R v KANDEL

[2024] SADC 57

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v KANDEL

Criminal Trial by Judge Alone

[2024] SADC 57

Reasons for the Verdicts of her Honour Judge Kudelka 

21 May 2024

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - GENERALLY

The accused is charged with sexually assaulting two intellectually disabled female residents of a residential care facility, Ms AB and Ms CD.  He was employed as a carer.  It is alleged that he committed the offences on the same day at the facility.  The offence is not proved beyond reasonable doubt in relation to Ms AB.  The offences are proved beyond reasonable doubt in relation to Ms CD.

Verdicts: Not guilty (count 1), Guilty (counts 2 and 4).

Evidence Act 1929 (SA), referred to.
R v Sparks [2017] SASCFC 171; R v Partington (2018) 132 SASR 11; R v Maiolo (No 3) [2014] SASCFC 89; R v Marshall [2023] SASCA 105; Slape v The Queen [2022] SASCA 91; Sexton v The Queen (2022) 141 SASR 325; Bromley v The Queen (1986) 161 CLR 315; Dennerley v R [2022] SASCA 92; R v Adamson [2018] SASCFC 114; R v Wildy (2011) 111 SASR 189, applied.

R v KANDEL
[2024] SADC 57

1. The accused is charged with committing sexual offences against two women with intellectual disabilities.  The complainant, AB, was then 59 years old, and the complainant, CD, was then 35 years old.  They both lived in the same residential care facility.  The accused was employed as a care worker and rostered to work at the facility on 7 August 2020 because of the regular worker’s absence.  It is alleged he committed the offences on that day.

2. In relation to AB, the accused is charged with:

   ·aggravated indecent assault (count 1).[1]  It is alleged that he indecently assaulted AB by moving her hand towards his penis.  The offence is aggravated because it is alleged that he committed the offence knowing that AB was at the time of the offence in a position of particular vulnerability because of cognitive impairment.

   [1] Section 56 of the Criminal Law Consolidation Act, 1935.

3. In relation to CD, the accused is charged with:

   ·rape (count 2).[2]  It is alleged that he raped CD by penetrating her vagina or labia majora with his penis without her consent whilst knowing or being recklessly indifferent to the fact that she was not so consenting.

   ·unlawful sexual intercourse (count 3), in the alternative to count 2.[3]  It is alleged that he had sexual intercourse with CD by penetrating her vagina or labia majora with his penis, knowing that she was by reason of her intellectual disability unable to understand the nature or consequences of sexual intercourse.

   ·aggravated indecent assault (count 4).[4] It is alleged that he indecently assaulted CD by touching her breasts.  The offence is aggravated because it is further alleged that he committed the offence knowing that CD was at the time of the offence in a position of particular vulnerability because of cognitive impairment.

   [2] Section 48(1) of the Criminal Law Consolidation Act, 1935.

   [3] Section 49(6) of the Criminal Law Consolidation Act, 1935.

   [4] Section 56 of the Criminal Law Consolidation Act, 1935.

4. The accused elected for trial by Judge alone.

   The elements of the offences

5. In relation to the offence of aggravated indecent assault (counts 1 and 4), the prosecution must prove each of the following three elements of the offence beyond reasonable doubt:

   1.     The accused assaulted the complainant.

   2.The assault occurred in circumstances of indecency, which involves a sexual connotation.

   3.The accused knew that the complainant was, at the time of the offence, in a position of particular vulnerability because of cognitive impairment.

6. In relation to the offence of rape (count 2), the prosecution must prove the following three elements of the offence beyond reasonable doubt:

   1.The accused engaged in an act of sexual intercourse with the complainant.

   2.     The complainant did not consent to engaging in sexual intercourse.

   3.The accused knew, or was recklessly indifferent to, the fact that the complainant was not so consenting.

7. In relation to the alternative offence of unlawful sexual intercourse (count 3), the prosecution must prove the following elements:

   1.     That the accused had sexual intercourse with the complainant.

   2.The complainant was, by reason of her intellectual disability, unable to understand the nature or consequences of sexual intercourse.

   3.The accused knew that the complainant was, by reason of her intellectual disability, unable to understand the nature or consequences of sexual intercourse.

8. The main issue at trial was whether the prosecution has proved beyond reasonable doubt that the act the subject of each count did in fact occur.

   Proof

9. The prosecution has the burden of proving each offence.  There is no onus on the accused to prove anything.  The accused has the presumption of innocence in his favour.  The prosecution must prove each element of the offence to the standard of beyond reasonable doubt.  It is not sufficient for the prosecution to prove a suspicion of guilt, or that the accused is possibly, or probably guilty.

   The prosecution case

10. The prosecution called evidence from the two complainants (AB and CD), employees/former employees of the Department of Human Services or disability support organisations (Mr Wayne Cunningham, Ms Gillian Lee, Ms Paula Goller, Mr David Clarke, Mr Justin Tan, Mr Daniel van Rosen, Ms Kyra Allen), CD’s guardian (Ms DM), police officers (Brevet Sergeants Andrew Murphy and Andrew Plumb), medical professionals (Dr Anthony Todd and Ms Tracey Markham), a forensic psychologist (Mr Luke Broomhall) and a forensic scientist (Mr Luke Volgin).

11. The evidence of the complainant, AB, comprised two interviews with Brevet Sergeant Arblaster on 16 August 2020[5] and 25 June 2021[6] and pre‑recorded evidence at a pre-trial special hearing on 3 December 2021.[7]

    [5]Exhibit P5.

    [6]Exhibit P7.

    [7]Exhibit P8.

12. The defence challenged the admissibility of both interviews on the basis that the interviews do ‘not meet the prescribed requirements under r 23(7) of the Summary Offences Regulations 2016 in that it is not apparent the complainant understands the difference between the truth and a lie’.[8]

    [8]     Application pursuant to Rule 49 dated 15 October 2021, paragraphs 9, 11.

13. Section 74EB(c) of the Summary Offences Act 1953 (SA) provides that the manner in which the interview is conducted must meet the prescribed requirements to the prescribed extent. Regulation 23(7) of the Summary Offences Regulations 2016 provides that:

    (7) For the purposes of section 74EB(c), the manner in which an interview with a vulnerable witness is conducted will meet the prescribed requirements if—

    (a)     so far as is practicable, any statement made by the vulnerable witness is not elicited by the use of leading questions; and

    (b)     the vulnerable witness appears to understand that he or she must tell the truth; and

    (c)     the interview is conducted in accordance with this regulation.

14. Section 13BA(3)(b)(i) of the Evidence Act 1929 (SA) (the Act) provides that an audio visual record of a witness made pursuant to Part 17 Division 3 of the Summary Offences Act 1953 may be admitted if the court is satisfied as to the witness’s capacity to give sworn or unsworn evidence at the time the recording was made.  The material capable of satisfying that test will depend on the facts and circumstances in each individual case.[9]

    [9]     R v Sparks [2017] SASCFC 171, [47].

15. The defence submitted that AB gave two different accounts on the two occasions, that the test used in the interviews to try and demonstrate an understanding about the difference between a truth and a lie was too low and it was never made clear that AB understood the importance of telling the truth.[10]

    [10]   Hearing on 29 November 2021, T37 – 39.

16. The prosecutor submitted that AB demonstrated a sufficient understanding of the basic difference between the truth and a lie.  Her statement at the end of the first interview that she had not told the truth and now needs to do so demonstrates her understanding.[11]

    [11]   Hearing on 29 November 2021, T39 – 43.

