R v K, JS - [2013] SADC 177

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v K, JS
Criminal Trial by Judge Alone
[2013] SADC 177
Reasons for the Verdict of The Honourable Justice Bampton
20 December 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
Criminal trial by judge alone - accused charged with one count of rape - whether or not complainant consented to an act of sexual intercourse - if not, whether or not accused knew the complainant was not consenting or was recklessly indifferent as to the lack of consent.
Verdict: Accused guilty of one count of rape.

R v K, JS
[2013] SADC 177
Criminal: Trial by Judge Alone

BAMPTON J: M alleges that on the 18^th day of August 2011, the accused had penile vaginal intercourse with her without her consent.
The accused is charged on Information dated 9 July 2012 with one count of rape. The accused pleaded not guilty and elected to have the matter dealt with by trial by judge alone.
The Accused
The accused suffers chronic schizoaffective disorder. Prior to trial an issue arose regarding the mental competence of the accused to stand trial.
A psychiatrist, Dr Craig Raeside, assessed the accused regarding his fitness to plead and stand trial. In his report dated 3 July 2013, Dr Raeside reported that on the basis of his recent assessments of the accused, he believed the accused’s mental state had settled. He stated that he continued to suffer from chronic schizoaffective disorder but the features of acute relapse were not present. On the basis of his presentation at the time of Dr Raeside’s assessment, Dr Raeside considered he was fit to plead and to stand trial. As there was no further concern raised regarding the accused’s mental competence, the trial proceeded.
Background
M was admitted to the Glenside Campus Mental Health Hospital (“Glenside”) for treatment for depression and anxiety on 6 May 2011.
At that time, the accused was also an inpatient at Glenside. M and the accused struck up a friendship and they became close whilst in Glenside. Their friendship developed into a sexual relationship.
M was discharged from Glenside on 28 May 2011 to the Intermediate Care Centre and the accused was discharged back into the community at around the same time.
A discharge summary dated 30 May 2011[1] records that M has a diagnosis of major depression with psychotic features and has a history of recurrent depression and generalised anxiety for which she was treated with various antidepressant and antipsychotic medication. The discharge summary records:
[M] was brought to RAH ED by ambulance after being found at home by her mother following an overdose of oxazepam. [M] wanted to end her life because she had ‘had enough’ of her current situation. She reported intense feelings of anxiety and anger towards herself and her family. Somatic complaints were also prominent, including headaches and stomach cramps. She stated that for the past 2 weeks she had experienced prominent depressive symptoms, including anhedonia, hopelessness, poor energy, insomnia, poor concentration, and increased anxiety. She had also become paranoid about her ex-partner, Brenton, who she felt was listening to her conversations in hospital, and had installed a camera in her bathroom exhaust fan to keep her under surveillance. She also felt he was monitoring her activities through her computer, and bugging her phone. [M] also reports that she had seen two angels sitting on her shoulders in times of distress; she finds these comforting. [M] reported several recent stressors, including a recent change of antidepressant, and the birth of her brother’s child (in response to which [M] felt worthless due to her perceived inadequacies).
[M] was admitted to Cedars NW for management. She was commenced on mirtazapine, but due to concerns about weight gain was continued on sertraline. She was also started on risperidone, which was switched to quetiapine after one week due to a lack of response. It was also felt that quetiapine was more suitable for [M] given its efficacy in mood and anxiety disorders. She gradually improved, with less suicidal ideation and less preoccupation with paranoid delusions, but anxiety remained prominent. It is likely that medication alone will not be adequate to manage [M’s] anxiety, which will also require the input of a psychologist after discharge.
[1] Exhibit P5.
The Allegations
On 18 August 2011, M went to the accused’s home after receiving information that he was upset. The accused asked M if he could stay at her home and they subsequently returned to her home.
At about 9.00pm that night, the accused and M were at the back of her home. The accused became verbally abusive towards M and proceeded to threaten her with a crowbar and a broken broom handle. The accused told M that “he was going to fuck [her]”, took hold of her and pulled her into the bedroom in the house. The accused directed M to undress and he then pushed her onto the bed. The accused climbed on top of M and proceeded to have vaginal sexual intercourse with her.
Prior to having intercourse, M told the accused that she did not want to have sex and repeatedly told the accused “Please stop this” and “can you please stop”. The accused ejaculated and at the conclusion of intercourse M saw him wipe his genitals using a towel she kept on a heater in her bedroom. Subsequent forensic analysis of the towel by an expert detected two complete DNA profiles which matched the accused’s DNA profile.
M first disclosed the allegation of rape to staff at the Royal Adelaide Hospital on 23 August 2011. The allegation of rape was first reported to police on 24 December 2011 when M made a report to the police regarding other alleged offences against her by the accused that month.
The defence case is that the sexual intercourse that occurred on 18 August 2011 was consensual.
Directions
I have directed myself in terms of the general directions I would have given a jury, in particular:
Burden of Proof
The defendant comes to this Court with the presumption of innocence in his favour. He is regarded by law as innocent unless and until I find the charge against him proven beyond reasonable doubt. The onus or burden of proving the charge is on the prosecution. The defendant does not carry any onus of proof and to the extent that any defence may be put forward, he does not have to prove it – the prosecution must disprove it.
