rusty, Johnson and her partner Chris Hodshon.
B said that the main reason for the argument was the Playstation games. The accused was swearing at P calling him names. At one point he said “You should not rip off my friends. You’ve been an idiot” (T83). P protested saying that the problem was with his Centrelink payments but, according to B, the accused was not really listening, he was too angry.
At this point the following exchange-in-chief occurred (at T83-84):
QWhat else was said after that.
AI was told to get in the car, and Mr Jackson was telling P that I would be OK and that nothing would happen to me, and telling him not to worry.
QWhat arrangement, if any, was made about repaying the debt that Mr Jackson said was owed.
AHe asked – Mr Jackson asked for P’s key card and PIN number, and he told P not to lie about the PIN number because he could easily make a phone call and find out anyway.
QCan you remember the words of that conversation.
AMr Jackson said to P “Give me your PIN number”. P replied “Its my birthday” and Mr Jackson, I think, must have thought that P was being smart or something, and told P to give him the number, so P gave him his PIN number and the key card and I can’t remember where Mr Jackson put the key card. He couldn’t remember the PIN number so I think it was either Kerry-Ann or Pauline, that he asked them to write the number on the phone and text it to someone. I can’t remember which phone.
QDid you see P hand over his bankcard to Mr Jackson.
ANo I didn’t. I was sitting behind P at the time.
QAt any stage, did you see Mr Jackson with P’s bankcard.
AYes, I did.
B then described an incident where the accused attempted to thump P’s hand on the table. B also described an incident where the accused pulled out a knife and put it on the table saying to P words to the effect, “if you want to stab me here’s your opportunity”. It was at this point that she was told by the accused to go and wait outside for him.
At this point B started to cry, got up and walked outside. She went and sat in the carport on a couch in the dark. Soon after, the accused came outside and went over to her. B asked him if she could go inside to get a drink of water because she was finding it hard to breathe. She went inside and
… grabbed P and took him into the bathroom, I gave him a hug, I told him I loved him, and he told me that – he told me not to worry because he would go to the police station and he’d get me out before anything happened.
At that point the accused walked back in and told B to hurry up and to go back out into the car. Instead of going outside immediately, B left the bathroom and waited outside in the hallway.
The bathroom door was “slightly ajar”. B was looking into the bathroom when she saw, reflected in the mirror, the accused pull out a gun from somewhere. The gun was perhaps 12 or 15 inches long. It had a wooden handle and was “a bit shabby”, it looked pretty old, the barrel was dark grey. B said that the accused pointed the gun at P near the chest and chin, around the throat area, and told P that “he was lucky he wasn’t dead yet, and he could kill us in the house and no one would say anything” (T88).
P went really white, B ran back outside the front of the house, “I didn’t know what to do. I was trying to think of a way of getting away, but I couldn’t.”
The accused returned outside to the front of the house and told B to get in the car. He told her to get into the middle of the back seat. Mills sat on her left hand side and Pendry sat in the front passenger seat. The accused then drove the car to his house. B thinks they arrived at the accused’s house at about 11.30 or quarter to 12 that night but was not sure.
B said that she did not want to go with the accused in his car that evening and did not want to go into his house on this occasion. She went because “I was scared and I didn’t know what else to do.” When asked what had made her scared she said “just the way that he was, the way that Mr Jackson was acting and then seeing the gun, I thought that he was going to kill P and possibly me” (T90).
B did not see where Jackson put the gun after holding it near P’s chest and chin area and she did not see the gun again.
When B went inside Jackson’s house that night she sat down on the couch near the kitchen counter; Jackson gave her a can of Woodstock which she did not drink and a cigarette and told her to relax and stop crying “because P wasn’t worth the tears”.
There was a number of other people at Jackson’s house that night. Everyone was dancing and drinking. Jackson sat beside B and started saying horrible things about P. B was upset throughout and spent much of the time crying.
She had been in the lounge room for about fifteen minutes while people were drinking and dancing when Mills told Jackson that she would like some “white”. Jackson told Mills and B to come down to his bedroom. B, Mills and Jackson went down the corridor to his bedroom. B sat on the end of the bed away from the pillows. She described how she saw Jackson supply Mills with some white powder in two plastic bags mixed with Woodstock. B declined an offer to have some of the powder.
Mills then left the bedroom and closed the door. At that point B was still crying and Jackson was telling her how P was “a loser” and that he (Jackson) would figure out a way of settling the debt where P would not get hurt. B asked him how and Jackson told her that he wanted her to “suck his dick”. She did not say anything but “cried harder”. She said, in chief, that she did not want to suck his penis (T94).
Jackson told B that she had a decision to make – either do it then or later. She said if she had to do it at all she wanted to do it later and asked him if she could call her grandmother. He permitted this. B told Jackson her grandmother’s phone number so that he could enter it into his phone and he called the grandmother. When the grandmother answered Jackson gave B the phone so that she could speak to her. B asked if Jackson would leave the bedroom while she spoke to her grandmother “in private” – and he did this.
Whilst B was crying on the phone and “sort of explaining to her what was happening” Jackson walked back into the room and asked if he could talk to the grandmother. B gave Jackson the phone. Jackson said to the grandmother words to the effect that “everything was going to be OK, that B was going to be on the bus back home the next day and that she would be fine”.
B told the court that she had told her grandmother that “we owed someone money and that the person we owed money to was now expecting to take the debt – expecting me to pay the debt with myself”. She spoke for about five minutes with her grandmother before Mr Jackson walked back in.
After that she and Jackson went back and sat down in the loungeroom; she started crying again – everybody was trying to “pull me up and encouraging me to dance”. She did not tell anybody else what Jackson had been talking to her about. B fell into conversation with a man called Chris about piercings. She asked Jackson if she could go and get her piercing needles from Leticia Johnson’s house. Chris had asked her if she could pierce his nipples for him. According to B, Jackson said “No, because he didn’t want me to run into P” (T98). She went back into the loungeroom and continued speaking to Chris.
After a while Jackson came into the loungeroom and told her to come back down to his bedroom. She went with him and sat down. Before they got a chance to say anything Pendry knocked on the door and came into the bedroom. She told Jackson that she was leaving the house with another man and left.
B continued crying. Mills then came into the bedroom with the telephone and told Jackson someone wanted to talk to him. B thinks she and Mills both then went back into the loungeroom where B continued to talk to the man called Chris about piercing him the next morning.
Jackson and B went back into his bedroom for a third time. She had complained about a collar that she had on and Jackson asked Mills to get his toolbox out of the car which she did. Jackson then used a screwdriver to undo B’s “dog collar” and sent Mills out to put the toolbox back in the boot of the car. B and Jackson stayed in the bedroom and the door was closed. Jackson asked her to hug him. She did not want to but he grabbed her by the arm and pulled her down to him on the bed. Jackson told B that he had changed his mind; that he did not want her to suck his dick anymore but wanted her to have sex with him. B said she did not want to and started crying again and said that she wanted to see P (T100).
