R v JJ
[2022] SADC 157
•21 December 2022
District Court of South Australia
(Criminal)
R v JJ
Criminal Trial by Judge Alone
[2022] SADC 157
Judgment of his Honour Judge Slattery
21 December 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - CHOKING, SUFFOCATION AND STRANGULATION
CRIMINAL LAW
The accused is charged on information for arraignment on 30 April 2021 with two counts of rape (counts one and two), one count of indecent assault (count three), one count of unlawfully choking, suffocating, or strangling another (count four) and one count of aggravated threatening to cause harm (count six).
Count five on the Information is a charge of aggravated assault. This was an alternative charge to the fourth count of unlawful choking.
Prior to trial, the accused plead guilty to the fifth count in satisfaction of the charge on the fourth count. This plea was not accepted by the Director of Public Prosecutions in satisfaction of the fourth count.
The accused elected for trial by Judge sitting without a Jury.
Held:
The verdict of the court, for the published reasons is as follows:
Count one: not guilty
Count two: not guilty
Count three: guilty
Count four: guilty
Count five: -
Count six: not guilty
Criminal Law Consolidation Act 1935 (SA) s 19(2), s 20A, s 56; Evidence Act 1929 (SA) s 34P(2)(a), s 34CB, referred to.
De Sa v R [2021] SASCFC 22 ; Douglass v R [2012] 290 ALR 699; Murray v R [2002] 211 CLR 193; R v Callides [1983] 34 SASR 355; R v HBZ [2020] QCA 73; R v Maiolo (2) [2013] SASCFC 36; R v Sierke [2011] SASCFC 53; Selig v Hayes [1989] 52 SASR 169, considered.
R v JJ
[2022] SADC 157Criminal
The accused JJ is charged on information for arraignment on 30 April 2021, with the following offences:
INFORMATION
Criminal Procedure Act 1921 s 123(1)(a)
For arraignment on 30 April 2021
Information of Director of Public Prosecutions
First CountStatement of Offence
Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935).
JJ between the 1st day of April 2019 and the 31st day of May 2019 at Adelaide, engaged or continued to engage in sexual intercourse with XL by inserting his penis into her vagina, without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was no so consenting.
Second Count
Statement of Offence
Rape. (Ibid).
JJ between the 1st day of October 2019 and the 31st day of October 2019 at Adelaide, engaged or continued to engage in sexual intercourse with XL by inserting his penis into her vagina without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was no so consenting.
Third Count
Statement of Offence
Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
JJ on the 20th day of April 2020 at Adelaide, indecently assaulted XL by holding one hand around her collar and using the other to pull down her pants.
It is further alleged that JJ committed the offence knowing that XL was a person with whom he was, or was formerly, in a relationship.Fourth Count
Statement of Offence
Unlawfully Choking, Suffocating or Strangling Another. (Section 20A of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
JJ on the 20th day of April 2020 at Adelaide, being or having been in a relationship with XL unlawfully chocked, suffocated or strangled XL, without her consent.
Fifth Count
Statement of Offence
Aggravated Assault. (Section 20(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
JJ on the 20th day of April 2020 at Adelaide, assaulted XL.
It is further alleged that JJ committed the offence knowing that XL was a person with whom he was, or was formerly, in a relationship.
Sixth Count
Statement of Offence
Aggravated Threatening to Cause Harm. (Section 19(2) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
JJ on the 20th day of April 2020 at Adelaide, without lawful excuse, threatened to cause harm to XL, intending to arouse a fear that the threat would be, or was likely to be, carried out, or being recklessly indifferent as to whether such a fear was aroused.
It is further alleged that JJ committed the offence knowing that XL was a person with whom he was, or was formerly, in a relationship.
It is further alleged that JJ used or threatened to use an offensive weapon, namely a knife, to commit or when committing the offence.The accused pleaded guilty to count five (aggravated assault) as an alternative to a plea count four. This plea was not accepted by the Prosecution in full satisfaction of count four. The accused pleaded not guilty to the balance of the charges. Pursuant to Section 7 of the Juries Act, the accused has elected to be tried by a Judge sitting alone without a Jury.
I turn to the elements of each of the offences. As the accused is a male, I will describe the elements using the masculine gender when appropriate.
A person is guilty of the offence of rape if he engages or continues to engage in sexual intercourse with another person who:
Does not consent to engaging in the sexual intercourse; or
Has withdrawn consent to the sexual intercourse,
and the offender knows or is recklessly indifferent to the fact that the other person does not so consent or has withdrawn consent (as the case may be).
The prosecution must prove beyond reasonable doubt that the accused engaged in sexual intercourse with the complainant. Sexual intercourse includes any activity consisting of or involving penetration of the persons vagina or labia majora… by any part of the body of another person or by any object, and includes any continuation of any such activity. Secondly, it must similarly be proved that the intercourse occurred or continued without the complainant’s consent; consent means a free and voluntary agreement to engage in sexual activity with that person at that time.
The third element to be proved is that the accused either knew that the complainant was not consenting or was recklessly indifferent as to the lack of consent. A person is recklessly indifferent to the fact that another person does not consent to intercourse if he:
Is aware of the possibility that the other person might not be consenting to the act but decides to proceed regardless of that possibility;
Is aware of the possibility that the other person might not be consenting to the act but fails to take reasonable steps to ascertain whether the other person does in fact consent to the act before deciding to proceed;
Does not give any thought as to whether or not the other person is consenting to the act before deciding to proceed.
Count three on the information is a charge of aggravated indecent assault. Under s 56 of the Criminal Law Consolidation Act, a person who indecently assaults another is guilty of an offence. The elements of this offence are that first, there must be an assault. In order for there to be an assault, the accused must have used force or violence towards another person and any touching or handling is sufficient. Second, the force must be intentionally applied or used by the accused. Third, the force used or applied must be used without lawful justification or excuse.
Assault must be accompanied by or occur in circumstances of indecency. Indecent conduct is conduct which by any reasonable contemporary standards can only to be described as indecent. The conduct must have a sexual connotation.
In count four, the accused is charged with unlawful choking, suffocating or strangling. Under s 20A of the Criminal Law Consolidation Act, a person who is, or has been, in a relationship with another person and chokes or suffocates or strangles another person without that other person’s consent is guilty of an offence. Two people will be taken to be in relationship for the purposes of this section if they are domestic partners or they are in some other form of intimate personal relationship in which their lives are interrelated and the actions of one affects the other.
The elements of the offence are as follows:
That at the time of the act the subject of the charge, the accused and the complainant were in a relationship;
The accused did the act the subject of the charge;
The accused did the act deliberately in that it was intentional and was not an accident;
That at the time of the act, the accused intended to choke, strangle or suffocate the complainant;
The act was unlawful in that it was not in self defence and not with the consent of the complaint; and
The complaint’s breathing was hindered or stopped by the act.
The accused has pleaded guilty to the alternative charge of aggravated assault which is count five on the information.
The sixth count on the information is a charge of aggravated threatening to cause harm. Under s 19(2) of the Criminal Law Consolidation Act, a person who threatens without lawful excuse to cause harm to another and intends to arouse a fear that the threat will be or is likely to be carried out or is recklessly indifferent as to whether such fear is aroused, is guilty of an offence.
In order to prove that the accused is guilty of aggravated threatening harm, the prosecution must prove the following elements beyond reasonable doubt:
That the accused made a threat;
That the accused threatened to cause harm to the complainant;
That at the time that the threat was made, the accused intended to arouse a fear that the threat was likely to be carried out or that he was recklessly indifferent as to whether such a fear was aroused;
That the threat was made without lawful excuse; and
That an offensive weapon was used in the commission of the offence; the offensive weapon alleged was the use of a knife.
The prosecution largely relies upon evidence of the complainant as the victim of the alleged offences, inferences said to arise from this evidence, the evidence of corroborative witnesses and the agreed facts. The accused gave evidence and emphatically denied that the alleged offences occurred apart from the assault, to which he has pleaded guilty. This is not to say that the accused in any way accepts any burden of proof and I remind myself that the onus is upon the prosecution to prove the elements of the charged offences beyond reasonable doubt. That is a matter that I have kept firmly in mind when making my decision.
In the course of this hearing, I asked counsel to advise me of any directions that I should give myself arising from the charged offences and the evidence before the court. Following my consideration of the issues and the submissions of counsel, I have settled upon some standard directions about which I need to direct myself in considering this matter as a Judge sitting without a jury. I will keep each of them in mind when considering my verdict. They are as follows:
An accused person is presumed innocent of any charge on an information unless and until guilt on that particular charge has been proved beyond reasonable doubt.
The prosecution bears the burden of proving each 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 and the failure by me to accept any such defence does not, in any way, detract from the onus upon the prosecution to prove its case beyond reasonable doubt.
It is not sufficient for the prosecution to show a mere suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. If I am left with a reasonable doubt as to the establishment of any element of the charge, then I must give the accused the benefit of that doubt and find him not guilty of that particular charge.
I have reminded myself of the usual directions given to juries concerning the proper approach to assessing witnesses who gave their evidence, their credibility and reliability and the proper approach to drawing inferences of fact.
In this case, the accused elected to give evidence. He was not obliged to give evidence and he could have exercised the right to remain silent in answer to the charge, leaving it to the prosecution to satisfy me of the elements of each of the charges beyond reasonable doubt. The evidence of the accused is to be assessed in the same way as I have assessed the evidence of all of the other witnesses who have given evidence in this trial.