The prosecution must prove the charge and every element of the charge to my satisfaction beyond reasonable doubt. I must be satisfied on all of the evidence that the elements of rape have been proved beyond reasonable doubt, and the defence that that sexual intercourse was consensual could not be reasonably possibly true.[2]
[2] Douglass v R (2012) 290 ALR 699; Liberato v R (1985) 159 CLR 507.
If, after full consideration of the evidence, I am unable to decide where the truth lies, the prosecution will have fallen short of proving its case beyond reasonable doubt and my verdict will be not guilty.
Assessment of Witnesses
In approaching the evidence of the witnesses, it is for me to decide whether I believe the whole, or any part, of the evidence of M or of any witness, whether that witness is honest or not, and whether they are reliable or not. I may accept something a witness says but reject other parts. Just because I reject some part of what a witness says does not necessarily mean that I reject the whole of what the witness says.
Mental Incapacity of M
The defence argue that the fact that M suffers a mental illness and admits to experiencing hallucinations makes her evidence inherently unreliable. There was no expert evidence called as to M’s mental condition. As referred to above, the discharge summary[3] states that M has a diagnosis of major depression with psychotic features.
[3] Exhibit P5.
In Bromley v The Queen,[4] Gibbs CJ said:[5]
If it appears that a witness whose evidence is important has some mental disability which may affect his or her capacity to give reliable evidence, common sense clearly dictates that the jury should be given a warning, appropriate to the circumstances of the case, of the possible danger of basing a conviction on the testimony of that witness unless it is confirmed by other evidence.
Brennan J said:[6]
It follows that there is no universal rule of practice that a trial judge should give a warning - much less a warning according to a prescribed formula - whenever a jury might convict on the uncorroborated testimony of a witness who is suffering or who has suffered from some form of mental disorder. It may be that the circumstances will require some caution to be given - not because of a particular rule of practice affecting witnesses suffering from some form of mental disorder but because a warning is necessary to put the defence case fully and fairly.
[4] (1986) 161 CLR 315.
[5] (1986) 161 CLR 315, [7].
[6] (1986) 161 CLR 315, [8].
I direct myself that if I find M’s mental illness may affect her capacity to give reliable evidence, I must approach her evidence with considerable caution and scrutinise her evidence with special care. I bear in mind that I may act on her evidence if I am convinced of its accuracy and I warn myself of the possible danger of acting on her evidence if it is not confirmed by other evidence.
Prior Inconsistent Statements
There is evidence before me that M gave statements to the police which are inconsistent with the evidence she gave in Court.
What M has said out of Court is not evidence in the case. Her prior inconsistent statements go only to the reliability or credibility of her evidence given in Court.
There were a number of asserted inconsistencies put to M.
In this case, the proven inconsistencies between M’s evidence and her prior statements are not of such significance that they affect her reliability.
Complaint
Evidence was led in relation to the initial complaint by M to a doctor at the Royal Adelaide Hospital on 23 August 2011. In accordance with s 34M of the Evidence Act 1929 (SA), I direct myself that the evidence of complaint is admitted:
1to inform me as to how the allegation first came to light; and
2as evidence of the consistency of the conduct of M; and
3not as evidence of the truth of what M alleged to the doctor; and
4that there may be varied reasons why M has made a complaint of the offence at a particular time or to a particular person.
Consistency of conduct is relevant to my consideration of M’s credibility. If the evidence of complaint is relevant to show consistency of conduct, that evidence may buttress M’s credibility.[7]
[7] R v H, T (2010) 108 SASR 86 at [47].
Prosecution Case
M was the main witness for the prosecution. The prosecution led evidence of a complaint made by M to Dr Arash Amini. Evidence was also called from M’s father and the investigating officer, Senior Constable First Class David Furniss.
The prosecution case relies on my acceptance that M’s evidence is both honest and reliable in respect of the charge. I must be satisfied beyond reasonable doubt of the honesty and reliability of M.
I have scrutinised M’s evidence. I have kept in mind the directions I must give myself and that I must be satisfied of each element of the alleged offence beyond reasonable doubt.
M’s Evidence
M told me she was 42 years of age at the time of trial. She said she was admitted to Glenside in 2011 for depression and anxiety. She told me she still suffers from those conditions and that she is prescribed Zoloft and Diazepam. She said she met the accused at Glenside in May 2011. She said that they started as friends; they had a common interest in the Bible and talking about God. She said they both smoked cigarettes together at the hospital and then they would walk down to the Arkaba Hotel and buy alcohol. They would then sit in the park and drink together. M said that her relationship with the accused developed into a sexual relationship about two months after they met. She said she was moved to the Intermediate Care Centre at Glenside and the accused was released, but that he came back to visit her soon after he was released.
She said she started having sexual intercourse with the accused in July 2011 and the first occasion occurred in her room at the Intermediate Care Centre. She said after she was released, she and the accused would see each other four to five times a week. He was living at Semaphore Park and she was living at Hectorville. She lived alone in a unit. She would stay overnight at the accused’s house and she had sexual intercourse with him at his house. She said that if they met up, say, five times during the week, they would have sexual intercourse maybe on three occasions during that week.
She said that the accused would also come to her unit and he would stay for two days at a time and then her father would take him to the bus and he would go home. M said that after a while she tried to see less of him because she noticed some behaviours and different things that concerned her. She said he would sometimes be on drugs. She was not sure what drugs they were, but that he had mentioned methylamphetamine a couple of times, and at that stage he would act strangely. She said his behaviour would change from screaming and yelling to crying. She said that the accused started saying he was Saint John the Divine and that at that point she realised that there was a bigger problem than she could handle. She said she did not know how to help him when he was upset. She said the accused brought medication with him whenever he came to her unit. She said sometimes he would take it and other times he would not. She said he also used to bring marijuana with him, and that it would sometimes have a good effect on him and other times it would have a bad effect.