Jackson said “that would be impossible, because P was in the boot of a car going over some of the bumpiest roads in Port Augusta with a bag over his head”. At this point B had been sitting at the end of the bed away from the pillows with her legs hanging over the bed and facing the wall. Jackson then stood and turned the light off. B had moved up to the end of the bed with the pillows. She heard a drawer opening and closing and a rustle of a wrapper. However, she then said “I don’t know, I wasn’t really thinking about what I could hear”. She felt Jackson come back and sit down on the bed. She pulled her knees close to her and wrapped her arms around her legs. She then described how Jackson put a hand around one of her ankles and pulled her legs down (T102). Apart from her shoes which she had taken off, she was wearing all of her clothes at that stage. When Jackson pulled her legs down she hit her head on the wall and then her head was on the pillow. She had her hands up across her chest and was wiping her face because she was still crying. Jackson grabbed her hands and put them above her head. B then described how Jackson removed her clothing and had penile vaginal intercourse with her (T102-107).
There are a number of aspects of this event that B could not recall or be sure about. She did not know whether it felt like he was wearing a condom. She did not know how long the penetration occurred for, but thought it was minutes. She did not know how long he moved up and down for. She did not know whether his penis was hard or soft. She did not know whether he ejaculated or not.
When he had finished he told B to have a shower and to do a good job of cleaning herself up (T107). He said that having sex with her “wasn’t worth it”.
B had a shower and dressed into her own clothing. She did not want to change into something that he had given her. She dressed in the bathroom. After showering and dressing she went back into the bedroom. She observed that the sheets had been changed and she thought she heard the washing machine going.
Jackson told B that he was going to go to bed because he had court in the morning and he told her not to go anywhere and not to tell anyone (T108). He said not to tell anyone “because he had my nanna’s phone number, he knew her name and he could quite easily find out where she lived”.
B went back into the loungeroom; it was about 1.30 or 2.00am in the morning at this point. She sat down with Mills. The two of them spoke together until 7am in the morning “on the dot”. She did not go to bed or go to sleep that night. B said nothing to Mills of what had occurred between her and Jackson in the bedroom.
At 7am Mills and B went into Jackson’s bedroom and woke him up so that he could go to court. This exchange occurred in examination-in-chief (T109):
QIn between the time that you left Mr Jackson’s bedroom in the early hours of the morning, and waking him up, did you have any opportunity of leaving the house.
ANo. I tried all the windows, but they were locked, and I couldn’t figure out the alarm.
QWhat about the doors to the house.
ANo, they were all locked.
QHow did you know that there was an alarm.
ABecause when we walked in, when I had first – when Mr Jackson had taken me to his house from Leticia’s the alarm went off and he told one of the boys to push the button to turn it off.
When Jackson got up he told Mills and B to get into the car. Jackson went to the Westpac Bank. Whilst B was in the car she saw the following:
Mr Jackson got out of the car, he went up to the ATM machine, placed in the card, he started pushing the buttons, a receipt came out of the machine. He looked at the receipt, scrunched it up, threw it on the ground and started getting really mad (T109).
Jackson then got back in the car “and started saying how P was dead and that there was no money in the account and he was just really angry, he was calling P a lot of names”.
They then went to Centrelink at which time, B asked Jackson if she could go to the police station “to see if P had made a report, and if so, tell them that I was fine”. Jackson told B that she had five minutes to go to the police station. If she was not back then he was going to come and look for her.
According to B she then walked across to the police station and asked if P had come in and made a report. The police officer “told me that P hadn’t been in there”. Mills then came in to the police station and started crying. B said in examination-in-chief that she did not tell the female police officer what Jackson had done to her earlier that morning but she told her that he had taken her from where she was staying (T111).
Jackson then came into the police station. He put an arm around B and an arm around Mills and walked them to the car. They had been in the police station about five minutes. After this they went looking for P. According to B they ended up at the Johnson house where, according to B,
Leticia had told us that P had left early that morning at about 4 o’clock with both mine and his stuff. I told her I didn’t believe her, so they, both [Jackson] and Leticia, took me inside to show me that my clothes and everything was gone (T112).
Rather than leaving Jackson at this point, B stayed with Jackson and Mills. They drove to pick up Pendry and then to pick up Jackson’s children. They all then went back to Jackson’s house. Back at Jackson’s house he told them he had to go to court but he wanted Pendry, Mills and B to watch his children. Jackson then left. Before Jackson left, B asked him if she could go to the phone box to phone her grandmother. He said “yes, but only to be five minutes”. According to B, Jackson told Pendry that if she was any longer than five minutes, Pendry was to call him and let him know.
Mills and B told Pendry that they were going to walk to the phone box so that B could ring her grandmother and tell her what was happening. Instead of going to the phone box, they continued to look for P. They found P sitting in the lounge room of Leticia Johnson’s house (T115-116).
P and B were then taken by another friend to stay in a house over on the east side of Port Augusta. They stayed there for two or three days. B thinks it was a Friday or Saturday that they decided to leave Port Augusta. They went to a truck stop planning to hitchhike back to Western Australia. B said that it was she (not P) who spoke to a person at the Mobil Truck stop about some of the things that had happened, but “I didn’t go into any details”. In time, the police arrived and spoke to them and a day or two later she gave a statement.
B said that she did not consent to Jackson having vaginal sexual intercourse with her in the early hours of 23 August 2006. She said that she did not willingly go with him in his car to his house that night. She said that the first opportunity she thought she had to leave his house was the next morning when Mr Jackson had to attend court and she was left with Mills and Pendry (T124).
P also gave evidence about the events on Tuesday, 22 August 2006. Before doing so, he spoke of a prior occasion when he and B ran into Jackson at the bakery in the main street of Port Augusta. Whilst B was out of earshot, Jackson offered P money to be able to take B home with him. P refused.
After the incident at Jackson’s house in the late afternoon of 22 August, P saw Jackson again later that evening when Jackson came round to Leticia Johnson’s house. P had gone back to the Johnson house and had been drinking. Jackson arrived at about 9.30 or 10 o’clock. P was asked about his sobriety (T317):
QHow would you describe your sobriety at that stage.
AOn the way to getting drunk.
QFor how many hours had you been drinking.
AAbout three, may be four hours.
QWas there anybody at the house who was not drinking alcohol.
AB and the kids.
When Jackson walked in, P was sitting at the kitchen table having a drink. Jackson came and sat in front of him. He pulled up a chair, sat directly in front of P and brought up the subject of P owing him money that he wanted paid.
P described the conversation as follows:
He grabbed me by the front of the jumper and told me that I needed to pay the money back. I stated to him that the debt was cleared because he had sold me (sic) B’s phone. Things got a bit heated and he had a go at me a bit more. He placed a fold out knife on the table and told me if I wished to stab him, to stab him. I didn’t wish to do so obviously. We argued a bit more, B was sitting behind me crying. He then threatened us. He told us if he hadn’t been paid he was going to knock us both. He also stated that he could do so and none of the other people in the house would say or do anything about it.
According to P, Chris Hodshon, Leticia Johnson, a person called Daniel, James Coates and Russell Martlew were all present in the room when this conversation took place. He thinks Chris Hodshon and Johnson were sitting at the kitchen table, Martlew was standing in the lounge room, Coates was playing games and Daniel was smoking a pipe at the other end of the kitchen table. B was right behind him (T318).
Jackson’s voice during the conversation was “rude, absurd and violent”.
Things got a bit more heated. He told B to go out to the car. I told B “stay put”. I got up to go to the toilet, B had followed me to the toilet. She told me that she was going to the car and Mr Jackson walked in at the same time as B left, then we had a bit more of a heated discussion in the bathroom (T320).
P then gave this evidence (T320):
QWhat was arranged about you paying that debt, what did Mr Jackson suggest.