17. I agree with the prosecutor’s submission.  At the start of the interview on 16 August 2020, AB was asked a question about the interviewer wearing a hat and she correctly said that would be a lie.  She was asked whether she would tell the truth and indicated that she would.[12]

    [12]   Exhibit P5, MFI P5A, pp 1 – 2.

18. On 25 June 2021, she was asked a similar question about the interviewer wearing a yellow spotty top, answered correctly then indicated that she would tell the truth.[13]  During that interview, she told the interviewer that she told a lie in the first interview.[14]

    [13]   Exhibit P7, MFI P7A, lines 13 – 28.

    [14]   Exhibit P7, MFI P7A, line 72.

19. Having watched both interviews, I found that there was sufficient material to be satisfied that AB demonstrated an understanding about the difference between the truth and a lie.  She also appeared to understand that she must tell the truth.  The fact that she told the interviewer in the second interview that she had lied in the first interview indicated that she understood the difference between the truth and a lie.

20. Lines 34 – 40 of page 16 of the interview on 16 August 2020 were excluded by consent.[15]

    [15]   Application pursuant to Rule 49 dated 15 October 2021, paragraphs 10b; hearing on 29 November 2021, pp 53 – 54.

21. The evidence of CD comprised an interview with Brevet Sergeant Kylie Hammond on 16 August 2020[16] and pre‑recorded evidence given at a pre‑trial special hearing on 8 December 2021.[17]

    [16]Exhibit P2.

    [17]Exhibit P4.

22. The defence challenged the admissibility of the interview of CD on 16 August 2020 on the same basis as the challenge to AB’s interviews.[18]  It was submitted that during the interview, CD demonstrates confusion, does not follow questions, is unable to give a coherent narrative and gives conflicting accounts.  It was submitted that CD is not in a position to tell the truth about what happened.[19]  The interview was more prejudicial than probative having regard to the statement of Ms DM and the manner in which questions need to be put.[20]  The statement of Ms DM (dated 16 November 2021) addressed CD’s communication levels, including ways to ask and not ask CD questions.

    [18]   Application pursuant to Rule 49 dated 15 October 2021, paragraph 13.

    [19]   Hearing on 29 November 2021, T43 - 44.

    [20]   Hearing on 18 November 2021, T27.

23. The prosecution submitted that CD does not give the most coherent narrative but rather, it is an unsophisticated narrative from a person with an intellectual disability.[21]  She was able to correctly answer the questions about the interviewer wearing a hat.  She indicated that would be a lie.  In response to the question, ‘What would the truth be?’, she answered ‘No’, which should be taken to mean ‘no, you are not wearing a hat’.  She is able to demonstrate an understanding about consequences (she asked, ‘he in gaol?’ and asked on occasions whether she was in trouble) and articulate when she does not know things.  I agree with the prosecutor’s analysis of the interview.  In my view, CD demonstrated the basic understanding about the difference between the truth and a lie.  She also appeared to understand that she must tell the truth.  I did not find there to be any identified prejudice to the defence in the way in which the questions were put.

    [21]   Hearing on 18 November 2021, T27 – 29; Hearing on 29 November 2021, T44 – 45.

24. I made orders pursuant to s 13BA(1) of the Act that the evidence of AB and CD be admitted at trial in the form of the audio visual records of the interviews and the pre‑recorded evidence.  The interviews satisfied the criteria for admission pursuant to s 13BA(3)(b) of the Act. The pre‑recorded evidence satisfied the criteria for admission pursuant to s 13BA(3)(a) of the Act, in that the recordings were made in a pre‑trial special hearing conducted in accordance with s 12AB of the Act.

25. At the pre-trial special hearings, I determined that AB and CD did not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence but I permitted each complainant to give unsworn evidence.[22]  In considering the weight to be given to the unsworn evidence I have borne in mind the warning and my determination that neither has sufficient understanding of the obligation to be truthful involved in giving sworn evidence.

    [22]Section 9 of the Evidence Act 1929 (SA).

    The residential care facility

26. The complainants, AB and CD, lived with a third resident (Ms EF) in supported accommodation at a house in a residential street.[23]  The facility supported individuals living with disabilities, particularly intellectual disabilities.[24]

    [23]   T42.

    [24]   T40.

27. The facility consisted of a main house with three bedrooms, a kitchen/dining area, a living area, and a laundry.[25]  There was also a granny flat, separate to the main house, which had its own bedroom, ensuite, small kitchen and living area.[26]

    [25]   T43-5; Exhibit P10; Exhibit P11.

    [26]   T43-45; Exhibit P11.

28. At the relevant time, AB lived in the granny flat.  CD and EF had their own bedroom in the main house.  The third bedroom in the main house served as both an office area and a bedroom for overnight staff.[27]

    [27]   T45.

29. The facility was run in two working shifts – the day shift and night shift.  All three residents were supervised during the day and supported at night.  A day shift staff member worked between the hours of 8.00 am and 5.50 pm and a night shift staff member worked between 5.50 pm and 8.00 am.[28]  Extra support from other staff members was sometimes provided; for instance, for medical support.[29]

    [28]   T52-3.

    [29]   T69.

30. At the end of each shift, there was a 10 minute handover period but for new staff, it was a 30 minute handover period so that new staff could familiarise themselves with the client plans and be introduced to clients.[30]  During the handover period, staff members would be expected to greet clients and discuss events of the day which required notification with outgoing staff, such as reporting any behaviours of concern or any concerns that warranted exceptional reporting such as inappropriate behaviours, illnesses, visitors to site and medication requirements outside of a client’s normal routines.[31]

    [30]   T52-53, 55.

    [31]   T55.

31. The facility kept various documents for its clients.[32]  The client profile was a one‑page document that contained the client’s photo and their basic skill set.  It was explained as a ‘snapshot’ of how to support a client.[33]  Other relevant documents included the client record, client support plan, and diary and communication book.  The client record contained all the information in relation to the client, including medical history, funeral arrangements, and specialist reports.  The client support plan outlined how a client ought to be supported, including mealtime management, personal care, and oral hygiene.  Finally, the diary and communication book provided information about the client’s activity schedule, such as doctor’s appointments.[34]

    [32]   Exhibit P11.

    [33]   T59.

    [34]   T60.

32. Staff members at the facility were also required to fill out documentation relating to the facility itself.  This included a daily house report, an activity schedule and a motor vehicle log sheet.[35]

    [35]   T60, 84; Exhibit P11.

33. In August 2020, Mr Wayne Cunningham was the area manager for the area which included this facility.  His role was to visit each of the 20 facilities in his area every three months, but he visited more frequently than that.[36]  He had been working within the Department of Human Services for about 30 years.[37]  He had previously been in the role of a carer for AB, CD and EF.  He had known CD since around the time of her admission to the facility.[38]

    [36]   T40.

    [37]   T38 – 39.

    [38]   T42.

34. In August 2020, Ms Paula Goller was a team supervisor for five facilities, including this facility.[39]  She visited care staff on an almost daily basis.  She had been in that role for about eight months prior to these allegations.[40]

    [39]   T159.

    [40]   T160.

35. In August 2020, Ms Gillian Lee was a carer.  She had worked at this facility for eight years or more.

    Other Resident - EF

36. EF moved in to live at the facility in about 2010.[41]  She is autistic and unable to talk, read or write.  She can understand what is said to her.  She needs to be supervised when leaving the facility but enjoys being with people.[42]

    [41]   T73.