On 18 August 2011, M had dinner with her mother and her sister and afterwards received a phone call from a friend of the accused. The friend said that the accused “was really upset”, he needed to see M, and that “he was freaking out”. M said it had been a few days since she had last seen the accused. M spoke to the accused on the phone and he did sound very upset. He said that he missed her and needed to see her. M drove to the accused’s home in her car. She said when she arrived he was very down and looked like he had been crying. M noticed there was a cake and flowers sitting on a bench which were for her birthday two days later on 20 August. She said she was nervous about seeing the accused because he was unpredictable, but that she was more concerned about him and how upset he was. She said that on this occasion, she felt sorry for him. He started talking about what he was upset about and he said he did not feel safe in his unit. He said he felt that people were out to get him. He asked M whether he could stay at her place. She agreed “because he seemed so freaked out and afraid to be at his place”. She thought he would probably stay one or two days. She said to the accused that her birthday was coming up and that her family had something planned for her so he was not meant to stay more than one or two days. She drove the accused back to her home in her car and they arrived at her place at about 9.00pm.
She said they unpacked and brought his things inside. He was then sitting in the dining area and she was in the kitchen area. She said they were just talking and the accused started to get angry, though she was not sure what it was about. She was trying to say, “It’s alright”, and trying to reason with him to calm him down. He came into the kitchen where she was, approaching her in a very aggressive manner with his fists clenched. He came up to her face with clenched fists. She said he started insulting her and calling her a “slut”, a “fuck head” and saying she was very selfish. She said she was afraid and scared.
She said he then said he wanted to go outside for a cigarette and demanded that she go with him. He sat on a chair outside and she sat on the little step out from the backdoor. He continued yelling, putting her down, and insulting her. She said she was very scared and she was huddled on the step wondering how she “was going to get out of this”. She said he demanded to have her cigarettes and her drink of Coke. She said the accused picked up a crowbar outside her back door and swung it around, threatening to hit her with it. He was saying, “I’m going to hit you with this” and he continued to insult her and call her a “bitch”. He then put the crowbar down and picked up a broom. He was threatening to poke the broom towards her and hit her with it. She said that he put the broom down and started telling her how angry he was that she had abandoned him and left him at his unit, and that this was all happening because of what she had done – it was all her fault. He then said he was going to “fuck [her]” and she said, “No, [J], please don’t”. He said, “We’re going inside”, and picked her up off the step by her arms and started pushing her around her arms and upper chest through the back door. He pushed her into the dining room, she was asking him to stop and he said that she deserved it. She said she did not know how to get away from him. She said that she knew if she ran up the hall he would chase her, he pushed her and manhandled her from the dining room into her bedroom. He told her he was going to “fuck [her]” and she said, “Please stop this [J], this isn’t right”, “Please don’t hurt me” and “Can you please stop”. Once in the bedroom he started undoing his trousers. She felt very scared and did not know what to do. He told her to take her clothes off and she said, “I don’t want to do this, can you please stop”. She took off the bottom half of her clothes. She did this because she was afraid that, if she did not do it, he might be violent towards her. She said she was crying, very upset, and continued to say, “Can you stop this please, [J] I don’t want to do this”, and he kept saying that she deserved it. M said that the accused took off his trousers and underwear and then pushed her onto the bed so that she was face up. Her legs were off the bed. She said he was very rough with her, moving her to where he wanted her to be. He kept saying she deserved it and she kept saying, “Can you please stop”. He put all of his body weight on her chest. He was looking right into her eyes. He put his right hand down to separate her legs that she had closed. She kept putting her legs together and was trying to push him with her hands, but he was too strong. He put his hand down between her legs and pushed one of her legs apart and then put his penis inside her vagina. She said it seemed to go on for a long time. She recalled him bringing his hand up at one point and putting it on her mouth as she was asking him to stop. She also recalled that he slapped her across the face a couple of times.
She said she continued to try to tell him to stop and he was still covering her mouth for some time. She said he ejaculated inside her. He then got up, pushed her to one side and picked up a towel that she kept at the end of the bed on the heater and used it to clean himself. He then left the bedroom. M went to the bathroom, cried and tried to clean herself. She then realised the accused had gone out for a cigarette and he was taking his night time medication. She said she was relieved to see him take his night time medication because it knocked him out and she “knew that nothing else really bad was going to happen”.

She said that, at that point, the accused came back into her bedroom and lay on the bed. She said he usually slept in the lounge room when he stayed over. She said she was going to go and sleep in the lounge room and he yelled at her and told her to come and sleep with him, which she did. He put his arm and leg over her and she did not say anything because she could see it was pointless. She said he kept touching her body in different places, she kept hoping he would go to sleep and she lay there frozen. She said the accused went to sleep and eventually she drifted off to sleep.