AHe wanted my key card and the PIN number because he thought that I got paid that Wednesday, which I didn’t get paid that Wednesday, as I was having a bit of difficulty with Centrelink. I had given him my key card, he had no way of writing my PIN number down, I referred to it as my birth date and he told me not to be smart. So at that time he had got one of the other people, I think it was Ticia’s mum, Paula, at the time she had come over to write it in a message and send it to his phone.
QWhat did you say when Mr Jackson asked for your bank card.
AI didn’t say anything, I gave it to him.
QDid you do that willingly.
AI did it willingly on the grounds of being scared for my and B’s safety.
QWhy were you scared for your safety.
ANo offence to anybody, but he seems a bit out of touch with communication with normal people, he seems very violent.
QDid you want Mr Jackson to have access to your bank card.
ANo, I didn’t.
QWhy did you give him your PIN number.
ABecause he told me if I hadn’t given him the PIN number and I was lying to him that he would do horrible things to me and .
QDid you see anybody noting the PIN number down.
APaula, she pinned it into her phone and sent it to Mr Jackson’s phone via SMS.
P went on and said (at T321) that he knew there was no money in his account and that there would be no money in the account until a week later. According to P, Jackson told P that Jackson was going to take his whole dole cheque.
The prosecutor then moved back to the conversation in the bathroom (T321).
QCan you tell us about the next conversation.
AThat was in the bathroom, he tried to head butt me three times and I pulled back.
QWho.
AMr Jackson.
QWho went to the bathroom first.
AI did, B followed and Mr Jackson came on about thirty seconds after that.
QTell us what was said or done by Mr Jackson in the bathroom.
AHe told B to go to the car and she gave me a kiss and a hug and went out to the vehicle. Mr Jackson grabbed me by the shirt and tried to head butt me three times. I managed to pull back. He then pulled a 22, as I believe it was, a little rifle, and then threatened me again.
QYou have demonstrated there so I just need to –
AAbout a foot in length all up.
QCan I ask you to describe the firearm in some detail, you described it as a 22.
AYes, it had a teak handle, gun metal grey barrel, I don’t know if it was loaded or not. I have had a bit of experience with rifles on the farm and I gathered it was either a 22 or a 222.
QHow many barrels.
AOne, and it seemed to be sawn off shorter than a 22 or a normal 222.
QWhat colour was the handle.
AA teak handle and a gun metal grey barrel and chamber.
QFrom where did Mr Jackson produce this firearm.
AOut of the back of his shirt pants.
QWhat was Mr Jackson wearing at this time.
AI can’t be 100%. I can remember the bandana that he was wearing which was a black bandana with flames and it had a yin/yang symbol on it.
QCould you demonstrate or show us where Mr Jackson had the firearm before he took it out.
AIn the back situated in the middle of his back in between the pants and the shirt.
QWhat did he do with that firearm.
AHe placed it up under my chin and told me that he wasn’t going to hurt B as long as the money was paid out of my bank account to him.
QFor how long did he hold the firearm in that position.
AA minute may be.
QHow did you feel at that stage.
AFrightened and worried.
QMr Jackson said that he wasn’t going to hurt B, did he say anything about what he would do to you.
ANo, he stated if the money wasn’t there he was going to go the both of us.
Jackson then left. P went and sat again at the kitchen table and saw B leave in a vehicle. He thinks they left at about 10.30 or 11 o’clock. He then “sat down and cried basically”. P said that he remained about a further 45 minutes before he left the house (T324).
He said that he spoke to Kerry-Anne Weetra out the front of the house because the rest of the boys were drunk. He told her that he was going to bum a cigarette up the road and made up a name. Kerry-Anne told him it was “OK as long as I came back.”
P then said he disappeared up the alleyway and sat in the alleyway so that he could still watch the house in case Jackson and B returned. He knew where Jackson lived but thought it would jeopardise B if he went there.
He stayed near the Johnson house basically all night until about 6 in the morning. He said that he did not see B again until two days later.
His evidence on this last point was confused and probably wrong (T324ff).
QFor how long did you stay near Wooding Court.
ABasically all night, until about six in the morning.
QDid you see B again.
ANot until two days later.
QWhat did you do in the early hours of the Wednesday morning.
AHad a shower at Chris and Ticia’s, sat there, had a few drinks, had a few cones and sat on the couch awaiting B’s return.
QWhat were you doing when B did return.
ASitting on the couch looking out the window.
QWhen do you say that occurred.
AIt would have been lunch time, I think it was two days later.
QThat is the Friday.
AYes.
QWhat did you do in between the Wednesday and the Friday.
AI sat at Ticia’s wracking my brain trying to get people to help me out but no one would.
QDid you leave Wooding Court at all during those two days.
ANot that I can recollect.
QWas there anyone with B when she came back two days later.
AYes, Kayleen.
P then described how when B walked in the door an acquaintance, Ashley Coulthard, came from across the road and offered then a place to stay somewhere on the east side.
Evidence of other witnesses bearing on the critical events described by B and P
There was a significant number of people at both the Johnson house and the Jackson house throughout the night of 22 August. In each case these people were moving from the inside to the outside and vice versa and in and out of rooms. There was much drinking of alcohol and some drug taking. It is not the case that any individual would have had the opportunity or capacity to see and hear everything that occurred. Furthermore, the perception of many of the witnesses of the night’s activities and their capacity for later recollection would have been significantly affected by their state of intoxication. I accept that some witnesses, eg B and Hodshon had very little to drink that night, although, B had smoked a substantial amount of cannabis. Other witnesses, eg Johnson, Coates and Paula Weetra, freely conceded they were drunk or “well on the way”. I have treated the evidence of each of the persons at the two houses on this night with quite some caution for these reasons.
Russell Martlew
Martlew had known Jackson for a few months but only briefly. Martlew and Coates went with P to Jackson’s house on the Tuesday afternoon in order to get Coates’ games back. However, Jackson confronted P saying that P had given the games or sold the games to Jackson.
According to Martlew, Jackson was angry but not in a violent manner, just angry, like a parent would be to a child. He told P that he needed to stop lying. P had his head down. Martlew was present during this confrontation only for a couple of minutes because he went inside and spoke to somebody else and used the toilet. After this he went with others back to the Johnson house to have a few drinks. He went backwards and forwards during the evening between this house, his mother’s house and his own house. His mother lived in that area as did Martlew himself.
On one occasion when Martlew returned to the Johnson house, Jackson was there and was yelling at P at the kitchen table. Martlew did not see Jackson arrive. When he was at the Johnson house Martlew spent his time in the kitchen or outside in the front yard. At one stage in his evidence he described it as “sort of a blur”. On a couple of occasions in his evidence Martlew said he had difficulty remembering things. He remembered Jackson “going off” at P, saying to him that he owed him money. Martlew left half way through this conversation and went home.
At no stage did Martlew see Jackson with a knife. At no stage did he see Jackson with a firearm. He thought Jackson was wearing a t-shirt and jeans. He did not see Jackson with a bankcard or keycard that night. He had no recollection of seeing B leave. He wasn’t really paying attention (T256).
James Coates
Coates had known Jackson for two and a half to three years. Coates met B and P through Hodshon and Johnson. He lent Playstation games to them so that they could play them. They were to return them within a couple of days.
According to Coates, P lied to him about the games. P told Coates that he had merely lent the games to Jackson, not “hocked” them. This led to the confrontation at Jackson’s house on the Tuesday afternoon. According to Coates he asked Jackson what happened to the games. “P said he lent them to you. I’ve heard from Rusty that he hocked them to you”. Jackson said that P had hocked them to him and then “he started having a go at P for pinching the games and hocking them to him” (T376).