The task before me is to determine whether or not the prosecution has proved the elements of each charge considered separately and beyond reasonable doubt. In reaching my decision about whether I am satisfied beyond reasonable doubt of the prosecution case on any particular count, I could not reach such a conclusion about the guilt of the accused unless I am also satisfied that the accused version of what happened could not reasonably possibly be true. This is not a contest between two versions. And even if in relation to the charged counts I cannot be satisfied that the accused version of events could not reasonably possibly be true, that of course does not mean that I must accept the version of the complainant or what appears to be the version of the complainant.
If I am satisfied that the accused’s version of events on a particular count could not reasonably possibly be true, it is still necessary for me to address the evidence and each of the elements of the offence with which the accused has been charged and to reach a decision regarding whether I am satisfied that each of the elements of the count have been proven to my satisfaction beyond reasonable doubt. The making of this assessment requires no comparison between alternatives other than whether or not I am persuaded beyond reasonable doubt of the guilt of the accused.
If I am not satisfied that the elements of any charged count against the accused have been proved beyond reasonable doubt, I would find the accused not guilty of the count on that basis. If, after a full and careful consideration, I am unable to decide where the truth lies or who is telling the truth, the prosecution will have fallen short of proving its case on that particular count beyond reasonable doubt and my verdict on that count would be not guilty. In so saying, I do not assume that the accused in any way accepts any burden of proof on any basis.
It is appropriate that I give some background on the facts as they are alleged by the prosecution. I will then consider the evidence led by the prosecution and the evidence led by the accused. In so doing, I again remind myself that no onus falls upon the accused. It is for the prosecution to prove the elements of the charged offence beyond reasonable doubt.
The accused and the complainant are both from China. The accused was born in China in 2000, and the complainant in 1999. The complainant moved to live in Australia in 2010 and she was educated to a primary school level and then a high school level in South Australia. She then attended Adelaide University in 2018 and has now completed a Bachelor of Arts degree.
The accused came to live in Australia in November 2017. He was due to commence a bridging course to improve his language skills during 2018 and his plan was to commence university studies in 2019. His intention was to study computer science commencing from 2019. He lived in various places around Adelaide in student accommodation before he commenced his bridging course in 2018. He undertook a course in English Foundation Studies at an institution under the umbrella of Adelaide University. It was necessary for him to successfully complete this bridging course in order for him to be accepted into a Computer Science course at that university. His plan was to return to China at the end of each year of study to visit his family and to be in China for the Chinese New Year.
The accused and the complainant first meet in about November 2018 at the place of work of the complainant which was an internet café off Gouger Street in Adelaide. Through a female friend, the accused commenced conversing with the complainant, which graduated to a link on a ‘WeChat’ platform. ‘WeChat’ is the most popular social media application used by Chinese people to communicate with each other. The relationship gradually strengthened until December 2018.
The accused and the complainant commenced a sexual relationship on 17 December 2018; they continued that relationship from 17 December 2018 until about April 2020. The counts with which the accused has been charged are alleged to have taken place in the course of that relationship. During that period, apart from a period of time from about February 2020, when the couple separated, the sexual relationship between them continued. The evidence is that it was a regular and active sexual relationship.
It is alleged that the relationship between complainant and accused became more volatile as time passed and, in that context, in April or May 2019, the accused is alleged to have raped the complainant in their bedroom at Morphett Street after he had come home late from a drinking session with a friend. During the course of the sexual intercourse, the complainant said that she told the accused she did not want to have intercourse. The intercourse occurred in two positions, from the front and from behind. Subsequently, there was no discussion between them about this alleged event. Thereafter, the relationship between the accused and the complainant continued including their sexual relationship although the complainant said that regularity thereof decreased. I am not able to accept that evidence as reliable. All of the evidence suggest, that the regularity and intensity of their sexual relationship did not change.
It is also alleged that the end of October 2019, the accused physically dragged the complainant from Victoria Square down to Compton Street, Adelaide, into an Internet café, up the stairs of that café and into a private room at the top of the stairs. There he is alleged to have raped the accused, for a second time.
It is also alleged by December 2019 the complaint and the accused had moved to another apartment near West Terrace in Adelaide. They lived together for a period of time. The relationship ended on the complainant’s version by February 2020. On 20 April 2020, there was an altercation in the complainant’s room at the premises. It is alleged that the accused assaulted the complainant, attempted to remove her clothing, choked her and threatened to cause her harm by waving two knives at her.
In the prosecution case, evidence was called from the complainant, a flat mate of the complainant, the complainant’s mother, a friend of the complainant and two witnesses who work at the West Terrace apartments. There are also agreed facts. The accused gave evidence.
In that background, I turn to consider the evidence in relation to the charged offences.
The complainant’s evidence
The complainant met the accused on 11 November 2018 at her place of work, an Internet café off Gouger Street Adelaide. After the meeting, the accused added her to his ‘WeChat’ account. They commenced a relationship that ended in about February 2020. The complainant said that the relationship developed to boyfriend and girlfriend closer to the middle of December 2018. At that time, she was living at home with her mother and stepfather and the accused was living in accommodation in the city. He was studying a prerequisite language course preparatory to studying full time in Australia. In cross-examination, the complainant agreed that the formal start to their relationship was on 17 December 2018, which was the first time they had sexual intercourse. She knew that the accused was going back to China the next day but she expected him to come back to Australia for university study.
The accused visited his family in China after 18 December 2018. While he was away, the couple kept in regular contact. The complainant agreed in cross- examination that the accused’s trip to China created a significant distance between him and herself and that was further emphasised by the possibility that he may not come back to Australia because she knew that his mother did not want him to return. He needed to pass his bridging course before he could commence the university course.
The couple kept in contact whilst he was away. The complainant initially did not intend to travel back to China but did so in January 2019; she went to China to see the accused. Her mother had gone back to China for a visit in December 2018. Shortly before she left, she saw on a ‘WeChat’ account that the accused had posted a picture of himself and his former girlfriend. When questioned about her feelings surrounding this photograph, the complainant said that she felt betrayed. As a result, the complainant blocked the accused on her ‘WeChat’ account. This was because she felt betrayed.[1]
[1]T 136.
There is some background to this feeling of betrayal. From the onset, there had been rules established, initially by the complainant, about the relationship. Those rules were that each of them would not have contact with persons of the opposite sex. Those appear to be quite inflexible rules. The very strong impression that I gained from the evidence was that the complainant insisted upon these rules and the accused agreed to them. There had been a number of arguments in the relationship before the accused went to China, whilst the accused was in China and after the complainant went to China to see him. These involved fights about where each of them were, what they were doing throughout the day and who they might have been seeing during the day.
The complainant also found the separation from the accused very difficult. She thought that the long distance between them made them argue more and she reasoned that going to China would stop the arguing and would be good for their relationship.
In cross-examination she insisted that she was not jealous of the ex-girlfriend but felt betrayed because the accused that told her he had nothing to do with his ex-girlfriend and she believed him. She thought that seeing a photo of his ex-girlfriend on her ‘WeChat’ account was breaking a rule. Whether or not or was jealous, it was her decision to block him immediately from her ‘WeChat’ account.
The complainant travelled to her hometown in China by herself. She saw her family and stayed for about four weeks. Normally she stays at her grandparents house and at her father’s house. Her mother was not in China for all of the time she was there. The accused visited the complainant in her hometown for about a week and they saw each other every day. To do so he had to take a flight of about three hours from his family’s home city. He initially stayed at a friend’s home and then at a hotel in the city.
After they met up again in China, the arguments started again. At that time, she did not formally introduce the accused to her family even though her family knew that he had visited China from Adelaide and that he had come to her city to spend time with her. He did meet her grandparents on one occasion when he dropped her off in a taxi. This introduction process is part of Chinese culture to signify the formal existence of a relationship.
The complainant then returned to Australia. She was due to complete a summer course for her university studies in early 2019. Before she left, she strongly encouraged the accused to obtain employment when he returned. The accused had not worked in Australia prior to that time. He did not have many English language skills although the complainant thought that he could get a job in a number of places in Adelaide which cater specifically to the Chinese community. The accused evidence is that when he returned to Australia, he had about $20,000.00, which was given to him by family members. However, he had lost the support of his mother who was previously providing money for him. That was because he had failed the bridging course which he had undertaken and returned to Australia contrary to her wishes.
After four weeks in China, the complainant returned to Australia. The accused returned just before Valentine’s Day on 12 or 13 February 2019. They resumed their relationship. It was initially happy but became unhappy over time. Arguments developed between them which were initially civil but became louder; at first they were private but they became less discreet over time. The topics of the arguments were generally the same, namely contact between each of them and members of the opposite sex. The evidence of the complainant was that she felt the accused was quite controlling of her. However, the clear impression that I obtained from the evidence of each of the complainant and the accused was that they were as controlling of each other. I would not accept that one was more controlling than the other.
In that background, there were arguments from time to time that became more vigorous, more public, or both. The accused did not substantially contest the evidence of the complainant in relation to a number of the disagreements. He freely admitted that on a number of occasions that he became so violently enraged that he punched a wall, raised his voice or manifested his displeasure in some other similar aggressive way.