The next thing she remembered is that she woke up and saw the accused in the hallway, using her mobile phone. This was at about 8.00am the following morning. She said he was not abusive anymore. When she got a chance, she got her mobile phone to see who he had been ringing. He had been ringing his aunt, his brother, and he had also rung her father. M’s father arrived about 10 minutes after she had checked her phone. She said that she was in the passageway and her dad came straight down the hallway to her. She said she was relieved to see him, but she did not want him to know what had happened because she was afraid as the accused is a lot bigger than her father. All she said to her father was, “He’s got to go”. Her father then helped the accused pack his things up and took him to the Paradise bus station.
M said she was admitted to the Royal Adelaide Hospital on 23 August 2011. She said she was admitted because she had been feeling really awful about what had happened with the accused, and took an overdose of tablets. She said at first it went through her mind that she wanted to end her life and she also wanted to feel numb. She said she wanted to feel this because of what had happened with the accused and the way he had treated her.
M did not recall speaking with a psychiatrist, Dr Amini, at the Royal Adelaide Hospital or speaking to anyone at the hospital about what had happened with the accused.
M was cross-examined about matters that she had reported to her medical practitioners. For example, as at 11 May 2007, when she was in Glenside, she had said she felt like her neighbours were watching her. She denied having visual hallucinations at this stage. She denied that she said she had seen God. She agreed that she had seen angels – one on each shoulder. She said she could not recall telling doctors that her ex-partner, Brenton, had been bugging her phone. She did not recall telling anyone that she saw God in her home. She was asked whether the God she saw in her house was beautiful and peaceful and whether he sits by her bed. She said she had “a vague recollection now that it was mentioned, something about sitting by [her] bed, yes” and she agreed that she had seen two angels. She said she could not recall hearing voices in her head in mid May 2011. She said she didn’t think she was having auditory hallucinations in May 2011.
She was cross-examined about having told a social worker on 8 June 2011 that there were voices telling her she was going to fail when she went home. She said that she did not think that she told the social worker that it was someone else’s voice she was hearing.
I asked M about the depression and anxiety she suffers. She said she suffers it now and suffered it in 2011. She said she was admitted to Glenside in mid 2011 because she had had an overdose. She said that she was on Zoloft for depression and Diazepam for anxiety. I asked whether she had ever been prescribed antipsychotic medication and she said she had when she first went into Glenside in 2011. She said this was because she was changing antidepressants, and Olanzapine, an antipsychotic, is prescribed as it helps when there is a change in medications.
M said that she had had “negative thoughts about life, and what’s the point?”, which she said she considered part of her depression. She said that she has never had, or she did not believe that she had ever had, thoughts that were someone else’s – like someone else’s voice telling her to do something. She said it is possible that something like that occurred when she first went into hospital in 2011 because she was in a bad state but she really could not recall. She said it is possible that there were occasions when she had voices in her head that she had told doctors or social workers about, but that she had never been diagnosed with schizophrenia.
M was further cross-examined in relation to a statement she made to Dr Asokan on 4 July 2011, that she had been hearing voices of two women whispering to her for two days. M said that she could not recall whether she reported such a thing to Dr Asokan at that time. She also said that in August 2011 she did not recall feeling paranoid about her ex-partner listening to her conversations. She agreed that she thought there was a camera conducting surveillance in her house. She said she could not recall having auditory hallucinations for four weeks before 24 August 2011. She said that she was having trouble remembering dates and “what auditory thing we are referring to”. She also said she could not recall having had hallucinations for four weeks about a small black dog.
She was cross-examined about her birthday and whether her family had planned something for her birthday in 2011. She said she could not remember and it was put to her that she had said earlier that day in evidence that the family had something planned for her. M did not remember saying that.
It was put to her that her evidence was that the accused had only raped her once. She agreed it would be wrong to say that he raped her twice. It was put to her whether she was angry with the accused as at 23 August 2011. She said “No”. She was asked about an incident at the Tranmere pharmacy that resulted in her not being able to get her medication there anymore. She said it would have been easier if she could get her medication at the Tranmere Pharmacy. It was put to her that she attributed not being able to get her medication there because of the accused. She agreed that she felt like she was being punished because of the accused’s actions, but she denied it made her angry.
She was questioned about the medication Seroquel and whether she would have been taking it in August 2011. She agreed that may have been the case.
She was questioned about the statement she gave to the police in December 2011 where she said that she was not sure of the date of the crowbar and broom incident. She agreed that she was not sure of the exact date. It was put to her that she told the police on that day that she described what happened at about 11.00pm that night. It was put to her that the first occasion she told the police about the crowbar and broom incident happening on 18 August 2011 was when she spoke to the police on 9 January 2012. She said she could not recall the date and, after having refreshed her memory by reading the statement she provided to the police on 9 January 2012, she agreed that the first time she told the police about the incident that occurred on 18 August 2011 was on 9 January 2012.
She said she did not have sex with the accused after 18 August 2011. It was put to her that she did, which she denied.
She was asked whether she was drinking Red Bear and passionfruit on 18 August 2011 and she said “No”. She denied being affected by alcohol on the night of the incident.
It was put to her that there was no incident with a crowbar or a broom and which she denied.
It was put to her that the accused asked for sex on 18 August 2011 and she agreed. She said that was wrong. She denied consenting to sex.
M said she saw the accused after the rape, while he was in Glenside.
She did so knowing he was in a locked facility and that he would have been on a schedule of taking his medication, so he would have been more stable and approachable. She wanted to talk to him and ask him why he did what he did. He was very apologetic and remorseful and said he did not want to lose her as a friend. She said she put in place rules to govern their friendship. She said she continued to see the accused because she felt sorry for him as he had no home and she was hoping he would follow the rules that she had laid out. The rules were that he was not to come to her home and that there was no longer a sexual relationship.