I accept this evidence of Coates. It explains at least one aspect of the altercation with respect to the games. P was less than forthcoming with Coates; it is likely that he told him that he had lent the games to Jackson, a significantly different thing from having “hocked” them or used them as collateral. Jackson, no doubt, was cross with P for having “hocked” to him games that P did not own but which belonged to a friend of Jackson’s. Of course, whilst all of this may explain Jackson’s anger on this occasion, it doesn’t necessarily undermine the primary allegations against Jackson.
During the altercation on the afternoon of 22 August, Jackson’s tone of voice was loud and aggressive. Coates said there was a bit of pushing; Jackson pushed P. Coates broke it up because it was starting to get a bit out of hand (376-377). Coates went back to the Johnson house and started drinking cask wine. He thinks he stayed the rest of the night at the Johnson house. He acknowledged drinking “the cask, if not more”.
Coates saw Jackson again at about 9 or 10 o’clock at the Johnson house. He remembered an incident in the kitchen – “like the dining room part”. Coates was sitting at the table but he took off after a bit. He thinks that Paula Weetra and Leticia Johnson were also in the dining room when Jackson arrived. P and B were sitting at the kitchen table when Jackson arrived. Jackson’s voice to P “was calm but then started raising to yelling”. It is apparent that Coates did not hear much of the conversation but it was about money and as to how much his games were worth.
Coates was in the kitchen when Jackson turned up. He doesn’t remember sitting down. He remembers moving around a lot. Jackson sat for a short period but was standing most of the time. Coates did not want anything to do with P at this stage of the day and did not want to be around him. He had “little time for him”. Coates did not see Jackson pull out a knife at the table. Coates did not see Jackson with a gun at any stage. Coates said that no instruction was left by Jackson about P staying at the house or not leaving the house – “not to my knowledge”.
Chris Hodshon
Hodshon lived with Leticia Johnson and their two children. P and B were staying at their house during the second (August) Port Augusta stay. He had met Jackson a couple of times but had not associated with him. On the night of 22 August he was not drinking very much. He was to take responsibility for being the “host” and for the children; it was Johnson’s “turn” to drink. He saw Jackson and P arguing but did not hear the topic. Jackson seemed “pissed off” with P and P was “shitting himself”. B was at the kitchen table as well “scared and crying”. He saw B leave the house first followed by Jackson. Jackson was wearing jeans and a T-shirt. Hodshon did not see a knife or a gun. P sat around “moping for a bit, then he took off”.
Leticia Johnson
Johnson had met Jackson only once before the night of 22 August. She had been drinking on and off throughout that day and night. She observed Jackson arrive at about 10.30 or 11pm and start yelling at P. She did not know what it was about. P was just standing there with tears in his eyes and his face red; he looked quite upset.
Johnson remembers nothing that was said. B walked out first followed by Jackson about ten minutes after. Johnson said that she then saw P walk up the hall to the toilet but did not see Jackson or B again that night. She said that she saw B the next morning with another girl before she left to stay at another place.
Johnson did not see Jackson with a knife or a gun. She did not see B follow P to the toilet. On the night in question the toilet light was working but the globe in the hall light was broken.
Johnson said that she had had “a little bit to drink”. However, this was said in an ironic manner and I inferred, consistent with her evidence generally and that of Hodshon, that she had had a lot to drink that night.
Paula Weetra
Paula Weetra is Leticia Johnson’s mother. She had been drinking “a lot” at her daughter’s house on 22 August and was drunk when she left at the end of the night. She was walking in and out of the house drinking when Jackson arrived. Jackson was talking to P and “things got a bit loud”. Jackson was firm in his tone of voice but not shouting. She heard something said about P owing Jackson money and heard Jackson say “stop crying like a bitch”. She did not see a keycard handed over but does recall suggesting to P that he tell her his PIN so that she could send it by SMS message from her phone. She did not see Jackson, B or P leave. She did not recall seeing a knife or a gun.
Kerri-Anne Slade
Slade is not related to but considers herself a “sister” of Paula Weetra. She knew Jackson “fairly well”. She was not drinking at the Johnson house that night. Jackson and P argued at the kitchen table for thirty to forty five minutes. Whilst she was in the room for some of that time, she was not listening. Much of Slade’s evidence about what was said would appear to have come from what others had told her and is not helpful. Slade described B as “crying, not petrified crying, but just tears running down her face”. She did not see Jackson or B again after they left. Slade did not recall seeing a knife or a gun. She denied that she ever told P that he could not leave or that he had to be back in ten minutes.
Jasmine Retallack
Retallack was living with her partner Deek McMahon at Jackson’s house in August 2006. She met B for the first time late on the night of 22 August when B came with Jackson to Jackson’s house. B was crying when she arrived and whilst she was sitting down inside. Retallack observed Jackson trying to touch B’s legs with his hand when they were sitting on the lounge. However, B pulled her jumper down over her legs as if to avoid this. She saw Jackson with what Jackson told her was B’s boyfriend’s keycard.
Retallack saw both Jackson and B go to Jackson’s bedroom, but did not see them again that night because she went off to her own bedroom soon after.
Retallack was not drinking that night although her partner was drinking a lot. She said that B looked uncomfortable and was upset when Jackson was whispering in her ear while they were on the couch. She was crying the whole time that Retallack observed her.
Deek McMahon
McMahon was at Jackson’s house when he returned with B on the night of 22 August. McMahon was drinking heavily that night. Other than observing B to be upset about something his evidence is of no assistance.
Breanna Pendry
Breanna Pendry was a friend of Jacksons. She had met B on a few occasions. She remembered driving with Jackson to the Johnson house on the night of 22 August and waiting with Kayleen Mills in Jackson’s car while he went inside. She heard yelling coming from inside. Whilst he was inside James Coates, Russell Martlew and a few women came outside. She saw B come outside crying and go into the garage. Two minutes later Jackson came out. Pendry saw B go back inside for about five minutes and then come back out and get into the car. B was upset. Pendry said that Jackson then drove them (that is, Mills, B and Pendry) back to the Jackson house at about 10.30 or 11pm.
Everyone at Jackson’s house, but for B, was drinking and having fun, although, Pendry did not drink much. B was upset but calming down. She saw B and Jackson go into his bedroom. After a while Pendry went there too. They had a three way conversation about the importance of a father to a girl. Jackson was sitting on the floor and B was sitting on the bed. Pendry then left and went to the loungeroom. A little later, B and Jackson returned to the loungeroom. Pendry went into Retallack’s bedroom and then left the house at about 2am. When Pendry left, B was in the loungeroom talking to Kay Mills and the man called Chris.
The next morning Jackson picked her up from where she had slept the night. He wanted her to look after his children. B and Mills were in the car. Before B went into the police station that morning, B told Pendry about P “skipping town and taking all her stuff.” B then went into the police station and Mills went into Centrelink. Mills, followed shortly after by Jackson, then went into the police station to get B.
According to Pendry, they all returned to Jackson’s where Pendry had a shower. Jackson then took the three of them to Centrelink again for Mills to lodge a form. When they returned this time to Jackson’s he went to court and left his children with the three women.