    [42]   T123-4.

    Complainant - AB

37. AB is intellectually disabled and has an adjustment disorder.  She moved into the facility in February 2014.[43]  She requires 24-hour staff support to supervise her throughout the day and to be on call at night.[44]  She is independent in terms of toileting and bathing.  She has good communication skills and people are able to have a conversation with her.  She has basic literacy skills but cannot understand the value of money.  She is able to express things that she likes and does not like.[45]

    [43]   T73.

    [44]   Exhibit P11.

    [45]   T124-125.

    Complainant - CD

38. CD is intellectually disabled and suffers from anxiety and depression.[46]  She has a moderate to severe intellectual disability.[47]  CD moved into the facility on 11 March 2009.[48]

    [46]   Exhibit P11.

    [47]   T225 (Dr Todd); T266 (Mr Broomhall).

    [48]   T73.

39. Various staff members at the facility were called to give evidence about CD.[49]

    [49]   Gillian Lee: T126 – 132; David John Clarke: T202 – 209; Justin Wan Kim Tan: T217 – 218; Daniel Van Rosen – T219 – 221

40. David Clarke explained that CD was high functioning.[50]  He described her as bubbly, inquisitive and curious.[51]  He also explained that CD did not require assistance with bathing or showering.

    [50]   T202.

    [51]   T203.

41. Mr Cunningham gave evidence that she only required a prompt and observation in relation to hygiene and bathroom routines.[52]  She had a behavioural issue involving jealousy and acting accordingly.  She had no behavioural issues of a sexual nature.[53]  She has no understanding of the value of money or about the concept of time.[54]  She is not able to operate a washing machine but is able to help bring washing in, put clothes away and do those sorts of chores.[55]  She can retrieve items such as bread or margarine.  She likes to ask new people about themselves.[56]

    [52]   T79, 95.

    [53]   T86 – 87.

    [54]   T88.

    [55]   T88 – 89.

    [56]   T89, 95.

42. Ms Lee also described various aspects of CD’s abilities – CD had good toileting and continence and could dress herself; she was unable to read or write, had no concept of time and was unable to leave the facility unsupervised.[57]

    [57]   T126-132.

43. The prosecution also called evidence from Ms DM, who was CD’s foster parent for approximately 10 years from 1995 when CD was 10 years old. Ms DM visited CD frequently at the facility, at least once a fortnight.[58]  Ms DM gave evidence about CD’s behaviours, schooling, and level of functioning.  She explained that CD has no concept of time and had to be supervised both inside and outside the home, such as in the kitchen, with strangers and crossing roads.[59]  CD cannot understand the difference between hot and cold taps or male and female door signs.  She needs help choosing clothing appropriate to weather conditions.[60]  CD also has echolalia, which is the meaningless repetition of another’s spoken words.[61]

    [58]   T179.

    [59]   T185 – 186.

    [60]   T181.

    [61]   T200.

1. I accept Ms DM’s evidence but need to state that there were occasions when she was non-responsive to the question and/or went off on a tangent.  She spoke quickly during her evidence and sometimes jumped from one event to another, making some answers difficult to follow.  At those times, she often included hearsay information in her answers which I have not relied upon unless counsel has indicated a non hearsay purpose.  I am not being critical of her.  Giving evidence is difficult particularly so for a foster mother in the context of these allegations.  There is no doubting her love for Ms CD and the care that she has provided for Ms CD in the past and ongoing. 

   Friday, 7 August 2020

2. Mr Okpagu worked a 12‑hour night shift at the facility which commenced on Thursday, 6 August 2020 with a handover to the accused on the morning of Friday, 7 August 2020.  He had never met the accused before and has no memory of anything significant about his limited interaction with the accused.[62]

   [62] Exhibit P15, Affidavit of Somto Okpagu dated 20 April 2022, [7] – [8].

3. At 9.00 am, Ms Allen arrived at the facility to collect CD.  Ms Allen was a carer who would take CD out for activities in the community on Monday and Friday each week.[63]  When she arrived, the accused said that CD was up and ready, but was in bed.  Ms Allen had not met the accused before.  Ms Allen went into CD’s bedroom.  CD was in bed, but dressed and eager to go.  Ms Allen thinks they went shopping.  There was nothing unusual about her interaction with CD that day; CD was normal.[64]

   [63]   T285 – 287.

   [64]   T290.

4. From 9.25 am to 10.52 am, the accused recorded that he used the facility’s vehicle to drive to Gawler and back.[65]  He also recorded in the 24‑Hour Report that he went for a drive with AB and EF and bought a cold drink for each of them.  He recorded that EF was ‘demanding while was in drive out’.[66]  When interviewed by the police on 16 August 2020, AB said that the accused took them for a drive to Gawler, ‘then he got us a drink and that, and then we just come home and that’.[67]

   [65]   Exhibit P11, tab 19, Motor Vehicle Log Sheet.

   [66]   Exhibit P11, tab 6.

   [67]   Exhibit P5; MFI P5A, p 14.

5. At 3.00 pm, Ms Allen and CD returned to the facility.[68]

   [68]   T287.

6. Dinner time was usually 5.00 pm.[69]

   [69]   T152.

   Count 1

7. It is alleged that the accused indecently assaulted AB when he attended at her granny flat to give her medication.  The records show that he gave her paracetamol at 12 noon and 4.00 pm.

8. AB gave evidence that the accused came to her unit with her medication.  She was lying down on her bed.  He asked her why she was lying on her bed and ‘stuff like that’.  He told her to get up for her tablets.  She was standing near him when she put her hand out for the tablets and he placed them in her open hand.  She then put her hand down by her side.  He took her hand and tried to get her to touch his penis over his clothes.  She pushed his hand away.  She did not end up touching his penis, he just tried to get her to touch it.  He did not say anything.  She showed him where the door was.[70]

   [70]MFI P5A, pp 17 – 21; MFI P7A, lines 80 – 87, 164 – 168; MFI P8A, pp 76 – 77.

   Counts 2, 3 and 4

9. During the interview on 16 August 2020, CD said she had been out that day at home care.  The offending happened when she got home, after she had been out.

10. She had a bath and was washing herself.  When she went into her room she was not wearing any clothes.  She sat down on her bed in her room.  The accused was already there.  ‘He put his pants down’, took them off completely.[71]  She said in the interview that ‘he put him willy in there … in my private part’.[72]  She was bleeding before the intercourse, she did not know why but then said ‘my periods’.  She said in the interview that what happened was ‘a bad thing’.  When it happened, neither of them spoke.  His willy was in her private for a short time.  He ‘touched my boobs’[73] before and after he put his willy in her private parts.  She did not like him touching her on the boobs.  She said she did not know what she was wearing, then said ‘T‑shirt’.  He touched her boobs on the inside.  She said in the interview, ‘I’m not in trouble’.[74]

    [71]   MFI P2A, page 9.

    [72]MFI P2A, page 8.

    [73]Page 13.

    [74]Page 11.

11. In cross-examination, CD said the accused made her dinner, but it was not spaghetti.  She had a bath after dinner.  She put her pyjamas on and went into her bedroom.  She said to the accused ‘come here’.  She denied the scenario put to her on behalf of the accused (that she said to the accused, ‘show me your dick’ or ‘show me your willy’).[75]

    [75]MFI P4A.

    From 6.20 pm

12. Ms Gillian Lee commenced her shift at 6.20 pm.[76]

    [76]   T136.