A number of the acts about which the complainant gave evidence fall into the category of uncharged acts and discredible conduct. The parties accepted that this evidence, if it is proved to my satisfaction, falls into the category of relationship evidence. It therefore has a use under section 34 P(2)(a) of the Evidence Act 1929. Its use would be for a non-propensity discredible conduct purpose. It is appropriate that I consider the principles surrounding the receipt by the court of such evidence. I will first identify the evidence which was nominated by the prosecution as being this discredible conduct evidence. The evidence is of alleged acts of violence that are not linked to any particular charge, including violence and aggression in the relationship with the complainant; the punching of internal walls by the accused; the damaging of property by the accused; the punching of the exterior walls of the Internet café by the accused; the physical handling on the complainant by the accused during arguments; the evidence given by a witness that during an argument the accused placed the complainant into a headlock; the checking of messages and checking of movements and, to a lesser extent, the absence of full payment by the accused of his rent and other expenses.
It is necessary that I first identify the principles which have application to the reception of this evidence which I will identify by topics. I have not ruled about whether I accept this evidence as proven and will do so below. Insofar as I do accept such acts as having been proved, I would not accept evidence about those matters for any bad character or tendency purpose. I would not rely upon it for a bad character or tendency use; I would use that evidence in order to understand the background to the charged acts and the history behind the circumstances when each charged count came about and also to be able to assess those charged acts within the scope of the relationship as a whole. Secondly, if I accept such evidence, I may use it to understand the absence of general resistance from the complainant to the sexual offences and the lack of complaint or protest that might otherwise be expected at that particular time even though the prosecution contends that there was no consent. It may also be assessed in the circumstances of why the complainant may have done or not done particular things in order to properly contextualize the relationship between the complainant and the accused. The prosecution case contends that this is also relevant to the level of power and control the accused exercised over the complainant at that time.
The incidents are also relevant to a number of facts in issue namely, whether the events occurred as described by the complainant and they are therefore probative of the arguments in question that I am required to determine whether I accept the account of the complainant beyond reasonable doubt.
The approach which I will use is consistent with what fell from Peek J in R v Maiolo (2) [2013] SASCFC 36 at 40-46, where his Honour held as follows:
The rise of “relationship evidence”-the Nieterink doctrine
[40] In the years leading up to the enactment of the Evidence (Discreditable Conduct) Amendment Act 2011, the admissibility of evidence of alleged uncharged acts by the accused upon a complainant was usually addressed by reference to the precepts adumbrated by Doyle CJ in R v Nieterink (Nieterink).
[41] The process that had culminated in the decision in Nieterink was, of course, brought about by the perception that the test of admissibility for propensity evidence required by the decision in Pfennig was extraordinarily difficult to satisfy. Indeed, in Nieterink itself, Doyle CJ was of the view that the evidence in that case did not satisfy the test in Pfennig.
[42] In Nieterink, Doyle CJ held that a category of evidence that may be referred to as “relationship evidence” (for the purposes of legal discussion rather than jury instruction) may be admissible without being subject to the (then prevailing) Pfennig test, provided that the actual evidence proposed to be adduced was truly relevant to an issue in the particular case under consideration. His Honour concluded that the evidence in the case of Nieterink itself was admissible on the following bases:
·[76]Applying those principles to the present case, I conclude that the evidence of the uncharged acts was admissible, in brief, on a number of bases. First, it could explain how the first charged incident came about, because it showed what might be called a lead up to the first charged incident. It could also explain the lack of surprise on the part of R. It could explain the confidence that the appellant might have had in repeating his conduct when committing each of the alleged offences. The submission of R to him over a period of time would give him confidence that she would submit again. It might help to explain the fact that R did not complain to her mother. The evidence could also establish a sexual attraction by the appellant towards R.
[43] Doyle CJ emphasised the need for specific, targeted admissibility in a further final comment that he made a little later in his judgment:
·[80]… there can be no assumption that evidence of uncharged acts that put the charges in context is admissible. As Gaudron J and other judges have said, a basis for reliance and admissibility must be demonstrated. It may be easy to do so in a case like the case before the Court. But still, that must be done.
[44] I note that the High Court in Roach v R (Roach) (in the context of non-sexual assault) adopted an approach to relationship evidence equivalent to that taken in Nieterink. In Roach, the male appellant was convicted of assault of his female partner after evidence of previous uncharged acts of assault by him over the course of that relationship was admitted over his objection. Admissibility in fact turned on the particular terms of Queensland statute but the plurality judgment (French CJ, Hayne, Crennan and Kiefel JJ) is nevertheless of general assistance. Their Honours noted that the trial Judge admitted the evidence “…on the basis that, without it, the jury would be faced with a seemingly inexplicable or fanciful incident. The evidence of the incident charged would otherwise appear to be given in a vacuum …” and agreed that this was an appropriate basis of admissibility. Their Honours further stated:
·[42]The purpose of the evidence in Pfennig may be contrasted with that for which the evidence in question was tendered in the present case. Here the complainant gave direct evidence both of the alleged offence and of the “relationship” evidence. The latter evidence, which included evidence of other assaults, was tendered to explain the circumstance of the offence charged. It was tendered so that she could give a full account and so that her statement of the appellant’s conduct on the day of the offence would not appear “out of the blue” to the jury and inexplicable on that account, which may readily occur where there is only one charge. It allowed the prosecution, and the complainant, to meet a question which would naturally arise in the minds of the jury. [Footnotes omitted]
[45] Their Honours noted that this approach was in accordance with the decision of the High Court in Wilson v R (a decision upon which Doyle CJ had relied in Nieterink). Their Honours noted both the permissible ambit of “relationship evidence” and the necessity for very careful directions:
·[45]In the present case the evidence, if accepted, was capable of showing that the relationship between the appellant and the complainant was a violent one, punctuated as it was with acts of violence on the part of the appellant when affected by alcohol. Without this inference being drawn, the jury would most likely have misunderstood the complainant’s account of the alleged offence and what was said by the appellant and the complainant in the course of it.
…
·[47]The importance of directions in cases where evidence may show propensity should not be underestimated. It is necessary in such a case that a trial judge give a clear and comprehensible warning about the misuse of the evidence for that purpose and explain the purpose for which it is tendered. A trial judge should identify the inferences which may be open from it or the questions which may have occurred to the jury without the evidence. Those inferences and those questions should be identified by the prosecution at an early point in the trial. And it should be explained to the jury that the evidence is to allow the complainant to tell her, or his, story but that they will need to consider whether it is true.
·[48]The directions in this case were sufficient. At the conclusion of the evidence the trial judge directed the jury of the need to exercise care and that it would be dangerous to convict on the complainant’s evidence alone unless they were convinced of its accuracy. His Honour told the jury that the history of the relationship between the complainant and the appellant had been led “for a very specific purpose” and that they must be “very, very careful in relation to the limited use that [they] may make of such evidence.” He explained how evidence could be used as evidence of propensity and directed them that they were not to use the evidence in that way. His Honour informed the jury that the evidence was led so that the incident charged was not considered in isolation or in a vacuum but “to give [them] a true and proper context to properly understand what the complainant said happened on the 13th of April 2006.” More specifically, his Honour said that otherwise they would consider the relationship of “boyfriend/girlfriend” had been on and off for about two and a half years, and then “on the Sunday evening out of the blue he suddenly attacked her with quite a degree of violence”. He said that their reaction to that might be to say “[w]ell, that’s highly unlikely. That just doesn’t make sense.” (Emphasis added; footnotes omitted)
[46] I might observe that the example given immediately above of an allegation “simply not making sense” if divorced from the context of the violent relationship within which it occurred is, with respect, a cogent and useful one. As has elsewhere been observed, it is obviously not a matter of such evidence being admitted under a nebulous rubric of “relationship” or background evidence” as a matter of course; rather, admission of particular evidence must be clearly justified on the facts of the particular case and, of course, must pass the tests of admissibility under the new provisions of the Evidence Act 1929.[2]
(citations omitted)
[2] R v Maiolo (2) [2013] SASCFC 36 at 40-46.
I have already mentioned an argument outside of the Internet café building. The complainant and the accused were present. The complainant is unable to recall what the fight was about but thinks it concerned the rule agreed between them that they would not speak to members of the opposite sex. The accused agreed that this argument occurred and that in the course of the argument he became very angry and that he punched the wall of the building. It is unclear whether the wall was constituted of masonry or some other product. It is also unclear how, if the wall was masonry or was made of some sturdier material, the accused did not sustain some form of broken bones as a result of punching that wall. He did not suffer any broken bones. Neither party gave evidence about any injury being sustained. I will infer that he struck the wall in a way that did not injure his hand.
There was a second argument that allegedly to occurred one morning in the toilets at the back of the Internet café. Those toilets were detached from the café building. The complainant alleged that the argument started in the reception area near the front desk and that she was then dragged through a corridor of the building out the back door and to the toilets at the rear. She alleged that she was dragged by her wrists or by the clothes she was wearing. The disagreement had something to do with the attention she was paying to members of the opposite sex. The complainant said that she did not say anything, she was working that day and there were customers in the Internet café. In his evidence, the accused said that he had never had an argument with the complainant in the toilets at the rear of the Internet café. He denied ever dragging the complainant into the toilets at the rear of the Internet café, holding her there or ever assaulting her there. He recalled that they did have sexual intercourse in those toilets at least once before one of the complainant’s early morning shifts. He thinks that was in about early June 2019, at which time they were living at an address in Morphett Street in the city. The complainant agreed that on one occasion she did have sex with the accused in those toilets prior to her starting her shift at the Internet café.