Danielle Chapman
Danielle Chapman was a police officer stationed in Port Augusta. She was approached at the front counter of the police station at Port Augusta by a young woman at about 9.30am, Wednesday 23 August. The young woman was shaken and visibly upset. At first she entered alone.
Police officer Chapman recounted the terms of the conversation she had and her observations, as recorded in her notes made some three days afterwards. She was not cross examined on her evidence.
QWas she alone or with somebody else.
AWhen she entered the station, she was alone.
QAt what time did she enter the station.
AIt was at 9.30am.
QBy referring to your notes, can you tell us what you said and what she said inside the police station.
AWhen B entered the station,
I said “Can I help you?”
She said “Yes, I’m looking for someone.”
I said “Who are you looking for?”
She said “P, he is my boyfriend.”
I said “Has he been arrested?”
She said “No, we are in a situation”.
She then stepped away from the counter and was holding her hands across her face.
I said “What sort of situation”. Have you two had a disagreement?”
She said “No.”
I said “What is happening?”
She said “I can’t believe he has left me in this situation”.
I said “What situation? What is going on?”
She said “We were staying with a friend and something happened and we moved. Now we are staying with another friend.”
I said “Why did you move? Did something happen with this friend?”
She said “No. I can’t believe he left me in this situation. We all passed out and he left about 4 o’clock this morning. He has taken all our stuff – all his stuff and all my stuff. I can’t believe he has left me here.”
I said “Where are you from?”
She said “Perth”.
QAt the conclusion of that conversation, did somebody else enter the police station.
AYes, another female.
QCan you give us an approximate description of the other female.
AThis female was stocky build, she was taller, wearing a white top. She had long scraggy blond hair.
QCould I ask you to comment on her racial appearance.
AShe was Caucasian.
QCould you tell us of any conversation between the two females.
AThis second female that walked in, walked straight up to B and she asked “Did they find him?” They then had a conversation between them.
QWere you able to hear all of that conversation.
ANo, they were talking very quietly to each other.
QDid you have any further conversation with either of them.
AYes, the second female, I heard her say “We’re going to get out of here, but I don’t get paid till tomorrow, then we are catching the bus.”
I said “We can help you. We can provide you with a woman’s shelter tonight for you to sleep where you can be safe.
QHow did the woman called B appear at this stage.
AShe was becoming more upset. She had been crying.
QDid you have more conversation with her.
AI did. She turned to me and said “I don’t know what to do”.
I said “What is going on? I can’t help you if you don’t tell me anything.”
She said “There is a guy, he has threatened to kill my boyfriend. That is why my boyfriend took off.”
I said “Do you know this guy?”
She said “Not really.”
I said “Is he travelling with you?”
She said “No”.
I said “Is he a local?”
She said “Yes”.
I said “Where is this guy now?”
She said “He’s outside in a car.”
I said “Is it his car?”
She said “Yes.”
I said “Did he drive you here?”
She said “Yes.”
I said “Do you know the vehicle details?”
She said “No.”
I said “Do you know his name?”
She said “No, but I can’t talk to you, he knows police and he knows bikies.”
I said “I can get you someone else for you to speak to, someone who is not a uniform officer.”
She said “No, I can’t stay here too long. He will think I’m telling you too much. He is coming in. You can’t tell him anything. You can’t tell him why I’m here. He only thinks I’m here looking for P”.
QWhat happened after that conversation.
AAt that time a male walked into the front of the station up to the front counter.
QCould you describe the male for us.
AHe was stocky build, wearing a blue beanie, a blue T-shirt – sorry, correction, a blue, long sleeve shirt which was made of a thicker material, and blue jeans. And I also noticed that he had what appeared to look like a lanyard hanging out of his left pocket.
QCould you explain what a lanyard is.
AA lanyard is what’s made of material that’s generally used to hang around your neck to hang keys on or any identification.
QWas there any conversation between this male and either of the girls.
AHe turned to B and he said “I have just received a phone call. He was just seen at the Shell West Side.
QWhat did you do.
AI looked to B and the other female, and I said “Is everything okay?”, and they said “Yes”.
QWhat happened then.
AB and the other female walked out of the police station in company with the male, and walked across the road and sat out the front of the Centrelink, which is directly opposite the police station.
QDid you keep watching them for a while.
AYes. I walked out into the front of the station and watched them through the blinds, just for a couple of minutes, just to see what car that they got into. They stayed sitting on the steps for a while.
QDid you see a car nearby.
ANo, I did not.
QWere you asked to remember or recall this conversation at some later stage.
AYes. I spoke to one of the detectives when I went back into the station and just explained the female to him.
QI won’t ask about your conversation with police. At what stage were you asked to write down that conversation.
AOn the Saturday, three days later.
Andrew Dwyer
Andrew Dwyer ran a tourism business. On Friday 25 August during the afternoon he was refuelling at the BP service station at the causeway of the bird lake. He was approached by a young man in an agitated state who was with a young girl.
The male said to him in a very agitated manner “there’s a life and death situation. I’ve been shot at. I’ve got to get to Adelaide”. The male said that he hadn’t contacted the police, “I can’t. They’re in on it too”. He recalled no conversation with the female. Both were in a severe state of distress – “freaked out”. A little later he rang the police on the telephone and reported the incident.
Kayleen Mills
Kayleen Mills was a friend of Jacksons. She was eight months pregnant when she gave her evidence. She met B a couple of times at Jackson’s house in the context of drug transactions. She also was in Jackson’s car on the night of 22 August outside the Johnson house and heard yelling. She saw B come outside and sit in the carport; she was “not happy”. Jackson came outside and told B to get in the car and they drove back to Jackson’s house. Mills described B as being “upset” throughout the evening. On three separate occasions Mills visited B and Jackson in Jackson’s bedroom while they were talking. Each time B appeared upset but Mills was unable to say what they were talking about. On the third visit Mills noticed B was having a shower and observed Jackson making the bed whilst B was in the shower.
During the rest of the night Mills stayed up in the loungeroom talking to B; neither of them went to bed. Mills gave an account of visiting the police station the next morning similar to that of B and Pendry. When Jackson finally left to go to court the next morning, Mills and B went off to look for P and found him at the Johnson house.
DNA evidence
The statement of Dr Julianne Henry, a forensic scientist, dated 17 May 2007 was tendered by the prosecution with the consent of the defence. Dr Henry reported on DNA testing of various forensic samples as performed by the Forensic Science SA. DNA material recovered from clothing worn by B was analysed. The accused was excluded as a possible contributor.
Police Officer Stirling
Police Officer Stirling provided the court with a street map of Port Augusta (exhibit P8). He described the Jackson house and the Johnson house as being approximately 1 kilometre apart.
On Thursday, 24 August 2006 Police Officer Stirling conducted a search of Jackson’s house looking for firearms; none was found. On Monday, 28 August 2006 he supervised a further search of Jackson’s house. A Westpac keycard in the name of “P” (exhibit P3) was located in an empty ice cream container in the accused’s kitchen area. Also located was a black notebook which contained an entry “B $30”. It is common ground that B was known by all by this nickname.
Oli Kaminski
Mr Kaminski is a Police Liaison Officer with Westpac. His statement dated 25 June 2007 was tendered by the prosecution with the consent of the defence. According to Mr Kaminski the computerised Westpac records disclose that at about 8.10am on Wednesday, 23 August 2006, an unsuccessful balance inquiry was conducted on P’s Westpac bank account linked to the keycard, exhibit P3. It was unsuccessful because an incorrect PIN was entered for the card. At approximately 8.11am that day a successful balance inquiry was conducted. These were the only transactions recorded for this account between 22 and 28 August 2006.