She said that she remained fearful of him after he was released from Glenside. Part of the reason she went to see him was that she had not told her family what had happened and she was afraid for her family’s safety as well, so she thought the best solution was to appease him in a way so that he would still get to see her but it would be on her terms and she could keep an eye on things so he did not hurt anyone she cared about.
She agreed that there were occasions when he breached the rules she had put in place by coming to her home uninvited and there was an incident on 23 December 2011 and 24 December 2011. She went to the police after the 24 December incident and in the course of talking to the police, she asked her family to leave and she told the police officer that she had been raped by the accused.
Evidence of M’s Father, JM
JM told me that he may have first met the accused at Glenside. JM only ever had telephone contact with the accused when the accused used M’s phone to call him on a date he could not be sure of. He said that it was fairly early in the morning, around 7 or 8.00am. He saw his daughter’s name come up on the phone and, once he answered the phone, he recognised the accused’s voice. He asked the accused why he was phoning him on his daughter’s phone. He said it was unclear what the accused said but he, JM, was alarmed straight away and asked to speak to his daughter. The accused would not put her on the phone, which caused JM to become anxious about the situation. JM said, “I will see you in a few minutes” and he drove from Klemzig to Hectorville. He said that he drove fast to get there. When he arrived the door was open and he walked in. The accused was coming up the hallway and JM said “Where’s [M]?”. He said he wanted to check where M was and if she was okay. The accused said “She’s in her bed”, JM went to see where M was while the accused stayed at the front door. He said M was on her bed, lying in the foetal position turned away from the doorway with her knees dragged up to her chest. JM asked whether she was okay and she said “He’s got to go”. JM then went and found out what the accused was doing and encouraged the accused to go with him in the car. He dropped the accused off at the Paradise interchange. JM said, when they were in the car, the accused made the statement “We had sex”. This was the first occasion that JM had asked the accused to leave his daughter’s home. He said that he had to ask the accused to leave on another occasion, a couple of months after this incident; around Christmas.
In cross-examination, JM agreed that it would be wrong to say that he had attended at M’s house and asked the accused to leave on five occasions.
I accept JM’s evidence.
Complaint Evidence (Agreed Statement of Dr Arash Amini)
The statement of Dr Arash Amini dated 17 February 2012 was read to the Court by consent. It reads as follows:
In my capacity as a senior psychiatric registrar in Royal Adelaide Hospital Emergency Department I saw [M] once as an outpatient at about 4.30pm on Tuesday, 23 August 2011 for the first and last time.
She mentioned that there is a guy who is a drug abuser and mentally ill person who has recently raped her twice. I did not ask about the details of the events of rape but she reported that she never disclosed the issue before. I did not ask the name or other details of the perpetrator.
M could not recall making this complaint.
I find that M told the senior psychiatric registrar at the RAH emergency department she had been raped twice.
I find M’s conduct in making the initial complaint shows consistency of conduct. As there was a complaint of two rapes I use this evidence of complaint cautiously. However, when viewed with all of the evidence, I find that it does buttress M’s credibility.
Investigating Officer
The investigating officer, Senior Constable First Class David Furniss, gave evidence about the photos taken of M’s unit[8] and the seizing of a towel seen in photos 11 and 12. Senior Constable First Class Furniss arrested the accused and took a DNA sample from him.
[8] Exhibit P2.
Agreed Facts
The following agreed facts were tendered as Exhibit P3:
1.On 6 May 2011 the complainant, [M], was admitted to the Glenside Campus Mental Health Service.
2.On 8 June 2011, the complainant, [M], was discharged from the Glenside Campus Mental Health Service.
3.On 23 August 2011 the complainant, [M], attended at the Royal Adelaide Hospital.
4.On 24 August 2011 the complainant, [M], was re-admitted to the Glenside Campus Mental Health Service.
5.She was discharged on 3 September 2011.
6.[The accused] was arrested and charged in relation to this matter on 15 January 2012.
7.On 10 January 2012 police attended at the complainant, [M’s], unit at [address] and seized a beach towel from the bedroom.
8.That item was booked into secure police property on the same date.
9.On 11 January 2012 that towel was examined at the Eastern Adelaide Crime Scene laboratory. Examination under ultraviolet light indicated numerous areas of fluorescence.
10.On 13 January 2012 buccal swab was taken from the complainant, [M].
11.On 16 January [2012], the beach towel and buccal swabs taken from [the accused] and the complainant, [M], were submitted to the Forensic Science Centre for analysis.
12.Three areas on one side of the towel gave a positive result to a test for acid phosphatise (found at high levels in semen). Two of those areas were sampled and submitted for DNA analysis. Sperm was detected on both of those samples.
13.In relation to the cutting labelled 701-1.A a complete DNA profile was obtained that matched the accused, [the accused’s] DNA profile.
14.In relation to the cutting labelled 707.1.B (sperm fraction) a complete DNA profile was obtained that matched the accused, [the accused’s] DNA profile.
15.In relation to the cutting labelled 707.1B (epithelial cell fraction) a mixed DNA profile was obtained. The complainant, [M], was not excluded as a minor contributor. The major component matched [the accused].