I have considerable difficulty in accepting the evidence of the complainant about this argument said to have taken place in the toilets of the rear of the Internet café. The argument is said to have taken place at a time when there were customers inside the café. The complainant alleged that the argument started in the reception area at the front desk and then she was physically dragged by her clothes and by one or both of her wrists through the Internet café, out the back door and then to the toilet area. The accused emphatically denied that this altercation took place. I consider that the complainant was in error about this altercation because her version is so unlikely in the background of the place, the people present and the time it occurred.
The accused accepted that he did have an argument with the complainant at the exterior of the café and that on one occasion he did strike the wall. However, it is also clear that this was a very tempestuous relationship. There were regular disagreements between the complainant the accused and, on my assessment of them both in the witness box, they were obviously very immature young adults. The nature of their relationship in light of the way they behaved was childish, bordering on infantile. That assessment does not detract from the seriousness of the matters under consideration. Rather, it paints the background of the behaviour of the complainant and the accused. As an example, the complainant gave evidence and the accused agreed that there were very regular fights and disagreements between them during their relationship. These occurred weekly. During the course of some of them, the accused became physical. Despite that, the complainant said on a number of occasions in her evidence that she stayed in the relationship because she liked the accused, that she thought it was all part of his personality and that people change. She thought that she could change him. It did not appear to occur to her that when disagreements occur so regularly, generally the two people to the disagreement are having differences that perhaps are terminal to the relationship. It also did not appear to have occurred to either the accused or the complainant that a relationship marked by constant disagreements some of which are physical, is a very unhealthy relationship which is doomed.
These were the hallmarks of the relationship almost from its commencement. It was certainly a hallmark of the relationship from 17 December 2018, at the time that the complainant and the accused first had sexual intercourse and then throughout the relationship. Despite that, the sexual relationship (which the complainant said was very regular) continued throughout the period of the time they were together as a couple.
The complainant gave evidence that in about April 2019 she rented an apartment on Morphett Street in the city. Another person with whom she had become friendly, H, was a tenant of the same premise. H became the principal renter of the property and the complainant and then later then the accused came to live in the apartment and accepted their liability to pay rent. There was some difference between the amount of rent the complainant and H each paid, but I think that is immaterial. The accused moved in with the complainant shortly after the complainant moved into the premises. The two of them occupied the largest bedroom and H occupied the other bedroom. It was intended that rent be paid by all three of them but over time, the rent was paid by H and the complainant after the accused stopped paying his share of rent after about three weeks. The accused was not working at the time. The complaints evidence, was that she paid a majority of the rent and H paid a lesser amount, because the complainant and the accused were living together and should pay a greater amount than H. She initially enjoyed living with the accused but after a while the fights and arguments recommenced, usually about members of the opposite sex. The complainant also said that, apart from rent, she paid for the day-to-day things between the two of them. This led to arguments about finances and money. In her evidence, H did not agree with this version of fact.
H gave evidence and confirmed that in March 2019 the complainant and H moved into a two-bedroom apartment in Morphett Street and a short time later, the accused moved in and shared a room with the complainant. H paid less rent than was paid by the complainant. Initially, she paid all of the rent for the property and then the complainant paid rent for herself and the accused. After a time, neither of them paid. H only paid her share of the rent because she told the property agency that she was only responsible to pay part of the rent. They all moved out in August 2019.
H agreed that the complainant and the accused argued almost everyday and had a serious argument about once per week. She saw their arguments become physical. She saw the accused punch the wall of the unit with his fist and saw the complainant grabbed by the accused and taken to the bedroom. On one occasion he did this whilst holding her in headlock. On other occasions, she saw the complainant grabbed by the accused in arguments on a number of occasions.
H had quarrels about rent with the complainant. Later, the complainant became reluctant to pay rent saying that it was the accused’s problem, not hers. In general, H thought that the accused and the complainant got on well. She had an adjoining bedroom to them and the walls of that apartment were very thin. She could hear from her own bedroom the accused and the complainant having sex. She knew when they were having sex but could not remember much else about their sexual encounters. The complainant and the accused both said they had a regular sexual relationship. The first count of rape is alleged to have occurred in the unit at Morphett Street.
The complainant said that the accused arrived home one evening between about 11:00pm and midnight. She had been at the unit with H and a friend of H. The complainant said that the accused had on that evening been working at a karaoke bar on Wright Street. She could smell alcohol on him and could tell that he had been drinking.
She said that when she saw him he appeared quite sad or upset and some time after he returned home, she thought that she heard him calling his mother on the phone. In his evidence, the accused said that on that evening he had been out drinking with a friend of his, they had been drinking Sake wine and he had consumed most of about four or five 600ml – 700ml bottles. He was very drunk and could not walk home; he was assisted to get home by his friend. As was known by the complainant, his mother had blocked him from her phone and from the ‘WeChat’ connection. She had refused to assist him financially because he did not agree to her demand that he remain in China and not return to Austraila. He was not able to make any contact with his mother and this depressed him. He said that on this evening, he used the phone of the complainant to ring his mother soon after arriving home. I accept this evidence of the accused because it is clear enough that the only way he could make contact with his own mother was to use the phone of the complainant (or someone else, not him) to do so. That is also corroborated by evidence given by the complainant concerning a phone call that she made to the mother of the accused.
The complainant said the accused walked into their bedroom and about half an hour later, she came to check on him. She shut the bedroom door and found the accused lying facedown on his bed. She sat near him, and she asked him what was wrong. In her evidence, the complainant said that she had asked the accused whether his state had something to do with not being able to speak to his mother. I find that the complainant is wrong about this, and she already knew of the difficulties of the accused speaking to his mother. I find that she was aware that he had used her phone to speak to his mother on that occasion.
The complainant said that after he had spoken to his mother, the accused was very upset. She alleges that he then got up, grabbed her and pushed her onto the bed. She was on her back, he was positioned between her legs, and he removed the clothes that she was wearing. She said he was on his knees between her legs, and she kept saying no, that she did not feel like having intercourse. She said that the accused disregarded her refusals and continued trying to remove her clothes whilst kneeling between her legs. She had one hand on his chest trying to push him away. He pinned her left wrist to the bed and used his other hand to undo her bra and touch her breasts. He was kissing her roughly. He smelt of alcohol. He then removed his own pants and underwear.
The complainant alleges that he then spat on one of his hands, rubbed the saliva around her vagina and then penetrated her from above. She said she could not close her legs because her legs were held apart by the accused’s body. She also did not have the strength to fight him off because he was significantly larger and stronger than her. She was telling him ‘No’ and was crying. He disregarded what she was saying.
Eventually the complaint stopped resisting but continued to say no at a volume that he could hear. She was not shouting because she did not want her friends in the next bedroom to hear. It was dark inside the bedroom but there was some light coming through under the gap in the door frame from the lounge room.
After intercourse had continued for about three or four minutes, she said that the accused then changed position by flipping her over and penetrating her from behind. He had pulled her to the end of the bed whilst standing off the bed. She was kneeling with her back towards him, and she was supporting herself on her hands and her knees. After he ejaculated, he fell asleep on the bed.
The complainant then said that she went to the bathroom and did not go back into the bedroom for a while.
On that evening she was wearing underwear, a t-shirt, a bra, shorts which were casual cotton loose shorts with elastic that were easy to remove. Her bra clipped at the back. She was pushing him with the one hand she had free as at the time, he had his hand around her whilst he undid her bra. He did not fully remove her pants and underwear but did so from one leg.
In his evidence, the accused said that he had been out drinking all night, that he returned home in a drunk condition, entered the unit, obtained the complainant’s phone from her and then fell face down on the couch. He rang his mother. Because he was using the complainant’s phone, his mother answered. He only spoke to her for a short period of time because she was able to identify that he was drunk, and she told him to ring back in the morning when he was sober.
After speaking to his mother, he left the couch, went to the toilet and the bathroom and vomited. He fell asleep whilst hugging the toilet bowl. He recalled that the complainant then came and got him out of the bathroom and put him to bed. That is the last thing that he can remember. He denies raping the complainant on that evening.
The accused’s evidence was he later became aware of a conversation that took place between the complainant and his mother later that night and there was, to an extent, some restoration of the relationship between he and his mother. The evidence was that she left the bedroom, rang the mother of the accused and had a two hour conversation with her in which she persuaded his mother to restore her relationship with him. By that night, he had commenced working at a number of jobs, principally as a bar man at a karaoke bar. This bar catered for Chinese patrons.
The complainant said that she did not ever speak to the accused about what happened on that night. She said that she felt disrespected and lacked trust. She did not want to remain intimate anymore. However, I do not accept that evidence because she agreed in cross-examination that their sexual relationship continued largely unchanged after that event. She said in her evidence that she thought that the accused had not made his situation clear to his mother, she gave his mother more insight about their lives together and told her that the accused was struggling financially. She alleges that she had just being raped and then rang her rapist’s mother to intercede with her on his behalf.