Peter Thompson
Peter Thompson’s statement dated 4 September 2006 was also tendered by the prosecution with the consent of the defence. He was a friend or acquaintance of the accused. Thompson purchased a mobile phone from Jackson for $200. The purchase took place about six weeks before he gave his statement to the police (4 September 2006), that is, if Thompson’s recollection in this respect is correct, in late July or perhaps very early August. It is common ground that the phone he purchased was the one used by P as “collateral” for a drug deal with the accused and is in evidence as exhibit P1.
Thompson could not operate the phone because a code was required to unlock the operating system. Jackson agreed to contact the people who owned the phone previously. According to Thompson, about a week or so after purchasing the phone, the accused met Thompson in the Woolworths car park. The accused had a male and a female with him. They told Thompson’s de facto partner, who was with him at the time, a few codes to try but none worked.
KH
KH is B’s grandmother. She lives in a country town in Western Australia. Her statement to the police dated 27 August 2006 was also tendered by the prosecution with the consent of the defence. KH was in regular telephone contact with B whilst B was travelling. Her evidence as to a telephone contact on the night of 22 August included the following (taken verbatim from her statement):
At about midnight on Tuesday the 22nd of August 2006 I was at home and I got another call from B.
It was unusual that she should call at this time, she never did that before.
She said, “Hello Nanna its B”.
I could tell straight away something was wrong because of the tone in her voice she sounded like she was about to start crying.
She said, “I’m in trouble, P got into debt over some drugs and I have to sleep with the dealer or they will cut his throat”.
She was now crying and sobbing and then said, “I’ll get Shadow to tell you”.
Shadow then got on the phone and said, “Look P has to be taught a lesson and I have got B out of that house because I don’t want her to witness it”.
I cannot recall if I said anything, but I heard B saying in the background, “He wont let me go back to the house”.
I could then hear a muffled conversation between Shadow and B but I could not make out what they were saying.
Shadow then got back on the phone and said, “I’m going to put her back on the bus to send her home in the morning and I want you Nanna to build up her self esteem again, She needs her grandmother to start making her feel good again”.
B then came back on the phone and said, “The thing is Nanna the person I have to sleep with is Shadow”.
I said, “It sounds like he is trying to help you, he wants to send you home so let him”.
B said, “He thinks he is getting this money out of P’s bank tomorrow, but we have not been game to tell him that P doesn’t get paid for another week”.
She then said, “Its only over a $30.00 bag of pot”.
I understood Pot to be Marijuana.
She said, “P has borrowed some video games and swapped them for this $30.00 bag of pot”.
I then said, “Well P is not looking after you then, because people who love you wont get you to sleep with other people over pot”.
She said, “They don’t have to cut his throat for it”.
Shadow then came back onto the phone and said, “Show here (sic) I’m not letting her go back to that house, you want to get her away from that creep and I’ll be getting the money out of Ps bank for her bus fare”.
I said, “You’re the one she is scarred off (sic), you’re the one who she has to sleep with”.
He said, “No I’m not going to hurt her, I’m just trying to look after her”.
I said, “Do you promise you wont sleep with here (sic)”.
He said, “Yes of course I do, I’ll get her home, she needs you to look after her”
I then said that I never had the money for her bus fare and he said not to worry he would sort it out.
All the time I could hear B crying in the background.
The phone was then hung up.
When I heard nothing by midday the following day I went to the … police station and reported this matter.
After I left the police station, I then got a text message from Shadow on my mobile telephone.
Message received at 5.14pm on 23rd August 2006 which read:
“Shadow here just letting u know that she would not go on bus and ran away with P this arvo am sorry did my best”.
I replied and told him that I appreciated his help.
I then received a second message at 5.20pm which read:
“Your welcome and I hope she makes it back to before its to late for her to have a futre (sic)”.
Potential difficulties with B’s and P’s evidence – the defence case
Counsel for the accused subjected the whole of B’s and P’s evidence to an extensive and searching cross examination.
The defence case, essentially as put to B in cross examination, included the following:
·the Playstation games were not used as collateral but as direct payment for cannabis;
·the games were inoperable and on the night of 22 August Jackson demanded money for the games and P voluntarily handed over his key card to pay for the games; the accused never demanded the whole of P’s dole cheque;
·as at 22 August B was fighting with P and had decided to leave him;
·she was crying when she left the Johnson house on 22 August because the relationship with P had ended;
·when B left the Johnson house she said words to the effect “I’m not happy with P, we have been arguing and fighting and I want to get away from him”;
·she was so cross with P that she wanted to stay at Jackson’s house that night, to teach P a lesson;
·she said to Jackson that she wanted to return to her grandmother as soon as she could get the money to do so;
·the violence that B said occurred between Jackson and P did not occur;
·the sexual intercourse with Jackson did not occur;
·B ended up feeling guilty about spending the night away from P;
·she realised whilst at Jackson’s house that she wanted to go back and make up with P; and
·her feelings of guilt made her realise that she needed a spectacular story to tell P to make him feel sorry for her.
B denied all of this.
The defence pointed to a number of inconsistencies and other difficulties with B’s evidence and has submitted that this should give rise to a reasonable doubt as to whether she was telling the truth and has given the court an accurate account of what occurred between her and the accused on the night of 22 August.
B and P did give inconsistent and confused accounts of the details of and timing of various events during their two visits to Port Augusta. I accept the defence submission that they appear to be at odds with each other as to when and how various of the drug deals were done with the accused.
The defence asked the court to go further and to find that both B and P actively withheld information from the police, the prosecution and the court. They both were extensively cross examined on differences between what they told the police when their statements were taken and what they told the court and on matters told to the court that had been omitted from their statements. However, there are all sorts of reasons why a witness, including a complainant, either at the time of first speaking to the police or later when giving evidence in court, does not give a complete and fully accurate account of events, particularly events that operate as background to the circumstances of the actual charged behaviour. The fact that there were inconsistencies within B’s account and as compared with P’s account did not, on its own, cause me to think that she was not doing her best accurately to tell the court about the critical events of 22 August.
Another criticism concerned B’s conduct at the police station on the Wednesday morning, 23 August. As the defence put it, it was the second opportunity, and arguably the best opportunity, that B had to make a complaint of sexual assault in an environment conducive to making a complaint.
The first opportunity she had to complain was when she spent the night talking to Kayleen Mills after the alleged rape. However, she made no mention of having had sex with the accused. She told the cross examiner that she did not say anything to Mills because Jackson told her not to tell anybody. B said that she did not tell police officer Mason about all that had happened to her the night before because she was scared. Jackson had told her that he had friends in the police department and that he knew bikies.
In this respect, I remind myself that the failure of an alleged victim of sexual assault to make a complaint or any delay in making a complaint does not necessarily mean that the allegation is false. I further remind myself that a victim of a sexual offence can have valid reasons for failing to make a complaint or delaying in making a complaint.
In the present case, no complaint of rape was made by B until she spoke to the police on the weekend, some time after Tuesday, 22 August notwithstanding that she did have various opportunities to complain prior to that. However, this on its own does not cause me any particular concern. It is readily explainable by the state of anxiety and fear that she said she was in and which was to be expected if her description of Jackson’s conduct towards her and P is accurate.