The following agreed facts regarding M’s medical records were tendered as Exhibit P4:
1.On 11 May 2011, [M] told Drs Asokan and Heale that she felt like her ex-partner Brenton was bugging her phone.
2.On 16 May 2011, [M] reported audio hallucinations to Drs Asokan and Heale stating that “I should be dead”.
3.On 4 July 2011, medical records indicate that [M] was taking the anti-psychotic drug Quetiapine (also known as Seroquel).
4.On 4 July 2011, [M] told Dr Asokan that for 2 days she had been hearing voices of women whispering to her.
5.On 23 August 2011, [M] told social worker Megan Krestchmer that she felt her ex partner Brenton was listening to her conversations.
6.On 25 August 2011, medical records indicate that [M] was taking the anti-psychotic drug Seroquel.
7.On 24 August 2011, [M] told social worker Patricia McNiffe that for the last 4 weeks she had been having auditory hallucinations of 2 women talking in whispers, but was unable to distinguish [any] words.
8.On 24 August 2011, [M] told social worker Patricia McNiffe that for the last 4 weeks she had been having visual hallucinations of a small black dog.
9.In her statement dated 26 March 2012 but provided 24 December 2011, [M] told police that after swinging the crow-bar and the broom, [the accused] went inside and went to sleep.
10.On 15 September 2011, [M] told Dr Miller that she had resumed drinking in recent months, that she drank most days and had 3-6 drinks per day, vodka and coke.
11.On 23 August 2011, [M] told Patricia McNiffe that she took 10 zolpidem with ½ bottle of vodka in response to feelings of rejection by a male friend who had arranged to go on holiday wither and then went without her. He had called her that day from Queensland in the company of another woman.
Defence Case
The accused elected not to give evidence. I direct myself that that is a right given to him by law and there can be no prejudice afforded to him for taking that course. I must not draw any inference adverse to him or the case he puts forward with the exercise of that right. There may be many reasons why he did not give evidence and I should not speculate on those reasons. I bear in mind that the onus is still on the prosecution to prove its case beyond reasonable doubt and that the accused does not have to prove anything.
Prosecution Submissions
The prosecutor submitted that the real issue for me was the reliability of the complainant. It was submitted that there is evidence that corroborates the complainant’s version of events, namely, the evidence of her father, in particular when he entered her home and found her in the foetal position on the bed. It was submitted that M was clearly distressed and upset about something having happened and particular emphasis was placed on her comment to her father that “He’s [being the accused] got to go”. There is an inconsistency between what M said and what her father said about M’s position in the house when M’s father arrived. Clearly one of them is mistaken. There is nothing really in the inconsistency and nothing turns on it.
There is another inconsistent issue and that is the inconsistency between M’s version as to how many times her father had to ask the accused to leave her home – she said it was in the order of five times, she was not sure but it would not have been less, but her father gave evidence that it was only on two occasions. I agree with the prosecution that it is not a significant issue.
It was submitted that the other matter that corroborates M’s allegation is her attempted suicide on 23 August 2011. On the topic of the complaint to Dr Amini, the complaint took place following M’s admission to hospital following the suicide attempt. The complaint evidence is that M told the doctor that she had been raped twice while her evidence in this Court is that she was raped once. It was submitted that this really should not take away from the consistency of the conduct on the part of M. She was raped some days earlier, she attempted to commit suicide, she told the doctor when she was admitted as part of the reason for being in hospital was that she had been raped.
The prosecutor submitted that when M said twice, it was in circumstances where she was full of drugs and in circumstances where she does not even remember making the complaint. It was submitted that it is an understandable difference given her state at the time of her admission and dealing with doctors. It was submitted it is significant that a complaint was made, and that is consistent with the conduct of someone who had been raped some days earlier.
On the topic of M going to see the accused following the rape, I was taken to her explanation as to why she continued to see the accused. M said she wanted to establish rules, so, in effect, she was able to control and manage the situation. It was submitted that this is consistent with someone trying to minimise the risk to themself. It was submitted that this does not detract from M’s credibility and reliability, but rather that it is understandable and consistent with the conduct of a woman who was particularly vulnerable because of her mental health issues, who does not have a great deal of social support networks and had had a close relationship with the accused.

On the topic of matters put to M during cross-examination regarding hallucinations recorded in various medical records and summarised in Exhibit P4, it was submitted that there is no suggestion of M having experienced hallucinations or hearing voices in the weeks leading up to the date of the offending on 18 August 2011. Neither party put forward any expert evidence on the topic of hallucinations and there was no diagnosis of schizophrenia.
I turn to the criticism that when M first told the police about the rape, she initially could not remember the date it occurred but then subsequently remembered it occurred on 18 August 2011. The prosecution submitted that it was important that the making of the complaint is viewed in context. There was an incident on Christmas Eve 2011 that prompted the report to police. She spoke to a police officer who was inexperienced with rape matters. It was submitted that the initial statement is not detailed on the allegation of rape or on the crowbar/broom incident. It was submitted it would be unfair to criticise M for the lack of detail in her first statement when regard is had to the actions of police officers, which they deemed appropriate in the circumstances.