13. She noticed that the washing machine was on, and it looked as though the 50 to 60 minute cycle had only just started.  That was out of the ordinary because the day staff did not normally do the washing.  It was normally done in the morning.[77]

    [77]   T136 – 137.

14. As soon as Ms Lee turned into the hallway, CD ‘erupted’ out of her bedroom door saying ‘I’m not happy.  I don’t feel well.  There’s blood in the toilets and on the sheets’.  Ms Lee replied ‘Okay.  Let me just try and find out what’s happening’.  Usually, when Ms Lee arrived for a shift, CD would be lying in bed and say ‘hi’, if she got up at all.  On this occasion she was ‘upset and loud’.  She told CD to go and sit in the toilet and see if you feel better.  CD went into the toilet, which meant that Ms Lee could get past.[78]

    [78]   T136 – 137.

15. Ms Lee went into the office.  She did not recognise the accused.  She asked him ‘What’s happened to [CD]? How’s the day gone?’.  He said, ‘oh yes, we had to change her sheets because I think she had been rubbing herself too much’.  The accused put his hand down and rubbed back and forward on his groin area.  He said the rest of the day had been okay and that he was going.

16. During cross-examination, Ms Lee agreed with the suggestion that the accused said something like ‘[CD] had an accident in her bed and her sheets were wet so I had to change them’.  She agreed she said something like ‘Oh was it wee or blood?’.  She added that she thought she said, ‘Oh that’s unusual’ because CD had only arrived back home ‘like at 4 o’clock in the afternoon’.[79]  The accused said it was from her rubbing herself too much.  He did not say to Ms Lee that he saw her rubbing herself.[80]

    [79]   T149.

    [80]   T150.

17. The accused left at 6.30 pm. [81]

    [81]   T137 – 139.

18. Ms Lee went to see if CD was okay and CD ‘quite happily hopped back into bed’, she said ‘I’m going back to bed’.[82]

    [82]   T142.

19. Ms Lee gave evidence that AB came in from the lounge and said, ‘I want to talk to you’.  Following that conversation, Ms Lee contacted the night supervisor.

20. At around 10.30 pm, CD called out from the toilet saying that she was bleeding and wanted a pad.  Ms Lee observed that it was not bleeding like period bleeding but was more like a discharge colour (brownie/red).  Ms Lee got one of AB’s pads (because CD did not have pads) and asked CD if she was okay.  CD said, ‘I’m tired, I just want to sleep’.[83]

    [83]   T144.

    Saturday, 8 August 2020

21. Ms Lee gave evidence that in the morning, CD got up, wanted a cup of tea and then wanted to change the pad.  Ms Lee thinks there was some discharge on the pad.  She gave CD either a pair of knickers or CD just put her pyjama bottoms back on and went back to bed.[84]

    [84]   T145.

22. Ms Goller (team supervisor) started work at 7.00 am.  She immediately got a phone call from the night supervisor.  As a result of that information, she drove to the facility.  She arrived at the time of a handover from Ms Lee to Mr Van Rosen.[85]

    [85]   T161.

23. Ms Goller went to AB’s flat and spoke to her.  As a result of that conversation, Ms Goller went into CD’s room where CD was in bed.  Ms Goller tried to talk to her, but CD did not want to talk.  She told CD that she wanted to speak to her about yesterday, then asked CD about the accused and said, ‘Is he a nice man?’.  CD said ‘No’.  She rolled over away from Ms Goller.[86]

    [86]   T164.

24. Ms Goller left the facility, returning around 6.30 pm.  CD was in her room and did not want to talk to her.[87]

    [87]   T164.

25. The defence challenged the admissibility of the conversation between Ms Goller and CD.  It was submitted that it was not complaint evidence but rather inadmissible hearsay.[88]  The prosecution submitted that the initial complaint was a continuous conversation between Ms Goller and CD which commenced on 8 August and continued on 9 August.  This evidence is relevant to understanding how the conversation on 9 August came about, that it did not come out of the blue and so it puts into context what was said on 9 August. 

    [88]   Application pursuant to Rule 49 dated 15 October 2021, paragraph 3b; hearing on 18 November 2021, T6.

26. In R v Partington,[89] the complainant made a complaint of physical abuse by phone to her friend, Don, and then five minutes later complained to another friend, Reynolds, that she had been sexually assaulted.  Both conversations were admissible: ‘the trier of fact was entitled to take the view that the complaint to Don was a nonspecific – and perhaps rather tentative – prelude to the more detailed allegations made to Reynolds.’[90]  Here, the defence made the submission that the conversations were a day apart and what CD said was not even a reference to abuse, but simply a statement that she did not like the accused.

    [89] (2018) 132 SASR 11.

    [90] At [48].

27. In my view, the conversation between Ms Goller and CD was admissible pursuant to s 34M of the Act.  There was no complaint of a physical or sexual assault, but in the context of CD’s intellectual disability, it can be seen as part of a continuing inquiry that Ms Goller made of CD to try and find out what, if anything, had happened. 

    Sunday, 9 August 2020

28. On Sunday morning, Ms Goller spoke to CD again.

    Initial complaint by CD (counts 2 and 3)

29. Ms Goller went to the facility in the morning and spoke to Ms Lee.  She also tried to get in contact with Ms DM.  She left messages for her.  CD called out from her bedroom.  Ms Goller went into CD’s bedroom.  CD asked her why she was ringing her mum.  She told CD that it was about the other day.  She said to CD that ‘it will be okay’, that ‘you can tell me anything, I won’t be angry with her, that it doesn’t matter what she has to say’.[91]

    [91]   T166.

30. Ms Goller asked CD, ‘Did he hurt you?’  CD nodded.  Ms Goller tried to get her to talk some more but CD did not, so Ms Goller said, ‘What did he do?’.

31. CD told Ms Goller that he showed her his willy.  Ms Goller continued to try and engage with CD but nothing else was forthcoming, so she asked, ‘Did he put it inside you’.  She said ‘Yes’.

32. Ms Goller described CD as quite submissive, still curled up in bed and with her head turned away.  She was not herself. [92]

    [92]   T166.

    Gathered items

33. The police were called.  Ms Goller gave evidence that the police ‘said they would like some of CD’s possessions gathered together, things like her clothing, bedding, anything, towels, so that’s when I went and got some brown paper bags and I went back to the house and I did as I was told, I gathered all her clothes up – well, not all her clothes but the ones that she wore on the Friday, the towel that she used, all of that, packed it all up, labelled it…’.[93]  She got the bags from Woolworths and packed the items indicated into individual bags using gloves.[94]  She asked Ms Lee what clothes CD ‘had that day, the towel she had that day, anything else that I needed to be packing up from that afternoon/night’.[95]

    [93] T167 – 168.

    [94] T168.

    [95] T168.

34. Ms Lee gave evidence that ‘they wanted everything bagged up that could possibly be in relation to what had happened, so that’s when I went through her clothes for them’.[96]  ‘So I would have gone through and got the sheets that had been on the bed, because they were washed, but they said anything that she had actually had, which I knew, of course, because I had got them out and hung them up.  I knew which ones were hers’.[97]  She would have packed the sheets, the towel, the pyjamas, the knickers and wash cloth.[98]

    [96] T146.

    [97] T145. – 146.

    [98] T146.