The defence raised a further concern with B’s conduct at the police station. According to police officer Mason, B said to her that she and P had moved. She then said:
I can’t believe he left me in this situation. We all passed out and he left about 4 o’clock this morning. He has taken all our stuff – all his stuff and all my stuff. I can’t believe he has left me here.
According to Pendry, B had told her something similar before going into the police station.
At first consideration, this is an odd thing to have told police officer Mason. It would appear that, to this point, B had had no contact with P or anyone else at the Johnson house since B had left that house with Jackson at about 11 o’clock the previous night. This is supported by the evidence of B, P, Mills and Johnson and there is no evidence to the contrary. In other words, whether or not it was true, it is difficult to see how B could have been aware of this, and to this level of detail, at the time she spoke to police officer Mason. Furthermore, the assertion is not consistent with the evidence of Johnson and P as to his movements after B left the Johnson house.
Later in her evidence, B said that she was told by Johnson later that morning that P had left with his and her stuff at about 4am that morning. Johnson said nothing of this in her evidence and, in any event, it cannot be the source of the information given by B to Mason earlier that morning.
I questioned B as to the content and timing of this observation made to Mason (T238-240). She freely admitted that she had made up this information that she had given to Mason without realising, at the time, that P had in fact taken off with her stuff that morning.
I have thought long and hard about all of B’s evidence and this aspect in particular. There is little doubt that her evidence on this topic was confusing and misleading. I am not able to ascertain the truth of the matter as to when P left the Johnson house that night and whether or not, in fact, he took their “stuff” with him. However, I do accept that B was extremely fearful and agitated whilst talking to Mason. I accept that a young woman in the circumstances that B found herself in, would not be thinking clearly and that there is a good explanation why B did not give Mason a full, frank and truthful account of what had been happening to her. The events at the police station, including what was said by all participants, as recorded by Mason, and what was not said, do not cause me to doubt the accuracy of B’s account of the critical events on the night of 22 August.
The defence made reference to other aspects of B’s evidence said to be inconsistent with that of other witnesses. As I have said, she was also cross examined extensively on various matters or aspects of matters referred to by her in her evidence that had not been mentioned to the police or about which she had given a different account to the police. Nevertheless, none of this causes me to doubt that she was at all times endeavouring to tell the truth to the court or to doubt the reliability of her evidence as to the critical events on the night of 22 August.
B was criticised for overstating the level of violence perpetrated by Jackson against P on the afternoon of 22 August in Jackson’s front yard. I reject that criticism and find that her account of this altercation was broadly consistent with that of the other persons who were there.
B and P were criticised for giving an account of the events on the night of 22 August at the Johnson house not directly supported by any of the other witnesses. It is the defence case that whilst a discussion between Jackson and P occurred none of the acts of violence took place, there was no reason for B to be scared, she left with Jackson willingly, and the critical events, the subject of the charges, have been, in effect, concocted by P and B.
It is true that no other witness gave evidence of seeing a knife or a gun and each described the events of that night at the Johnson house in what might be seen as understated terms. I have already described the general circumstances of and “ambiance” of that night. No-one was paying particular attention to what was going on. Many had been drinking heavily. Furthermore, each of the “participants” at the Johnson house and at the Jackson house was either a friend or an acquaintance of Jackson. P and B were not locals. I formed the clear impression, at the time each of these participants gave their evidence, that each was less than effusive or forthcoming in their evidence insofar as it touched on the behaviour of Jackson. I do not reject any of their evidence but the fact that it provides little or only luke warm support for some of the events concerning the behaviour of Jackson, as B and P have described them, does not cause me to doubt their, particularly B’s, evidence in these respects.
B was criticised for saying in cross examination that there was a light on in the hall, to support her assertion that she could see what was happening with the gun in the bathroom, whereas Johnson said that the globe in the hall had blown that night. I reject this criticism. At p 171 of the transcript, B gave these answers in cross examination:
QWas the light on in the hallway.
AI can’t remember.
QWas the light on in the bathroom.
AYes.
Johnson confirmed that the light in the bathroom was working. It is perhaps a small issue in the overall scheme of things – whether or not B could see what was happening in the bathroom would depend on whether the bathroom light was working rather than the hall light. However, it is an illustration of the care taken and desire to be accurate shown by B in giving her evidence.
The evidence of B and P was attacked on the basis that notwithstanding the fact that people in the kitchen/lounge area of the Johnson house could see the hallway leading to the bathroom, no-one recalled seeing Jackson and B follow P to the bathroom. The defence relied, in particular, on the evidence of Johnson and Pendry in this respect. It is true there is no direct support in any of the other evidence for B’s and P’s account of the bathroom incident. As I have already indicated, the prosecution case on the charge of aggravated threatening life will stand or fall according to whether or not I am persuaded beyond reasonable doubt that B’s and P’s account here is truthful and accurate. Having said that, there is some potential corroboration of an aspect of this incident. Johnson said she saw P go to the toilet after Jackson and B had walked out but did not see B follow P to the toilet. However, Pendry did see B go back inside for about five minutes shortly after Jackson had come outside. This is consistent with B’s evidence that she asked Jackson if she could go inside for a drink of water, at which time she went with P into the bathroom. It is also inconsistent with any inference that might have been drawn from Johnson’s evidence (that once Jackson and B walked out she did not see them again) to the effect that B never re-entered the house.
The evidence shows that the detailed comings and goings of people on that night were not at the forefront of anyone’s mind and that the overall circumstances were not conducive to anyone having or retaining a clear perception of matters of such detail. In particular, during a night of heavy drinking anyone’s visits to and from the bathroom would hardly have been a matter of note. Notwithstanding this lack of corroboration, the question that remains before me is whether I accept beyond reasonable doubt that B’s and P’s account here is truthful and accurate.
The prosecution case as to the events said to have occurred at the Jackson house was also strongly challenged by the defence. I have already referred to B’s failure to complain of the alleged rape to either Mills or police officer Mason.
The defence also maintained that her conduct and affect at Jackson’s house was consistent with the fact that she and P had been arguing. There is some evidence that they had been arguing. Her allegations against Jackson were said to be inconsistent with aspects of her and Jackson’s behaviour including the fact that she admitted joining in with Jackson’s criticisms of P, her conduct towards Chris in attempting to organise a time for her to pierce him, her criticisms of P to her grandmother, the conversation Jackson had with the grandmother, the fact that Jackson allowed her to speak to her grandmother in private, the fact that Jackson allowed her to visit police officer Mason alone, the fact that B made no significant attempt to leave Jackson’s house throughout the morning of the 23rd, the fact that she went into the bedroom of Jackson, some hours only after he is alleged to have raped her, with a request that he take her to look for P and the fact that when B did finally get away from Jackson’s house it was not particularly difficult to do so.
Conclusions with respect to the evidence of B and P
Notwithstanding the many criticisms levelled at B and her evidence, I found her, overall, to be an impressive witness. I accept defence counsel’s description of her as “a young lady of some intelligence [with a] demeanour and bearing whilst giving evidence [that] belie her youth … clearly a young lady with considerable life experience” (T524). However, contrary to the defence submission I saw this as supporting rather than undermining her general reliability and credibility.
I accept that some of her behaviour and reactions, particularly at the Jackson house and on the morning after, might be seen in the cold light of day as somewhat odd. However, on her account, she had been through terrifying experiences with a very threatening and intimidating man. There is no evidence to contradict B’s account of the critical events of the night of 22 August insofar as she saw and heard them. After careful consideration of all of the evidence before me, I accept beyond reasonable doubt that she has given an accurate account of the events on 22 August, that is, of the matters she saw and heard and of the actions of the accused insofar as they affected her.