In the midst of the ongoing relationship, there were further occasions of violence (between the complainant and the accused). On one occasion, during a disagreement, the accused took a two-metre phone charging cable and attempted to tie up the complainant. In her examination-in-chief, the complainant said that during this argument the accused took the two-metre phone cable, tied her hands together and then left the apartment. She said that he grabbed both of her hands, forced her onto the mattress of the bed, sat on top of her, wrapped the cable around her wrist multiple times but did not tie a knot.
In cross-examination, the complainant recanted from that version. She agreed the accused wrapped her to an extent in the phone cable but did not tie up her hands and she was able to easily remove the phone cable. In his evidence, the accused agreed that during an argument, he did wrap phone cable around the body of the complainant but this was to prevent her from hurting herself as she constantly threatened to do. She was continually threatening to cut herself and on occasion to commit suicide.
There was a lot of suspicion in the relationship. The complainant said that she had little interaction with other males but she thought that the accused was lying about his interaction with other females. He checked her phone a lot, but she said she did not check his. I am unable to accept this evidence. The complainant gave evidence that on occasions, she checked his phone because she was regularly suspicious that he was cheating on her. She checked his phone one morning and found that the accused had been having a conversation on ‘WeChat’ with another female. She thought from what she could see that it sounded like they were in a relationship. It appears that she did not confront him about this. This evidence of the complainant is consistent with the high level of jealousy which permeated this relationship. They were each regularly checking the other’s phone. Despite the immaturity, childishness and infantile behaviour of both of them, the relationship continued and so also did the sexual relationship.
Eventually, each of them were forced to move out of the Morphett Street premises because it became too costly. The complainant returned home to live with her mother; she and the accused were technically still in a relationship, and she thought there was a possibility that they could fix their relationship even though they did not live together anymore. She also said that the accused eventually moved into her mother’s home in around September or October 2019. The accused denied this evidence and it was not supported by the mother of the complainant. I think it is wrong. They later moved to the West Terrace unit in about November 2019.
There is some background to those circumstances of the complainant living with her mother. I am satisfied from the evidence that the complainant’s mother was very much in favour of the complainant’s relationship with the accused and encouraged it in any way that she could. It is difficult to assess the effect, if any, that such encouragement may have had upon the complainant staying in the relationship. The complainant said that she continually held the view that she could fix the relationship despite the constant arguing.
In that context, the second count of rape is alleged to have occurred. The evidence of the complainant is that when she and the accused were somewhere in the area of Chinatown in the west end of Adelaide. They were having an argument on the street. It became a very heated argument about them terminating their relationship and she made a comment about ending her life because she did not want to live anymore. She alleged that the accused said I will help you and dragged her, pulling by her arm, to her workplace at the internet café. She alleged that he then dragged her upstairs to the second floor after passing an employee with whom she was familiar who was sitting at the reception desk. She alleged that he dragged her upstairs to a private room which contained a table, two computers and two armchairs. Exhibit P4 is a hand-drawn plan of that room.
The complainant alleged that there was no lock on the door so immediately upon entering the room, the accused turned one of the chairs sideways in the path of the door to block it. He then turned the other chair around so that each of the chairs were facing the other, and to her and said, that if she was going to kill herself, he would torture her first. She alleged that he then demanded that she take her clothes off, and she refused. At the time, he was on the chair against the door, and she was on the other chair. She feared that he would torture her in a sexual way. She did not elaborate on how she feared he would do this.
She alleged that he then bent her over the chair that was away from the door. Her arms were on the armrests, and he tried to hold her up because she did not want her face pushed onto the cushion. He was standing behind her, moved her pants and her underwear down and then inserted a finger into her vagina. He spat on his hands and used it as a lubricant to rub her vagina again.
The complainant alleged that the accused then penetrated her from behind whilst holding her hips. She told him that she did not want to have sex and also told him that she would not have sex with him because it was a public area. At the time she was not in the mood for any form of intercourse. She said no during this incident more than once.
After penetrating her in that position for some minutes, he then turned her around to face him, lifted her left leg and penetrated her again. This lasted for a few minutes, and he ejaculated.
After the sexual intercourse they sat together in the room. There was a discussion about them breaking up, but they did not break up at that point because she thought it was hard to do that for multiple reasons. She was scared that he would take revenge on her family because he knew where she lived. He also owed her a lot of money for rent and so she was very invested in the relationship. She said that she still had a desire to help him.
The complainant contradicted a number of aspects of this evidence in cross-examination. In cross-examination, she initially agreed that they were walking around Victoria Square and having an argument. She said that from Victoria Square, the fight escalated to a point where he was holding her arm and pulling her. This was around 1:00 or 2:00pm on a weekday afternoon and she alleged that the accused pulled her to the café on Compton Street, which was about 250-300m from Victoria Square. She did not complain because she did not want to cause a scene. She did not want anyone to see what was happening or call the police because she was scared about what would happen to her. From previous experience, she thought that the police would not come quickly anyway; she reasoned that they would only be separated briefly, and he would not go to gaol straight away and so she would not feel safe even then. It is not clear for what reason she thought he would go to gaol or why she would think that this was a possibility. He had not raped her at that time and she would have been complaining about an assault.
She agreed when they arrived at the internet café, someone was working on the reception desk, and she knew that person. She then volunteered that she kept her head down and did not say anything; walked upstairs to the two-person gaming room without saying anything; so as not to draw attention to them. She agreed that was not dragged there as she had said. There were other customers there as well as people playing games downstairs. She said that after getting into the room on the first floor at the top of the stairs, they argued for a while, and it was only then that they had sexual intercourse. She said that the accused inserted one finger into her vagina but agreed that, on 10 May 2022, she told the Director of Public Prosecutions that he inserted two fingers into her vagina. In later statement, she clarified that he only inserted one finger into her vagina.
She also agreed that at some time she had been to a store with the accused to purchase a purple bottle of gel used by women during sexual intercourse. She did not think that it happened on that day but must have occurred before that time. She was not able to be certain about that.
The complainant said in cross-examination that she had no intention of going to the internet café that day, and they were walking aimlessly and arguing in Victoria Square. However, she agreed in cross-examination that they spent a lot of time at the internet café and really enjoyed playing internet games together. She also agreed that they had been at Rundle Mall. They had had lunch downstairs at the Myer Centre, and then they walked from Rundle Mall through the streets of Adelaide to Victoria Square. They did not walk straight down King William Street.
The complainant denied that she assisted the accused in moving any furniture in the small room or that she asked him to put music on or use gel. She agreed that she had used this gel, at least once during their relationship, but it was not something that they used all the time. She agreed that she had told the Director of Public Prosecutions that the accused might have worn a condom during this incident, but in her examination-in-chief, she said that he was not wearing a condom. She then said that she was confused by the questions of the Director of Public Prosecutions and there was no way the accused wore a condom during this incident.
In cross-examination, she denied that she played computer games after this event but agreed that they were in the room for about two or three hours, maybe less, and had been in the room for about 10-20 minutes when the sexual intercourse commenced.
In cross-examination, she said that there was shouting and yelling before they went into the room, they were having a heated argument at the time they went into the room but there was no shouting or yelling then. They talked less from Victoria Square to the internet café compared to what happened from Rundle Mall to Victoria Square. She then said that the argument did not start at Rundle Mall but the heated argument which involved yelling and swearing occurred whilst they were walking around near Victoria Square.
She agreed that after the sexual intercourse, they remained in the room talking about the direction their relationship was taking and neither of them left the room to use the toilets for the two hours they were in the room. She did not tell anyone about the accused allegedly raping her on that occasion.
The accused gave evidence on this topic. His evidence was quite detailed. He recalled that he had stayed over with the complainant in her mother’s home. On that day he got a bus with her from her home into the city and planned to have lunch at the Myer Shopping Centre in the food court downstairs. They had lunch, he had sushi and she had KFC. After lunch they went to a warehouse type store which was on the same level as the food court, downstairs in the Myer Centre. They were looking for things to put into their new apartment on West Terrace as they knew by then that they were going to move into the West Terrace apartment. They were looking around and came across a section of the premises which sold sex aid products. The accused said that the complainant pointed out a box of product and he asked what it was, and she said that women use it during sex. He had never heard of it and the complainant suggested that they purchase one. The accused then purchased a box of the product and the complainant put it into her handbag.
They then walked from Rundle Mall up towards Chinatown. They came up a side street and onto King William Street and up to the corner of Grote Street and King William Street. He knew that the complainant likes to drink bubble tea and there is a shop down towards China Town that she used; he assumed she would stop for tea. Their habit was to play games at the Internet café, so they generally walked in that direction.
The accused said that on that day, they had not been arguing at any stage of the day. They walked on down Gouger Street and as the complainant was not thirsty, they walked past the Bubble Tea Shop and onto the Internet café. They arrived there at about 2:00 pm and they spoke to the person at the reception who was known to both of them. They intended to use the computers in the room upstairs. The complainant bought a bottle of water at reception and then they walked up stairs to the second floor. From the ground floor, they could see that the small room at the top of the stairs was empty, and they wanted to use that room to play internet games. The public area upstairs was both busy and noisy.