    Police attendance

35. Brevet Sergeant Murphy attended at the facility at 6.40 pm.  There were two police officers already present who directed him to the bedroom where he took photographs.[99]  He received information that the bedding had been removed by staff since the incident and the bed re‑made.[100]  He stripped the bed down and used a Polilight to examine both sides of the mattress.  There were no areas of interest.[101]  There was no underlay on the bed.[102]

    [99] T29; Exhibit P9.

    [100] T29.

    [101] T31.

    [102] T33.

36. Police collected items 1 (blue pants, similar to jeans), 2 (underwear), 3 (sanitary pad), 4 and 5 (blue bed sheets), 7 (towel), 8 and 9 (pyjamas) and 11 (underlay) from the residential facility on 9 August 2020.  The items were already in individual brown bags.[103]

    [103] Exhibit P19, Agreed facts, [13].

    Monday, 10 August 2020

37. When Ms DM saw CD in the morning, CD made a further complaint.

    Initial complaint by CD (elaboration) (counts 2 and 3)

38. Ms DM gave evidence that she went to the facility in the morning, CD was in her bedroom.  The door was locked and the carer unlocked it.  The room was very black inside and CD was in bed.  She said to CD, ‘This is mum, I love you, are you okay?’.  CD rolled over, sat up and gave her a big hug.  She then ‘started blurting everything out’.  She said, ‘Me bleeding’, ‘Arjun come in my room.  Arjun show me his willy’, ‘Arjun put willy down there’.   Her hand was down between her legs and doing what Ms DM described as ‘like thrusting the penis’.[104]  At that point, I observed the witness use her hand over the groin area and shaking.  Ms DM agreed with that description.  She gave evidence that CD was ‘going like that (witness indicated), like a masturbation’.  Ms DM gave evidence that CD put her fingers together and she thrust it down there like that (witness indicated).  Counsel agreed that Ms DM demonstrated with an open hand with the palm facing toward the groin and the back of the hand facing outwards.  Ms DM used the term ‘masturbation’ because CD ‘moved her palm vigorously in front of her fanny’.[105]  She told CD that she was going to keep her safe and that the accused will never be allowed to come in the room.[106]

    [104] T190.

    [105] T191.

    [106] T190 – 191.

39. The defence challenged the admissibility of that conversation on the basis that it did not amount to an elaboration of the complaint made to Ms Goller.[107]  It was submitted that the disclosure from CD that the accused ‘show me his willy’ was almost word for word what was said to Ms Goller.  The prosecution submitted that the disclosure to Ms Goller was a one word response to a leading question.  This was an elaboration in the sense that she was telling Ms DM was happened in her own words, even though the essence of what was disclosed was very similar.[108]

    [107] Application pursuant to Rule 49 dated 15 October 2021, paragraph 6b; hearing on 18 November 2021, T16.

    [108] Hearing on 18 November 2021, T15.

40. In my view, the evidence was admissible as ‘information provided by way of elaboration of the initial complaint’.[109]  It was sufficiently connected with the conversation that Ms Goller had with CD so as to be reasonably viewed as one complaint.  This was the first time that CD had seen her guardian (Ms DM) since the incident.  Ms DM asked CD if she was okay.  The response was an elaboration in the sense that it was capable of rationally affecting the assessment of CD’s credibility. The response was in the form of a narrative rather than largely a one word response to a leading question.  That was not insignificant in the context of CD’s intellectual disability.

    [109] R v Maiolo (No 3) [2014] SASCFC 89, [82] – [83].

41. During cross-examination, Ms DM was asked whether CD told her that the accused told her to sit still.  She gave the following evidence:

    That incident I couldn't understand why [CD] wouldn't have yelled at somebody if they were attacking her because she's been aggressive in the past and I asked [CD] 'Did you yell at Arjun or did he yell at you?' and she said 'No', and I said 'Well what did he say?' and she said in a deep, male voice, and she does have a history of mimicking people on occasion, she said in a deep, male voice 'Sit still', and I don't forget that moment.[110]

    [110] T197.

    Examination of CD

42. Ms DM and Ms Goller took CD to Yarrow Place for a medical examination.

43. Ms Markham is a registered nurse who examined CD at Yarrow Place on 10 August 2020 from 11.00 am to 12.20 pm.  Ms Markham gave evidence that CD was very labile in her demeanour, which is consistent with her intellectual disability.  At times CD got upset, other times she was laughing.  She was walking around the room, very inquisitive, wanting to touch things and not sticking to the questions that were being asked.[111]

    [111]T236.

44. Ms Markham gave evidence that there was nothing of note in the head to toe examination.  There were two linear abrasions on the left side of the opening of the vagina as well as some erythema around the perianal area.  She had to slightly move the labia to observe those abrasions.  One abrasion was 0.1 cm and the other was 0.2 cm.  They were tender and there was some bleeding.

45. In her opinion most vaginal injuries heal within three to five days if they are small.  She estimated these were made within three to five days.

46. Such abrasions may be caused by blunt or sharp objects moving across the skin causing friction and the disruption in the skin mucosa.  In her opinion, the abrasions could be consistent with penetration of the vagina by a penis or a finger.  That latter is more likely because normally linear abrasions are caused by something sharp.  They may also be caused by pressure and movement of an object as well.  If the area is not lubricated, pressure can cause abrasions.

47. The erythema was around the abrasions.  It was around the posterior fourchette (a band of tissue that connects the two labia minora at the base of the vagina).  There could be multiple mechanisms and causes, including penetration with a finger, penis or object causing pressure moving across the skin.  It could be caused by rubbing or wiping or otherwise an infection or disease process or any other skin condition such as eczema.  The friction and the rubbing can cause the redness.

48. Swabs taken to check for infection or disease came back negative.  There were no signs of skin condition such as eczema on any area of her body.

49. She was not able to conduct an internal examination because of the distress caused to CD.  She was not able to view the high vagina area or the cervical area.

50. Ms Markham did not see any signs that CD was menstruating.  She was not wearing a sanitary pad.

    Cross-admissibility

51. The evidence of CD is evidence of discreditable conduct if admitted in relation to the allegation made by AB.  Similarly, the evidence of AB is evidence of discreditable conduct if admitted in relation to the allegations made by CD. 

52. Evidence of discreditable conduct is inadmissible for the purpose of suggesting that the accused is more likely to have committed the offence against the complainant because he has engaged in discreditable conduct with the other complainant (s 34P(1)) but may be admitted for another purpose if the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant (s 34P(2)(a)). [112]

    [112] From 1 June 2022, the word ‘substantially’ was deleted from s 34P(2)(a) which stated that: ‘Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if – (a) the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant.

53. If there is a permissible use, it is necessary to have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.[113]

    [113] Section 34P(3).

1. The prosecution submitted that the permissible use of the discreditable conduct evidence takes the form of improbability reasoning, that is, it is said that the discreditable conduct evidence affects the probability of the existence of a fact in issue in relation to the offence against the complainant.  The fact in issue is whether the conduct the subject of the offence did in fact occur.  The probative value lies in the improbability of them giving accounts of what occurred to them with the requisite degree of similarity unless what they are describing did in fact occur.[114]

   [114] R v Marshall [2023] SASCA 105 at [160].