Defence Submissions
It was submitted by defence counsel that I should be most concerned with the credibility and reliability of M, in particular; whether I could accept beyond reasonable doubt the truth of her allegations. It was submitted that M gave evidence and conceded to me that in May 2011 she was having visual hallucinations in two different forms. She had hallucinations of angels sitting on her shoulders.[9] She conceded she had hallucinations about God sitting on her bed.[10] In May 2011 she was admitted to Glenside with visual hallucinations and a diagnosis of major depression with psychotic features. Counsel said that from that point on in her evidence she was unable to assist the Court. It was submitted that a common theme throughout her evidence, in particular her cross‑examination, was her inability to remember aspects of her evidence which might have assisted the Court. It was submitted that this was telling and relevant as to her credibility. Counsel contended that for the most part, M could not remember whether she had in fact experienced what was put to her regarding the hallucinations and she could not remember telling doctors or social workers what it was she was feeling at the time. It was submitted that she had difficulty remembering what the suggestion was and then difficulty remembering telling anyone about it. It was submitted that she made no attempt to hide the fact that she thought the questioning about this topic was inappropriate and irrelevant.
[9] T 41, 43.
[10] T 43.
Counsel for the accused, criticised her evidence and suggested that she said “I can’t remember” to certain questions because she knew her answers other than “I can’t remember” would affect her reliability. It was submitted that, for example, she denied having hallucinations about God sitting on her bed, or was reluctant to admit it, and then there was a subsequent concession but then, from that point, she said “I can’t remember”. It was submitted that her lack of memory was not limited to conversations with doctors, but extended to aspects of her evidence-in-chief. When pressed on these topics, or even asked about them in cross-examination, she said she could not recall. For example, in examination‑in-chief she volunteered information about the plans her family had made about her birthday.[11] Later, in cross-examination, she was unable to recall it at all.[12] It was submitted that her unwillingness to assist the Court and either confirm or deny what she was telling the doctors, leaves me really in one of two situations; neither of which are favourable to accepting her version. Either she was not suffering hallucinations or she was reluctant to admit she was.
[11] T 20.
[12] T 52.
It was submitted that her credibility is damaged because she has not been frank with me about what was happening at the relevant times and it was submitted that it is fair to say that you would reasonably expect the person who had been having hallucinations to be able to remember that. I do not accept this submission. Whether someone can recall hallucinations is arguably a matter for expert evidence, as is the topic of mental illness and hallucinations generally. There was no expert psychiatric opinion called in this matter. In any event, the fact that M was able to recall some hallucinations but not others does not affect my assessment of her. She told me in answer to my questions that it was possible she might have had voices in her head that she told doctors and social workers about, and she had had negative thoughts but she didn’t classify it as being as bad as someone who was schizophrenic who “hears voices all the time”.[13]
[13] T 103/27-31.
It was submitted that, if I do adopt the approach commended to me, the more likely scenario is that she was telling the truth to the doctors about what she was experiencing from 11 May to 24 August 2011 including hallucinations of two women whispering and a black dog, and that it may be very difficult for M to separate what was real and was not. It was submitted, how could I exclude as a possibility that the experience that she reported in the allegations, namely the rape, was not grounded in reality? This is the reliability issue I was urged to consider. It was submitted that it is a situation where a person who was suffering the conditions M has could present in a convincing way. In other words, given her history of reported hallucinations to her medical advisors, the issue of whether she was consenting or not should leave me with great doubt. Defence counsel referred to the discharge summary which made reference to anti‑psychotic medication and to the evidence that in the beginning of July, and four weeks before August, the hallucinations were continuing. There were other aspects of her credibility focussed on by defence counsel. Firstly, in relation to anti-psychotic medication, in answers to questions from me, M indicated that she had only been on anti-psychotic medication for a short period at the start of May 2011. The medical records indicate she was taking those drugs both in July and August 2011. It was submitted that this may be an attempt to minimise her symptoms.
Secondly, M flatly denied telling police on 24 December 2011 that the accused went inside to sleep after the specific crowbar and broom incident. It was argued that this may be an attempt to distance herself from a version of events which did not sit well with her allegations.
Thirdly, in relation to her suicide attempt in August 2011, it was submitted that, in addition to the explanation provided by M, there was also another explanation for her admission, if only in part, being the story in relation to a holiday that she had planned with her male friend and the phone call from Queensland that she received to the effect that he was in the company of another female. She denied that and yet it is a detailed version. It was submitted that this story[14] reported to a social worker poses all sorts of difficult questions. It was contended this could be a delusion five days after the alleged rape or, perhaps, a lie. The fact of the matter, it was submitted, is that she did report this to a social worker and denied even saying it. So at the very least, it was submitted that affects her credibility.
[14] Agreed fact 11.
The fourth and final issue of concern raised by the defence is the issue of alcohol. M denied drinking alcohol.[15]
[15] T 62.
It was submitted that the accumulation of all these factors pose real questions as to whether I can be satisfied beyond reasonable doubt of her evidence. It was submitted that her demeanour and the substance of her evidence affected both her reliability and credibility to the extent that the allegations could not be made out beyond reasonable doubt.
Counsel for the accused contended the evidence of JM was that he found his daughter in a foetal position, not wanting to talk and saying “He’s got to go” is completely consistent with how she told the Court she would present on any occasion as a result of her depression.[16]
[16] T 40.
As regards to M’s comment, “He’s got to go”, it was submitted that M was aware that the defendant did have to go, he had to be somewhere. It was submitted that I could view these words as having a completely innocent and explicable explanation.