He entered the room and logged onto one of the computers with his membership number. He cannot be sure, but he thinks that the complainant also logged on to the second computer. After they had been in that room for a while he asked the complainant whether he could look at the thing that they purchased. She then passed the box to him. He opened it, opened the jar which was purple and saw that there was a colourless gel inside the jar. He was curious about it and asked the complainant what it was used for. She said that it had women feel more sensitive and better during sexual intercourse. She asked him whether he wanted to try and he said –
“You mean in this room?”[3]
[3] T 295.
The complainant did not respond to that question and merely looked at him. He took from that response that she did not reject the suggestion and that she was open to having sex with him in the room using the product.
They did have sexual intercourse. He moved the furniture towards the door, so they were able to create more space in the room and he moved the other chair so that each of the chairs was facing the other. He was standing nearest to the door.
He removed his pants then asked the complainant how the gel should be used. By this time, she had removed her pants and underwear. She said that he should apply some of the gel to her vagina which he did by two or three applications. Sexual intercourse followed. He could detect a difference in the sexual intercourse from her reaction because she was wriggling a lot and trying not to make any noise.
At first, she was face up and lying on the sofa chair with her legs in the air. Her back was on the chair and her arms were grabbing her clothes as she was trying to cover her mouth during intercourse. He was standing in front of her. During that time, she told him to turn up the music on his phone. He removed the earphones and turned up the volume of the music.
During sexual intercourse they changed position and she kneeled on the chair and her back was towards him. She supported herself on her knees and using her arms. They then had sexual intercourse in that position.
After sexual intercourse, they both got dressed and pulled their chairs back into the normal position. They then gamed together for some time and left around at 7:00pm, went to a restaurant and had a meal. He said that she went home that night and they did not fight on that day. He did not see her after she went home but they met up again the next day. They saw each other everyday whilst she was living with her mother.
The accused said that he did not ever live with the complainant at her mother’s home. In November 2019 he stayed a couple of nights and during that time the complainant played tennis. He watched her playing tennis on occasions; she played tennis regularly. The accused denied that there was any discussion about a breakup.
The accused said that there were many occasions when the complainant said that she intended to harm herself. For example, in relation to the phone cable incident, the accused said that he did try to do something with the phone cable to tie her down, but he did say eventually that he would not tie her up. He said words to the effect: “Okay fine I won’t do it”. This was accepted by the complainant in cross examination. He said that using this cord, he was attempting to stop her harming herself. In cross examination, the complainant agreed that she made statements to the accused that she would self-harm. He initially showed some care and concern but after a while, expressed no concerns for her actions.
There was an event that occurred whilst they were still living at Morphett Street. For reasons that she cannot now recall, the complainant sat on the balcony of the ninth floor of the apartment. She started sending messages to the accused about her intention to kill herself by throwing herself off the balcony. On that day, the accused was at Mt Lofty in the Adelaide Hills having lunch with friends.
Prior to this time, the accused said that the complainant had made comments about hurting herself during arguments. The first big argument that they had caused her to grab a paper box cutter knife out of the drawer. At that time, he was leaving the room. She said, in an ironic way that he could go, and she would cut herself. He went back into the room to try and take the knife from her hands.
The argument about her jumping out of the building occurred because she was complaining about him hanging out with his friends a lot. It occurred over ‘WeChat’ and via SMS while he was out of the building.
The complainant sent the accused a message to come back to the apartment and when he did not come back immediately because he was with his friends, she messaged him a picture of her legs hanging over the balcony and a view down to the street (Morphett Street). He could see her legs hanging off the balcony in the photo.
The accused was at Mount Lofty at the time. He told one of his friends to drive him home quickly because he took her threat seriously. At the time he did not have a key card to get into the building. There were only two and the complainant had one and H had the other.
When he arrived at the building, he stood downstairs and looked up to the balcony. He could see her. He telephoned her and asked if he could come up. She told him no, that she wanted to jump. He told her that she would not let that happen and that he would catch her. She said that the balcony was large, and she could jump from a different place on the balcony, and he would not be able to catch her.
There was a conversation backwards and forwards between them for a number of minutes and eventually he apologised and said that he should have come back earlier. When he said that, she came down from the railing and allowed him into the apartment. When he got upstairs, he could see she had been crying and there was an empty box of medication on the sofa. That was the first time he became aware that she was taking medication. He felt from that time that if they had an argument, he could not leave her side because something bad would happen.
In cross-examination, the complainant agreed that one of the reasons that she wanted to kill herself was the accused wanted to break up with her. This all occurred whilst they were still living at the Morphett Street apartment which was at or around the time of the first alleged rape. They left that apartment in about August/September 2019 some four to five months later.
Before they recommenced cohabitation at the West Terrace apartment, the relationship between the accused and the complainant became complicated. The accused said that some apathy crept into the relationship after they moved out of Morphett Street. He had made a suggestion that the complainant live with him at his friend’s house; she agreed to look at the place but lasted only part of one night and said that she did not like his friend or the premises. They had a very big argument at that time. In particular she did not want him to hangout with his friend because he was a homosexual and even though her mother’s house was much further away and this other house was convenient to the city, she thought that his friend’s place was in the wrong area. He told her that he could not live at her mother’s place because it was so far from his workplace. He was working at a bar in Wright Street and did so right up until his arrest. At the end of the argument, the complainant got into an Uber and went to her mother’s home.
The move to West Terrace occurred in November 2019. The accused and the complainant commenced cohabitating in a room at those premises from that time. He intended to live there until at least May 2020 when the tenancy agreement ended. They were both arguing a lot before the time they entered the West Terrace apartment. His attitude was that they should live together to see whether they could make things work out. They were unsuccessful in that regard.
The complainant held the room key card for the West Terrace apartment. The room was on the ninth floor and to access the room, it was necessary to have a key card to get into the front door as well as to use the lifts. The room was a single studio with a one bed, a kitchen area and a bathroom.
The complainant said in her evidence the accused originally offered help with the rent, because he was working and had saved up a bit of money. He was supposed to deposit that money into her account, but this only lasted a few weeks. However, the evidence is that immediately after the alleged first rape and after the time that the complainant rang the mother of the accused, payments were being made on the accused’s behalf by his mother directly to the complainant. These amounts were to pay back rent and for ongoing rental payments. I am not satisfied that the evidence on this topic given by the complainant is accurate. It appears that at least for the time the complainant and the accused were at the Morphett Street premises, the accused’s mother subsidized him to the extent of back rent and ongoing rent. The complainant agreed that these payments were made and that for a time the relationship improved.
The complainant said that there was a breakup between them in February 2020 and although they did not see each other much after that, they messaged each other occasionally. They did not talk everyday but were using the ‘WeChat’ platform to communicate from time to time. The accused said that in December 2019, he suggested to the complainant that they separate because they were arguing everyday about almost everything. The arguments included about speaking to members of the opposite sex. The rule to that time was that the only members of the opposite sex each of them could speak to were male or female members of their direct families. This is part of the parcel of the childish and infantile manner in which they behaved. In his evidence, the accused said that he went to live at a friend’s place and gradually moved his belongings out of the West Terrace apartment. He said that he had stopped speaking to the complainant when, out of the blue, he received a telephone call from her mother sometime in January. The complainant’s mother told him that an incident had happened at the complainant’s workplace. She was very angry that he wasn’t there to assist her. She did not know that they had broken up and, she insisted that the accused give the complainant some assistance. The accused knew that the complainant’s mother was keen for the continuance of the relationship.
The accused said that he would be right there to check out what was going on and he was then told that the complainant had been robbed at work. There was a theft from the business. He was told that the complainant’s belongings were in the back office, and someone ran in and stole all of the valuables including the belongings of the complainant. He then drove to the complainant’s workplace. She was present and he asked her what had happened. She was crying and said that she had lost her accommodation card and her purse with all of its contents including her money. He then transferred some money to her to allow her to eat and renew her key card of the premises because there was a fee for that.
Subsequent to this occasion, they started speaking to each other again, about three times per week. On occasion he went to the accommodation at West Terrace and sometimes he would be let in and stay; at other times he would leave. The relationship was rekindled, and they recommenced their sexual relationship by the end of January or early February 2020. At that time, they were communicating nearly every day. He thought there was a hope of reconciliation because they did not fight or have arguments then because they did not see each other that often. He did not mention rules during that time because he did not want to push that issue.
In 2020, the Chinese New Year took place on the 25th day of January. On that day the accused was rostered to work at the Karaoke bar. He was not living with the complainant at the time but he received a message from her in January via an SMS message, inviting him to join her for dinner with her family at her mother’s home to celebrate the Chinese New Year. He responded to the complainant saying that he needed to work on that day, that it would be difficult to get that shift off because the bar would be very busy and so it would be difficult to swap shifts with anybody. The complainant became very upset about the fact he did not want to spend Chinese New Year with her. She told him that this celebration was important, and he should be spending time with her and her family. He told her that he would do whatever he could to get there and if he could get free, he would do so and this involved him travelling from Wright Street in central Adelaide to the complainant’s home address, some 12 or 13 kilometres away. Earlier, on that evening, he texted her saying he might not be able to get there because it was very busy at the bar. He received a response from the complainant saying that he had promised, and he should keep his promises.
There had been a number of conversations about this topic. For example, before that time but still in late January, the complainant had sent him a text telling him that if he didn’t go to the celebration, her mother would find out that they had broken up and she would be upset and she, the complainant, might then hurt herself on the day of Chinese New Year. She then said to the accused that she should just hurt herself before then. He responded by asking why that it was important to her and why he would have to lie to her mother to say that they are still together and why she would hurt herself over that sort of thing. He was worried that she would actually hurt herself; he believed what she was saying because of his earlier experience with her.