2. The prosecution submitted that the requisite degree of similarity includes the accused having ‘crossed the line’ in relation to both complainants prior to the day in question.  He then ‘crossed the line’ on the day of the offending.  He ‘became a predator to some of the most vulnerable members of our community and people who had very little power or capacity to protect themselves’.  The prosecution made the point that the evidence of the complainants is not perfect, but the evidence they have given with the capacity that each has is compelling.  The prosecution submitted what is ‘the likelihood that these two women speak of a sexual assault by the same person on the same day in the circumstances that they have, albeit different offending with each of them, unless what they say happened to each of them did happen?’.[115]  It was submitted that the matters relied upon ‘are two people living within the same house but separate from each other where things are said to have happened.  Two people with the same relationship, happening to be with the care of person in the house, opportunity for both of those things to happen’.[116]

   [115] T421.

   [116] T422.

3. The defence submitted that the assessment of the probative force of similarity of account evidence requires a focus on the similarities and dissimilarities that bear upon the probability of independent concoction, fabrication or imagination;[117] it is necessary to focus upon similarities and dissimilarities in the narrative of the allegations made by the complainants, not upon personal characteristics of the complainants.[118]

   [117] Written outline of closing address for the accused, [8], citing Slape v The Queen [2022] SASCA 91 at [56].

   [118] Slape at [57].

4. In R v Marshall,[119] the Court of Appeal was concerned with the evidence of two female children describing allegations of sexual abuse committed by their step‑father during the period he was in a relationship with their mothers.  That alone was not necessarily sufficient to justify cross‑admissibility on the basis of similarity of account reasoning.[120]  The inquiry is concerned with the extent to which the similarities (or otherwise) bear on the improbability of collusion, concoction or coincidence by the complainants.[121]  It is necessary to look to the whole of the accounts of the complainants, in context.[122]

   [119] [2023] SASCA 105.

   [120] At [162].

   [121] At [161].

   [122] At [162].

5. Here, the prosecution did not provide a list of issues by which similarity of account was to be evaluated.[123]

   [123] R v Marshall at [157].

6. The prosecution submission that there was similarity because the accused ‘crossed the line’ in relation to both complainants prior to the day of the alleged offending was an accurate generic description, but the evidence of how he allegedly ‘crossed the line’ is different.  With AB, it was by direct conversation with her.  With CD, it was by way of an inappropriate gesture to a colleague about which CD was unaware.

7. The prosecutor properly conceded the different nature of the alleged offending.[124]  AB alleged the accused tried to get her to touch his penis; CD alleged penile/vaginal rape and that he touched her breasts.  In my view, there was little similarity in account of the alleged offending itself, other than the obvious being that they are both of sexual assault.

   [124] T404, 421.

8. The prosecution relied upon there being a ‘similarity’ in the accounts in that the sexual assaults occurred on the same day in the same facility in relation to these two female residents.  The improbability was expressed in terms of the likelihood that these two women speak of a sexual assault by the same person on the same day in the circumstances that they have.

9. To be admissible, it is necessary that the probative value outweighs any prejudicial effect it may have on the accused, which must include the effect of the impermissible use of the evidence.  The removal of the word ‘substantially’ from the test in s 34P(2)(a) was intended to ease the admissibility of evidence, in accordance with the recommendation made by the Royal Commission.  The difference is one of degree.[125]  In my view, the probative value of the discreditable conduct is slight.  As this is a trial by judge alone, the prejudicial effect is slight and can be kept sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.[126] Having considered the whole of the accounts of the complainants in context, I do not consider the matters raised to be sufficient to justify cross‑admissibility on the basis of similarity of account reasoning.  I do not consider that:

   … the level of similarity between the accounts of the … complainants has such a degree of similarity to give rise to only two possible hypotheses; collusion and concoction, or, that the accounts are true because it is so improbable that independent of one another they could have, as a matter of coincidence, been independently fabricated, imagined or otherwise mistaken.[127]

   [125] R v Marshall at [169].

   [126] Section 34P(3).

   [127] Sexton v The Queen [2022] SASCA 73, [138] (Livesey P, David JA and Stanley AJA).

10. The discreditable conduct evidence of one complainant does not sufficiently affect the probability of the fact in issue in relation to the alleged offence against the other complainant.  Their accounts of the offending are too dissimilar.  I have not used the discreditable conduct evidence relating to CD when considering the evidence of the charged offence against AB.  I have not used the discreditable conduct evidence relating to AB when considering the evidence of the charged offence against CD.

11. Even if the discreditable conduct evidence was admissible pursuant to s 34P(2)(a), I indicate that my verdict for count 1 would have been the same.  That is not because I consider there was collusion or concoction between AB and CD.  I agree with the prosecutor’s submissions that concoction or collusion can be excluded because (a) the allegations are different in nature and there is no crossover or parroting of language; (b) a suggestion that one has influenced the other does not sit with two very different accounts being given; and (c) even though they had spoken to each other, that is understandable because they live in the same house and were upset, yet, for example, AB is very clear that she did not see what happened to CD but was told by the accused to leave and went out to her unit.[128]  Rather, my verdict for count 1 would have been the same because (1) I am satisfied beyond reasonable doubt that an indecent assault of some nature occurred without the need to consider the discreditable conduct evidence relating to CD and (2) the discreditable conduct evidence could not help resolve my doubt about the nature of the indecent conduct that occurred in relation to AB (see [140] below).

    [128] T405.

12. There was no application for severance of the counts.[129]  The counts were properly charged on the one Information.  If it had been determined that the evidence of AB’s allegations was not admissible in relation to CD’s allegations (and vice versa) then a separate trial may have been ordered, but it is not required.  The evidence of AB about the events on 7 August 2020 (other than her allegations the subject of count 1) was relevant and admissible in regard to the chronology of events leading up to the allegations made by CD, including AB witnessing certain events around the time of the alleged offending against CD.  Given AB’s vulnerability, it would have been highly undesirable for her to give evidence in one trial relating to CD’s allegations and then give evidence in another trial about her own allegation.

    [129] 18 November 2021, T32.

    Consideration of count 1

13. The prosecution case is that the accused committed the offence, the subject of count 1, at around either 12.00 noon or 4.00 pm on 7 August 2020.  In her first interview, AB said that the incident happened after CD got home.[130]  Ms Allen gave evidence that CD got home at about 3.00 pm.[131]  I find that the relevant time for the alleged incident the subject of count 1 is around 4.00 pm.

    [130] Exhibit P5; MFI P5, page 9.

    [131] T287.

14. The defence submission is that the ‘obvious difficulty with [AB]’s evidence is that for the first 26 minutes of a 33 minute interview, she gave an account of an entirely different event to the one that is now charged’.[132]

    [132] Written submissions of closing address for the accused, [32].

    Inconsistent evidence

15. There is no dispute that AB gave an inconsistent account when she spoke to the police on 16 August 2020.  During the first 26 minutes of that interview, she alleged that the accused touched her on the leg, not that the accused tried to get her to touch his penis: ‘on Friday the bloke come and gave me my tablets and that after he touched me on my leg and then I pushed him, pushed his hand away’.[133]  She was in her unit, just near her door when he gave her the tablet.  He looked around her unit to see if anyone else was there.  She indicated that he touched her near the upper thigh near the groin area with one hand.

    [133] MFI P5A, page 5.

16. AB did not resile from that version of events until the end of the interview when she was asked whether there was anything else that she wanted to say and whether there was anything else that the interviewer should know.[134]  She initially said ‘no’, but then said, ‘I better tell, I know I am going to get told off and that’.  The interviewer said she was not going to get told off and AB then said ‘no, I should of told you the truth’.[135]

    [134] MFI P5A, page 17.

    [135] Page 17.