By contrast, I found P to be an unimpressive witness. I accept many of the criticisms levelled at his evidence by the defence. He overstated matters; he engaged in reconstruction. On any analysis, P did not come out of the situation that he and B found themselves in with any credit. I formed the impression that he felt a need to justify his behaviour and his perceived failure to have assisted B. Furthermore, I find that his perceptions and recollections of the events in question are likely to have been affected significantly by his alcohol ingestion that night and long term drug use. I would not be prepared to rely on P’s evidence, uncorroborated, with respect to any matter of significance to the prosecution’s case.
Ultimate Findings
I turn now to consider my ultimate findings with respect to the elements of the four charged offences.
Robbery
I find that Jackson “dealt” with P’s key card at the Johnson house in that when P handed it over, Jackson took it away with him. I also find that in doing so the accused intended, at the least, to make a serious encroachment on P’s property rights with respect to the card.
The evidence in support of the prosecution’s contentions that the accused in so dealing with the card, did so “dishonestly” (element (ii) of theft) without P’s consent (element (iii) of theft) and upon the application or threat of application of force (elements (ii) and (iii) of robbery) comes from P alone, particularly at T320-321 and T368. Whilst I think it to be quite likely that events satisfying these elements did occur, because of my adverse finding as to P’s general reliability, I am unable to accept beyond reasonable doubt that P accurately described the circumstances of this incident. There is insufficient in the evidence of the other witnesses, including B, to corroborate P’s evidence in this respect. In any event, even if I were to accept P’s evidence here, I would not be persuaded beyond reasonable doubt that P, in all of the circumstances, did not consent to Jackson taking the card. Accordingly, I find the accused not guilty of the charge of robbery.
Threatening Life
Essentially upon the acceptance and in reliance on the evidence of B, but as corroborated, in part, by P, I make the following findings beyond reasonable doubt:
(i)The accused threatened to kill or endanger the life of P by pointing a gun to the throat area of P in the Johnson bathroom and at some stage saying to P words to the effect “he was lucky he wasn’t dead yet, and he could kill [P and B] in the house and no-one would say anything”.
B said that these words were said in the bathroom. However, I am conscious of the fact that P gave evidence of different words having been said at the time the gun was pointed. Nevertheless, P gave evidence that the accused said words similar to those described by B (above) at the time the accused and P were sitting around the kitchen table. Given the circumstances of that night, it is not surprising that one or the other might have an imperfect recollection as to the precise form of words used and as to when they were said. On the basis of B’s and P’s evidence, I am satisfied that the act of pointing the gun, of itself, in the context of the ongoing exchanges between the accused and P, but irrespective of the precise words spoken and when they were spoken, was sufficient to satisfy this first element.
(ii)The threat was directed towards the life of P in that it was a threat to kill him or to endanger his life.
(iii)I infer, following a review of all of the evidence, that in conducting himself in this way at the Johnson house, the accused intended to arouse a fear that the threat was likely to be carried out or, at the least, was recklessly indifferent as to whether such a fear was aroused.
(iv)In making the threat, the accused had an offensive weapon, namely a gun, in his possession. In making this finding, I have not ignored the facts that no-one else at the Johnson house saw a gun and that two police searches of the accused’s house failed to locate a gun.
Accordingly, I find the accused guilty of the charged offence of aggravated threatening life.
Rape
As to the charge of rape, I make the following findings; all, except for the matter dealt with in (iii), beyond reasonable doubt.
(i)The accused in his dealings with B prior to and during 22 August developed a sexual interest in her.
(ii)On the night of 22 August the accused took B to his house with the hope or intention of engaging in sexual intercourse with her.
(iii)I am not persuaded beyond reasonable doubt that, at all times during the evening and night of 22 August at Jackson’s house, the accused had an intention to have sexual intercourse with B irrespective of her consent or recklessly indifferent to whether or not she would consent. In other words, I find it to be a reasonable possibility, on the evidence, that the accused, at least initially, hoped to persuade or cajole B into agreeing to have sexual intercourse with him.
(iv)I find that during the last visit by B and the accused to his bedroom on the night of 22 August, the accused had penile vaginal intercourse with B. In the circumstances, there is no obligation, at law, for me to warn or direct myself about a need for corroboration of B’s evidence or that it may be unsafe to convict on her uncorroborated evidence alone (Evidence Act 1929, s34I(5), (6) and s12A). Nevertheless, I am conscious of the need to scrutinise B’s evidence on this issue, and as a whole, with special care. I have done so and I unreservedly accept her account of this incident. I do note also that there is corroboration in the evidence of Mills that the accused was making his bed and that B was having a shower at the time Mills made her third visit to the bedroom. In making this finding that sexual intercourse occurred, I have not ignored the fact of a lack of any support for the prosecution case in the DNA evidence.
(v)I find that B did not willingly and freely consent to having intercourse with the accused. Again, I unreservedly accept B on this issue.
(vi)On the basis of all of the evidence of the accused’s interactions with B that night I infer and find that, immediately prior to and at the time of the act of intercourse, the accused knew that B was not consenting but he proceeded to have sexual intercourse with her notwithstanding this.
Accordingly, I find the accused guilty of the charged offence of rape.
Kidnapping
In order to be found guilty of kidnapping there has to have been a taking or a detaining of B with the intention of committing an indictable offence against her; in this case, rape. There is no doubt that the accused took B away from the Johnson house and to his own house. It may well be that he also detained her at his house or in his presence throughout or at various times during the period of time up until she left his house on the morning of 23 August. However, the factual and legal considerations underpinning such a finding are complex and I do not need to form a concluded view on this issue. Equally, I do not need to form a concluded view as to the role, if any, of consent either in law generally or on the facts of this case, to the offence of kidnapping.
In my view, the statutory offence of kidnapping requires a finding that the accused had the requisite intention coincidentally with, that is, at the same time as, the act of taking or detaining relied upon by the prosecution. I have already found that I am not satisfied beyond reasonable doubt that the accused formed an intention to have sexual intercourse with B regardless of any lack of consent, that is, to rape her, until immediately prior to and as part and parcel of the rape itself.
It is true, that the act of rape, virtually by definition, involves or incorporates an act of detaining a person against their will. However, I do not accept that the legislature intended every act of rape, without more, automatically to give rise to the additional offence of kidnapping under s39 of the CLCA.
Leaving aside the time immediately prior to and during the act of the rape itself, I am not satisfied that, as at the time of the accused taking B to his house or as at other times during the night of 22 August and the morning of 23 August that the accused might be said to have detained B, the accused necessarily had the requisite intention. Whilst I think it to be quite likely that through most of the evening of 22 August the accused intended to have sex with B regardless of her lack of consent, I am not persuaded of this beyond reasonable doubt. As I have said, I am persuaded beyond reasonable doubt that such an intention crystallised at the time of the rape. Accordingly, I find the accused not guilty of the charged offence of kidnapping.
Conclusion
I enter the following verdicts.
(i)As to the charged offence of robbery, I find the accused not guilty.
(ii)As to the charged offence of aggravated threatening life, I find the accused guilty.
(iii)As to the charged offence of rape, I find the accused guilty.
(iv)As to the charged offence of kidnapping, I find the accused not guilty.
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