The party at the complainant’s mother’s home was on 24 January 2020. It started around 9:00 p.m. and usually people would stay at least until after midnight. The accused was able to arrange to get some time off from his work because he was afraid that she would carry out the threat that she would hurt herself if he didn’t arrive. This was in the background of many other threats she had made to hurt herself. On one occasion, when she had used a knife to hurt herself; on that occasion she threatened to hurt herself and then got a knife and scraped her skin.
He was able to get an hour or two off on the night. He got an Uber from the city to the complainant’s home and arrived at about 11:30 p.m. It was only a small family party and the complainant seemed happy and surprised to see him. She asked him to stay the night but he told her that he would have to go back to work because he only had two hours off. She became very upset. She took his phone and he could not use his phone to order an Uber. He had earlier texted his colleagues to call an Uber for him and the car arrived and took him back to work.
This upset the complainant. After that time, she took a day or two to reply to his messages and that went on for two or three weeks when they rarely saw each other and barely talked. They were not officially broken up after that party and he assumed that they were still on a break. His intention was to get back together with her because this was the longest relationship he had ever been in.
The accused’s birthday was on the 25th of February, and he did not spend it with the complainant. He spent the night with his colleagues and friends having dinner and drinking. The complainant made it clear to him that she was very unhappy about the fact that he was spending his birthday drinking and eating with his friends and did not spend time with her. She sent him a message on ‘WeChat’ saying that she was unhappy that he has celebrated his birthday without her and that was why they did not get back together.
That was really the end of the relationship from the accused’s point of view. The end of the relationship was then formalised in mid-March during a conversation in the West Terrace apartments. He told her that they should formally break up and she made no response.
After that time, they exchanged text messages and also messages on the ‘WeChat’ platforms.
Each of the complainant and the accused gave evidence in relation to exhibit P5, which comprises 80 pages of copies of Instagram messages sent between the complainant and the accused. They fall into two broad categories; the first is messages transmitted on 5 April 2020 and the second is messages transmitted between 18 April 2020 and 20 April 2020. It is apparent that the first category of messages are not in the correct order. Message number 1 on page 1 is on the 5th of April 2020 at 2:58 a.m. The last message on that day which is shown on page 7 of exhibit P5 is at 2:07 a.m. the following morning. It appears that the correct way to read the messages is to commence at message number 1 on page 2 through to message number 1 on page 7 and then to revert back to page 1, message number 1 through 7, sent at 2:59 a.m. on that day. The last message on page 1, number 8, appears to be the first message sent.
On the exhibit, there are two different coloured boxes containing Chinese characters. The blue boxes contain the messages sent by the accused and the green box messages were sent by the complainant. In this first section, the first message sent by the accused is message number 8 on the bottom of page 1 and the last message sent by the accused, is message number 7 on page 1. The next group of messages commences on page 7 on 18 April 2020. In his evidence, the accused said that there had been communication between the parties prior to the 5th of April and between the 5th of April and the 18th of April. Those communications would have been on a varied number of topics but in particular they were about the relationship between the two of them. The clear inference from this evidence is that it would have been helpful from the accused’s standpoint to have the benefit of these messages so as to properly understand the balance of them in the exhibit.
I am not required to give myself a significant forensic disadvantage direction under s 34 CB Evidence Act, but I am required to take into account the existence of a forensic disadvantage to the accused in considering whether a charge has been proved. I consider that the only appropriate way to proceed is to identify if I am satisfied that the accused here, for any reason, has suffered a significant forensic disadvantage. That question is at a number of levels both quantitative and qualitative and in that context, depending upon the facts of the matter, I may be required to give myself such direction even if there has only been a short period of delay: see R v Sierke [2011] SASCFC 53.
Much will depend upon the circumstances of the case. In this case, the physical sexual relationship between the complainant and the accused continued unaffected and unabated after each of the occasions of the alleged rapes. One of the hallmarks of the relationship also continued namely, the often-elevated arguments between them with threats on both sides. I am satisfied on the evidence that during fits of pique and jealousy, the complainant sometimes threatened to harm herself and on one occasion, threatened to leap to her death from the ninth floor of the apartment building. The accused was violent towards her, regularly dragging her into rooms during arguments and on one occasion was seen to place her into a head lock. He regularly punched walls in frustration. Each of them agreed to rules which bound their behaviour in a way that was unnaturally stifling for two young people of their age. The complainant’s behaviour may be explained by the fact that their infantile relationship was riven by jealousy and her desire to stay in the relationship. She was unhappy about the fact that the accused was spending increasing amounts of time with friends and colleagues. He was a man of between 18 and 20 years at the time who, it may be expected, would broaden his social circle as he became more acclimatised to Australian society and circumstances. The complainant had been in Australia for over 10 years, and she had been educated here. She was therefore in a slightly different position.
The important issue is that in this factual background of a continuing intense physically relationship marked by occasions of violence, the frequency of their sexual intercourse and of the neediness of each of them in the relationship, the absence of any assertion by the complainant that she had been raped by the accused has exposed him to some forensic disadvantage.
In relation to the second alleged rape, if the assertion was made earlier, the purchase of the gel could be proved and the complainant could have been medically examined and testing could have been done to detect whether the use of sex aid gel had occurred. The accused could also have gathered evidence from observers who he knew would have been present in the area of Victoria Square, down through Gouger Street, at the reception of the Internet café, from users of that café and anyone else who observed them upon their departure. The proof (or not) of the purchase of the sex aid gel would have been an important aspect of the corroboration of the evidence of the accused and this could easily have been pursued.
Similarly, the different considerations apply in relation to the first alleged rape. The other occupant, H, did not hear anything on that night; her evidence was that she could usually hear them having sexual intercourse because the walls of their apartment were ‘paper thin’. H was aware that the accused returned home late that night and was obviously drunk. The three women who had been socialising in the lounge room then immediately moved to H’s bedroom to continue talking. A clear inference arises that the accused did not immediately go into his bedroom; he stayed in the lounge room. From there he says that he made it to the toilet to vomit and there fell asleep there. He was helped into bed by the complainant.
No complaint about or assertion of rape was then made by the complainant to the accused who says that on that night, he fell into bed in an alcohol induced unconsciousness. The complainant knew that the accused spoke to his mother that night. He says that he did so before getting to the toilet. The complainant knew that his mother had blocked him from all communications, and I consider that the inference so strong as to reach the level of certainty that the accused used someone else’s phone on that evening to make a call to his mother. An inference of equal strength arises that it was the phone of the complainant that he used and that he was, as he says, in the lounge room when the call was made.
In the absence of any assertion of rape by the complainant, their often-tempestuous violent relationship continued unchanged. The regularity of their physical relationship was also unchanged. Sometime during the next four months, the complainant became so angry about the behaviour of the accused that she threatened to harm herself, including by leaping to her death from the ninth storey balcony. This event was fuelled by jealousy and indignation on her part that the accused was spending too much time socialising with friends and other acquaintances. If the complaint of the alleged rape had been made earlier in the entirety of the context of their relationship, an immediate medical examination of the complainant could have taken place so that the appropriate DNA testing could be performed. To an extent, this would be slightly problematic because of the regularity of their sexual relationship but in this context, that is a matter for others with expertise in the area. My concern is that nothing was said to alert the accused about a rape allegation and so, nothing happened that may have assisted the accused in his defence of such an allegation. It is not clear to me that he had the capacity to then interview H, who was present on the evening and through the night, or M, the friend of H who slept in the bedroom of H that night and who may have been able to assist about what she may have heard.
The allegations of these rapes were not known by the accused until July or August in 2020 and so, in respect to both, he was faced with the same difficulty. A delay does not have to be for a particular period of time although in many cases, there has been a delay of many years between the alleged offences and the trial. The issue of the length of the delay and its relevance is a matter to be weighed in the balance when considering whether there has been a significant forensic disadvantage.
I consider that the accused has suffered a forensic disadvantage as a result of the delay between the alleged offending and the date he was charged with these other two offences. The requirements of this section are that I must be satisfied that the accused has suffered a significant disadvantage and not merely a disadvantage. “Significant” is an adjective qualifying the noun disadvantage. Its use in general reflects the dictionary definition within the Oxford English Dictionary of:
“sufficiently great or important to be worthy of attention: noteworthy: consequential: influential and in a weaken sense, substantial, considerable, large.
I am satisfied that the accused has suffered some disadvantages as a result of the delay described above although I am unable to say that he has suffered a significant disadvantage. I am very troubled by this finding because of the assistance the court may have received from DNA and similar scientific evidence if it was available, despite the fact they were in a regular sexual relationship. However, on the other side of the ledger, the accused has now had the opportunity to cross-examine the prosecution witnesses and to put contrary propositions of fact to them, some of which they have accepted. I am constrained to find that the requirements of Section 34 CB Evidence Act 1929 had not been satisfied even though I am satisfied that a disadvantage has been suffered by the accused in the peculiar context and factual background of this matter. I readily accept where a complaint and a charge has been made within this period of time shortly after an alleged rape, there may be no significant disadvantage or any disadvantage. This is not the usual case.