17. AB then said ‘He didn’t touch – sorry - he didn’t touch my leg, he tried to get me to touch his thing, and I just pushed my hand away.’[136]  She explained that he tried ‘to get me and that to touch his penis and that … and I just went like that’ and then she said to the interviewer, ‘Oh boy … yeah, I am in trouble … cos, sorry about saying about with my leg’.[137]  She told the interviewer ‘I gonna get in trouble for making the wrong mistake’.[138]  She repeated that he tried to get her hand to touch his thing.  It happened when he gave her the medication and she was standing near him.

    [136] Page 17.

    [137] Page 18.

    [138] Page 18.

18. The defence submitted that the allegation is uncorroborated.  Such a material inconsistent statement must create a doubt as to whether the allegation ultimately made is true.[139]

    [139] Written submissions of closing address for the accused, [34].

19. The defence submitted that during the first 26 minutes of the first interview, AB expressly stated that the accused did not touch her anywhere else.  The interviewer said ‘So you told me that he touched you on your leg.  Did he touch you anywhere else?’.  AB replied ‘No’.[140]  The defence submitted that it could not be said that AB did not consider the accused touching her hand to be significant.  She told the interviewer that it was not okay for someone to touch her hands.[141]

    [140] Exhibit P5, MFI P5A, page 7.

    [141] Written submissions of closing address for the accused, [33] referring to MFI P5A, page 7 lines 15 – 22 and pages 11 - 12. 

20. I agree with the defence submission that it is a material inconsistent statement.  In the second interview on 26 June 2021, AB admitted that she did not tell the truth during the first interview.

21. I need to consider AB’s explanation for the inconsistency, which is an admitted lie.

22. In the second interview, AB explained that she told a lie because ‘I didn’t want to get myself in trouble’.[142]  She was asked why she would have gotten herself in trouble and she replied, ‘I don’t know, cause I wouldn’t have a clue’.[143]  She said that if she had told Gill the truth then she might get in trouble.  She then said she told Paula the truth.  She said she was very frightened about what happened and she did not know what to do.

    [142] MFI P7A, line 76.

    [143] MFI P7A, line 78.

23. The prosecutor submitted that it is as clear as day that AB thought she was in trouble.  She was worried she had done something wrong.  In her initial account, she is testing the waters, saying that something happened, but not the extent of it.  On the first scenario she described, she is a passive participant rather than what might be considered, on her unsophisticated view, to be a more active one involving her hand.  She had been speaking to the police lady for some time by the time her true account was revealed and by that stage, she has been told she cannot get into trouble.[144]

    [144] MFI P7A line 78.

24. I agree with the prosecutor’s submission that there were multiple times during the first interview when AB said that she thought she was going to be in trouble and was assured that she was not in trouble.

25. It was explained to AB at the outset that if she did not understand the interviewer or know the answer, she needed to say ‘I don’t understand’ or ‘I don’t know’.  She replied ‘Don’t know, okay.  Am I gonna be in trouble with this when I?’.  She was told that ‘You’re not gonna be in any trouble’.[145]

    [145] Exhibit P5, MFI P5A, page 2.

26. A short time later in the interview, she was asked to tell the interviewer a bit more about being touched on the leg.  During her reply she said she did not know what to do next, ‘I just want to forget about everything’.  She was told by the interviewer that it was all okay, ‘Remember you can’t get into any trouble’.[146]  Shortly after that AB explained that she pushed his hand away, then she walked him to the door, ‘Yeh, I should of…yeh…it was like that, panicked.  Mmm.  Well I’m saying the truth or not?’.[147]

    [146] Exhibit P5, MFI P5A, page 6.

    [147] Exhibit P5, MFI P5A, page 7.

27. At a later point she was discussing CD and said to the interviewer, ‘Am I gonna be in trouble with that?’.  AB was told by the interviewer that she was not in any trouble and she can’t get into any trouble.[148] 

    [148] Exhibit P5, MFI P5A, page 16.

28. A short time later, the interviewer told AB that if she thinks of anything after she leaves to let one of her support workers know.  AB replied ‘Ohh..I better tell, I know I’m gonna get told off and that…’  The interviewer said ‘Remember, you’re not gonna get told off’.  AB replied, ‘No, I should have told you the truth’.

29. At the pre‑trial special hearing, AB was cross‑examined.  She was shown part of the video recording of the first interview.

30. She insisted that she was not telling lies when she said that the accused tried to get her to touch his penis.  She gave evidence that the accused put antibiotics in her hand; he did not hold her hand when he did that. She was asked ‘He didn’t move your hand towards his penis though, did he?’ she responded, ‘I don’t know’.[149]  I indicated to counsel that I thought it was not a good question for the witness because it appeared to me that AB did not understand it.  I then asked some questions to clarify the chronology of events up to the point of counsel’s question.  In response, AB gave evidence that the accused gave her the tablets in her hand (she demonstrated having one hand out in front of her) but he did not take hold of her hand when he gave her the tablets.  After she took her tablets, she put her hand down by her side.  Defence counsel then put to AB that the accused did not try to get her to touch his penis.  She insisted that he did and that she pushed his hand away.

    [149] T75.

31. The prosecutor submitted that the way in which AB described the alleged offending was compelling.  She expressed confusion, uncertainty and fear like a child, in the sense that she does not have the capacity or life experience to know what to do in an unfamiliar situation.  The prosecutor referred[150] to AB’s evidence in the second interview, 'He wanted me to do that and I was just like…when he got me to touch him…I was very frightened and that…yeah very frightened about it...because I didn't know what to do…when he did that, I didn't know if he could go or do I ring the police or any or anybody. I was I tell ya now, I was shit scared.'[151]  The prosecutor submitted that it was an account of a person genuinely trying to explain not just what happened, but also how she felt about it at the time.  It was unsophisticated, yet compelling.

    [150] T387.

    [151] Exhibit P7; MFI P7A, Q 142 – 148.

32. The prosecutor also submitted that AB, as is typical for victims of sexual offences, blamed herself for what happened, saying ‘I should have told him to get out of my unit’.[152]

    [152] T388 referring to Exhibit P5, MFI P5A, page 20.

33. The prosecutor also highlighted AB’s account of standing near him and ‘he just like he ‘cos I, I’m not like that.  He wanted to touch, but it’s yuk, you don’t know where it’s been’.[153]  She submitted that it was a simple, clear and definite reaction in simply clear and definite language, along with the demonstration yet again that she was trying to push him away.

    [153] T388 referring to Exhibit P5, MFI P5A, page 21.

    Prior inconsistent statement

34. I also need to consider the prior inconsistent statements made by AB to Ms Lee and Ms DM. 

35. During cross‑examination, Ms Lee agreed that AB told her that while the accused was giving her medication, he put one of his hands onto her vaginal area.[154]  It seems that statement was made by AB on the Friday evening and caused Ms Lee to speak to the night supervisor.[155]

    [154] T150.

    [155] T143.

36. During cross-examination, Ms DM agreed that about a week after the alleged incident, AB told her that when she was in her private unit, the accused had touched her on the breast and slid his hand up along her thigh.[156]

    [156] T197.

    Prior discreditable conduct

37. In the first interview, AB gave evidence that one day the accused took her for a drive and asked her whether she slept with Darryl.  She replied, ‘what are you talking about, you should not ask me questions like that’.  She then ignored him. She said that on Friday the accused asked whether she was going to marry Darryl and she said, ‘What’s your business about’.[157]  She said he had taken her for a drive two times.

    [157] Page 14.