Counsel for the accused also focussed on the evidence in relation to M’s birthday. In her evidence she said that her family had planned something, she said that the accused had brought her a birthday cake and flowers when she went around to his house on 18 August 2011, yet when she first told the police about this allegation, and it is tied together because of the sequence of the crowbar and the broom, she was unsure about the date and thought it would be about three months prior to the report to police which would make it late September.
Counsel conceded the points made by the prosecutor in that regard, that M did not go to the police to discuss the rape in December 2011, but submitted that given the alleged rape is so close to her birthday, the significance of her birthday and the features of her birthday in the allegation itself, that is the sort of date that would stick in one’s mind and one would be able to recall that. It was submitted that on 9 January 2012, within the space of two weeks, she is able to settle on a date. There were other inconsistencies pointed to by counsel. For example, the number of times M said she had sex with the defendant, she said that while she could not be specific when speaking to the police, initially she said six, and the evidence bears out that it was a lot more. Counsel pointed to her evidence about her father asking the accused to leave on 5 occasions whereas her father said it was only twice. It was submitted that M’s conduct after the rape, in particular the rules that she put in place which the accused broke, and her visiting him in Glenside after 18 August 2011 on her own is not consistent with a person who has suffered the ordeal that she told me about.
The Law
Rape
Section 48 of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) states:
(1)A person (the offender) is guilty of the offence of rape if he or she engages, or continues to engage, in sexual intercourse with another person who—
(a) does not consent to engaging in the sexual intercourse; or
(b) 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 so withdrawn consent (as the case may be).
Maximum penalty: Imprisonment for life.
An accused is recklessly indifferent if he, realising that the complainant might not be consenting, proceeds to have sexual intercourse with her irrespective of whether she was consenting or not. Reckless indifference in this context means that the accused realised that M might not be consenting and went ahead nevertheless with the act of penetration indifferent to whether she was consenting or otherwise.
The prosecution must prove that M was not consenting. I bear in mind that at all times the onus remains on the prosecution to prove beyond a reasonable doubt that the accused “knew” she was not consenting or was “recklessly indifferent” as to whether she was consenting.
There is no dispute that sexual intercourse took place, the issue is whether or not M consented to it. It is the prosecution case that M made clear she was not consenting by what she said and by her actions; she was struggling. It is alleged that the lack of consent was evident at the time the accused penetrated M with his penis such that, on the prosecution case, he must have known she was not consenting or was at the very least alive to the possibility that she was not consenting and went ahead regardless.
The prosecution also drew my attention to s 46 of the CLCA which, in effect, states that consent is not taken to be given freely and voluntarily if a person agrees or consents due to the application of force or an express or implied threat and at the time of the offending there was, on the prosecution case, a degree of force being applied to the complainant.
Findings
I have scrutinised the evidence of M. I have kept in mind the directions that I must give myself. I must be satisfied of each element of the offence of rape beyond reasonable doubt. In scrutinising M’s evidence, I bear in mind her mental illness. Whilst I do not find M’s mental illness affects her capacity to give reliable evidence, I have approached her evidence with considerable caution, bearing in mind that her evidence is crucial to the prosecution case. I only act on her evidence if I am convinced of its accuracy. There is no doubt that in some respects she is mistaken. However, I do not think she was lying or being misleading in the evidence she gave. She is mistaken about matters she discussed with doctors and social workers in 2011 and the medications she was taking. This is explained by the passage of time and the fact that she had clearly not turned her mind to these matters prior to being cross-examined on them. Her evidence, particularly in cross-examination, about these matters does not in any way alter my confidence in the credibility and reliability of her evidence. I accept JM’s evidence about M being in the foetal position when he arrived following the accused’s phone call. M is therefore mistaken about being in the hallway when JM arrived. I bear in mind the criticisms made of her evidence by the defence. I have carefully considered those matters and I have scrutinised M’s evidence. I have not acted on it unless I am satisfied as to both its honesty and reliability. The criticisms made and concerns identified by defence counsel do not alter my confidence in the reliability and truthfulness of her evidence in relation to the events of 18 August 2011. I am satisfied that she was both honest and reliable. I also do not regard M’s previous inconsistent statement to the police or in Court as undermining her credibility. I accept that there was a report of the rape in December 2011 and that police referred the report to the appropriate investigators.
In arriving at my assessment of her I have had regard to her demeanour. I have done so in my overall assessment of her evidence. When looking at her evidence in its entirety, particularly about the events of 18 August 2011, there was a quality and coherence to it that was compelling, wholly plausible and convincing.
I make it clear that I am satisfied beyond reasonable doubt, having scrutinised M’s evidence in accordance with the decision in Bromley, that M’s mental illness does not affect my assessment of her as a credible and reliable witness. I accept her evidence on the central allegations beyond reasonable doubt. I find that on 18 August 2011 the accused had penile vaginal intercourse with M knowing that she was not consenting. I find M made it clear by her words and her actions that she did not consent. I find that she removed her clothing out of fear the accused would apply force or more force and she was not by this action freely and voluntarily agreeing to sexual activity. I find her father’s evidence about being concerned about her when the accused rang him, finding M in the foetal position, and that she said “He’s got to go”, supports her allegation. I find M made her initial complaint of the rape to a psychiatric registrar at the Royal Adelaide Hospital.
There is no reasonable possibility that the sexual intercourse between M and the accused on 18 August 2011 was consensual. On all of the evidence, I find the prosecution has proved beyond reasonable doubt the elements of rape.
Verdict
Accordingly, I find the accused guilty.