In that background, I turn to my decision about the two alleged rapes.
It is convenient to first consider the second count of rape. I have earlier outlined the factual circumstances of the allegations and the evidence of the complainant and the accused. I have significant doubts about the version of events given by the complainant; these include how she was allegedly publicly mistreated by the accused around Victoria Square, down Gouger Street to the internet café in Compton Street, past the receptionist known to the both of them and through the people in the café up the stairs and into the small room at the top of the stairs. There, it is alleged that the rape took place.
In his evidence the accused agreed that these places had been traversed by them together but after a pleasant lunch in the food court in the Myer Centre basement and after purchasing the sex aid gel. He said that intercourse occurred in the room after the accused enquired in that room about the gel, the complainant asked if he might wish to use it; without much more clothes were removed, the gel applied to the vagina of the complainant by the accused and intercourse followed in two positions. I find that there was no issue of consent that arises on this version, if it be accepted. The Prosecution did not seriously put any proposition to the contrary. The first position was when the complainant had her back on the couch and was facing the accused and the second when had her hands and knees on the couch and was facing away from him. He said that the complainant’s reaction to the application of the gel and the intercourse was more intense than usual. Afterwards they remained in the room and after some hours they left and went out to dinner. Both agreed that there had been no complaint of rape or of anything else made by the complainant to the accused on that day or anytime after that day (until such time as the accused was charged with the offence) and they went on with their regular physical relationship without any change. Both of them also agreed that prior to that day, they had a regular sexual relationship. That did not change after that day.
I find that although the complainant gave some credible evidence about these matters, as credible also was the evidence given by the accused. He withstood very well a long and searching cross-examination about this count in a way that I considered particularly enhanced his credibility.
I consider that the version of events given by the accused was reasonably possibly true and that as a result, I am constrained to find the accused not guilty of the charge of rape on the second count.
I turn to the first count of rape. I have explained in detail the background to this alleged event. The relationship was marked and marred from the outset by strong disagreements between two very immature people and it continued to be riven by infantile jealousy and ignorance. There was the absence of the necessary basis of any relationship, namely trust in the other person.
Notwithstanding, their physical relationship which commenced on 17 December 2018, continued unabated. At the Morphett Street unit, their flat mate H could hear their love making through thin walls. They appeared to be more adventurous than some and for example, had sexual intercourse in the toilet block at the rear of the ground floor of the internet café. This happened at least once. Although I do not need to decide the point, a fair inference on the evidence is that this happened on more than one occasion. There are also other relevant background matters that I have taken into account. They commence from the time of the formalisation of the relationship on 17 December 2018 and in the background that the accused flew back to China as he had planned on 18 December 2018. On that day, there had been no plan for the complainant to travel back to China even though her mother was already there. Although there had been no plans for her to travel to China, she did so in late December 2018/early January 2019. She travelled to her home city which was some three hours by aircraft from the accused home city. He had returned to visit his family, especially his mother as may be expected. Because of the complainant’s arrival in China during the time he was supposed to spend with his own family, he travelled to the home city of the complainant. He stayed with a friend and then obtained a hotel room. She came to stay with him at the hotel room and they cohabited there for the week. He did this despite the fact that at the time of his departure, there were no plans for the complainant to travel to China. Before doing so, the complainant had blocked the accused on her phone when she saw on a Facebook page a photo of the accused with his former girlfriend. This resulted in a very jealous reaction on her part which led her to blocking him from her phone.
In the course of all of this, the accused received his results from the bridging course that he had undertaken in Australia preparatory to undertaking a Bachelor Degree in Computer Science. He had failed the bridging course. The accused’s mother forbade him from returning to Australia because of this result. She threatened to block him from all communications and to terminate the financial assistance she was giving him if he returned to Australia. It appears that she wanted him to undertake his education at a Chinese University.
The decision for the accused was whether he returned to Australia to continue his relationship with the complainant or to obey the demands of his mother and the risks which such a decision carried.
I am satisfied that on the evidence, the accused disobeyed his mother’s wishes almost solely because of his relationship with the complainant. He returned to Australia, his mother withdrew all financial support and then blocked all communications with him. He then became progressively financially bereft after fairly quickly spending all the money he had; he was not frugal with money and he and the complainant were living in a comparatively expensive apartment. Ultimately, they found they could not afford the apartment even though they were sharing costs with H. At the time, the complainant was undertaking her Bachelor of Arts studies and he was trying to again pass the bridging course.
The relationship between the complainant and the accused was demonstrably labile and the complainant was working and financially supporting him. He was slow to get paid work but once he did, his friendship group expanded quickly in a way as might be expected of any 19-year-old youth. However, he could not achieve any rapprochement with his mother and this led to his doubts of despondency that he medicated with alcohol.
On the night of the first alleged rape, he was out drinking with a friend who bought a number of bottles of Sake wine. The accused became very drunk and his friend carried him home. On that night, the complainant was socialising with her flat mate H and H’s friend M at the Morphett Street apartment. The evidence of H which I accept, is that when the accused arrived home, the three of them moved to H’s bedroom to continue talking. The evidence of the complainant is that the accused went straight to the bedroom, and she thought she could hear him speaking to his mother on the phone. The clear inference from her evidence is that he was audibly emotional. I do not accept this evidence of the complainant as I think it was wrong.
I accept the evidence of the accused that he could not contact his mother on his own phone and in order to do so, he was using the complainant’s phone. Another clear inference on the evidence is that this call was made from the lounge area as the three women had left that room together and went to the room of H immediately upon his arrival home. Also, the accused said that when he came into the apartment, he collapsed face down on the couch, made a telephone call to this mother whilst in an inebriated and obviously emotional state. His mother recognised that he was drunk, told him to get off the phone and ring her back the next day. On his evidence, there was a real possibility of a reconciliation with his mother from whom he had been isolated for five months. She was prepared to entertain a telephone call from him the next day. That was a significant matter for him and his evidence on that topic then may be viewed in the context of the evidence of the complainant in cross-examination that, later that night, she had a two-hour conversation with the accused’s mother and persuaded her to reconcile with her son and renew her financial support of him.
The common sense inference arising on the evidence is that she did that in the knowledge of something said to her by the accused on that evening. The accused gave evidence that by the time of the telephone call made by the complainant to his mother, he had vomited in the toilet, had fallen into an alcohol induced sleep in the toilet, was then helped to bed by the complainant and fell into an unconscious sleep on that bed. The evidence of the complainant was that she spoke to the accused in the bedroom into which, she said, he went on his entry into the unit that night. I consider that this evidence of the complainant is not factually correct, the inference arising on all of the evidence that I am prepared to accept is that he first went to the lounge room. He was obviously drunk. Then he went to the toilet.
The complainant said that on that night, he went straight to the bedroom. She later went into the bedroom, and he was emotional. After a short conversation, she alleged that the accused raped her. They had sex in two positions, and she gave detailed evidence on that topic. Her evidence is that after the alleged rape, she went to the toilet and then called the mother of the accused, spoke to her for two hours, said nothing to the accused the next day about the alleged rape and continued in their usual sexual relationship thereafter.
In light of all of this evidence, I am in a position where I am unable to determine where the truth lies. The evidence of each of the complainant and the accused was compelling and in relation to each, there were inferences of fact and other evidence that supported the versions put by both of them. I am unable to reject the evidence put by the accused for that reason. Following the decision in Douglass v R [2012] 290 ALR 699 and, in the application of the decision of the High Court in Murray v R[4], I am continually required to address the question whether the prosecution has disproved the defence version of events as a reasonable possibility.
[4] Murray v R [2002] 211 CLR 193.
In Murray, Gummow and Hayne JJ held:
“ The choice for the [trier of fact] was not to prefer one version of events over another. The question was whether the prosecution had proved the relevant elements of the offence beyond reasonable doubt. This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the accused.” [5]
[5] Ibid at [23].
The decision of Wells J in R v Callides is well known and understood.[6] There his Honour set out the three possibilities that may confront a trier of fact in a jury trial, namely whether the trier of fact believes the prosecution evidence and finds a defendant guilty; secondly whether the trier of fact believes the defendant and there is an acquittal; and third if the trier of fact is unsure where the truth lies, there must be an acquittal.[7]
[6] R v Callides [1983] 34 SASR 355.
[7] At 358-359.
Even if I reject the evidence of the accused on this count (which I do not) that would not provide positive proof of guilt because merely preferring the evidence of the complainant over that of the defendant will not inevitably lead to a conclusion that the Prosecution case on this count must be accepted as proved beyond reasonable doubt. As I earlier reminded myself, the finding of a truthful witness will not necessarily mean that the complainant’s evidence is always reliable.[8] In that context, I have earlier pointed out those aspects of the complainant’s evidence that I find unreliable in relation to this count. I have explained why I am unable to reject the evidence put forward by the accused on this count and, in the end, I am unable to determine where the truth lies. As a result, I find the accused not guilty of count one on the information.
[8] See also Selig v Hayes [1989] 52 SASR 169 at 171-172, referring, with approval to the decision of von Doussa J in Harris v Mill Supreme Court of South Australia, von Doussa J 7 April 1998.
On the information for arraignment for 30 April 2021, My decision is as follows:
Count one: not guilty
Count two: not guilty
Count three: guilty
Count four: guilty
Count six: not guilty
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