38. In the second interview, she gave evidence that the accused used to ask her all the time when they were driving whether she slept with Darryl, whether she had sex with Darryl.  She said to him to ‘mind your own nose…it has nothing to do with you’.[158]

    [158] Line 188.

39. The defence applied for that evidence to be excluded from the interview on 16 August 2020.[159]  It was submitted that the evidence was more prejudicial than probative.  At best, the conversation showed an inappropriate interest in AB’s sex life; it did not show a sexual interest in her.[160]  I declined to exclude the evidence on the basis that further argument was to be made regarding its use under s 34P of the Act.[161]

    [159] Application pursuant to Rule 49 dated 15 October 2021, paragraphs 10a and 12.

    [160] Hearing on 29 November 2021, T54.

    [161] Hearing on 1 December 2021, T60.

40. The prosecution submitted that this evidence was admissible pursuant to s 34P(2)(b) of the Act as demonstrating a sexual interest in AB which moved from thought to word, from idle curiosity to questioning.  It was entirely inappropriate for a relief carer and is consistent with [AB’s] allegation that he took steps toward trying to get her to touch him.[162]

    [162] T389; also, hearing on 29 November 2021, T52 - 53.

41. I do consider this was evidence of a sexual interest on the part of the accused toward AB with a willingness to act upon it (that is, to question AB about sex with her friend) but I do not consider it rises to the level of strong probative value having regard to the particular issue at trial (whether the accused in fact engaged in the indecent assault which is the subject of count 1) for the purpose of s 34P(2)(b).  The accused’s questions of AB were not about whether she would engage in sexual conduct with the accused.  In my view, the evidence does have a permissible use which satisfies the test set out in s 34P(2)(a).  If proved, the evidence is capable of being used as evidence that the accused was endeavouring to find out AB’s sexual experience, testing the waters regarding her reaction to  him raising that topic and whether she tells anyone about his questioning.[163]

    [163] T439.

1. I accept AB’s evidence about what the accused said.  There was opportunity for the accused to have asked AB those questions on two occasions.  In addition to the shift on 7 August 2020, the accused had undertaken two shifts at the residential care facility on 4 and 29 April 2020.[164]  Although the Motor Vehicle Log Sheets were not tendered for those two dates in April 2020, I found AB’s evidence about the prior discreditable conduct to be credible and reliable.  I have not used the evidence to reason that the accused is more likely to have committed the offence because he has engaged in discreditable conduct.

   [164] Exhibit P11, Tabs 7, 13.

2. I have scrutinised the evidence relating to count 1, including the evidence about AB’s intellectual disability.  I am satisfied beyond reasonable doubt that the accused engaged in some type of indecent conduct toward AB on 7 August 2020, but I am not satisfied beyond reasonable doubt that it took the form of the accused trying to get AB to touch his penis.  However, that is not because AB admitted that her first version to the police was a lie.  I accept that she lied because she thought she was going to get in trouble if she told the ‘correct’ version and I find the prosecutor’s submission about that to be persuasive.  However, the inconsistencies with the ‘correct’ version do not end there.  AB made inconsistent statements to Ms Lee and Ms DM.  On the whole of the evidence, the ‘correct’ version is not proved to the standard of proof beyond reasonable doubt.  I do not consider that AB is lying or making things up.  I am satisfied there was indecent conduct, but I am unsure about the nature of it.  In those circumstances, I find the accused not guilty of count 1.

   Consideration of counts 2, 3 & 4

3. CD is a crucial witness for the prosecution.  She has a moderate to severe intellectual disability.

4. The defence submitted[165] that the court will need to take into account the complainant’s intellectual disability and warn itself appropriately, citing Bromley v The Queen:[166]

   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.  The warning should be clear and, in a case in which a lay juror might not understand why the evidence of the witness was potentially unreliable, it should be explained to the jury which that is so.  There is no particular formula that may be used; the words used must depend on the circumstances of the case.

   [165] Written outline of closing address for the accused, [2].

   [166] [1986] HCA 49; (1986) 161 CLR 315 per Gibbs CJ, with whom Mason, Wilson and Dawson JJ agreed.

5. It was submitted that her evidence should not be accepted beyond reasonable doubt in the absence of corroboration.[167]

   [167] Written outline of closing address for the accused, [42] – [43].

6. I do not consider that a Bromley warning is necessary simply because a crucial witness has a moderate to severe intellectual disability.  Rather, the warning may be necessary if the witness has a mental disability which may affect his or her capacity to give reliable evidence.  The terms of the warning will depend upon the circumstances of the case.

7. There was evidence that CD has no concept of time.  She was asked during the interview whether the accused had ‘his willy in your private for a long time or a short time’.  She answered, ‘short time’.[168]  In my view, her mental disability may affect her capacity to answer such a question reliably.

   [168] MFI P2A, page 11.

8. There was also evidence that her mental disability affects her capacity to communicate about events because she has considerable difficulties with language processing and expressing herself.[169]  I accept Mr Broomhall’s evidence and opinions, including his evidence about CD’s verbal comprehension and perceptual reasoning.  With 95% confidence, CD has IQ points between 40 and 48 which is at the 0.1 percentile compared with her aged peers. The estimation is that she is functioning at between 12 to 14 years of age in terms of schooling level of intellectual functioning rather than practical functioning.  Mr Broomhall considers that to be an over-estimate.  In his opinion, she is more in the middle primary school years.  That confirms that she is in the moderate level of intellectual impairment.[170]  He also concluded that she did not have a strong concept of time.[171]

   [169] Exhibit P11, tab 9.

   [170] T265.

   [171] T269.

9. I have taken heed of the warning.  I have also scrutinised her evidence very carefully in the context of all the evidence, including the evidence about her intellectual disability, her limitations (some of which were plain when observing her give evidence) and the associated difficulty for the defence in cross‑examining her.

10. The defence submitted that CD’s evidence was characterised by an absence of detail which makes it more difficult to be satisfied beyond reasonable doubt of the truth.  There is an absence of evidence about where relevant people were at relevant times, how the alleged offending occurred and where the alleged offending occurred (beyond the room in which it occurred).[172] 

    [172] Written outline of closing address for the accused, [40].

11. I agree with the defence submission that there is an absence of detail in relation to CD’s account, but in my view, that does not make what she has said to be untrue, unreliable or doubtful.

12. The defence submitted that there was some peripheral detail that was internally inconsistent.  Initially in her interview, CD said that when she went from the bathroom into her bedroom, neither of them was wearing clothes.  Later she said that the accused took his pants off and she was wearing a shirt.[173] 

    [173] Written outline of closing address for the accused, [42].

13. I do not agree with the defence submission that CD said the accused was not wearing clothes at that time.  During the interview, CD was asked, ‘So when you went into your room were you wearing any clothes’.  She said no.  The next question was ‘And what about Arjay, was Arjay wearing clothes’.  She said ‘no’.[174]  The question about the accused was not prefaced in the same way as the question which asked whether she was wearing clothes.  Given her intellectual disability, I do not consider it can be safely said that she took the preface from the previous question about herself (that is, at the time she went into her room) to continue to apply to the question about the accused.  Her answer about the accused wearing clothes was not necessarily time specific, that is, at the time she went into her room. 

    [174] MFI P2A, page 8.

14. Further, CD told the interviewer that she was not wearing clothes when she went into her room from the bathroom.  I do not consider that is necessarily inconsistent with what she said later in the interview.  She told the interviewer later that when the accused touched her ‘boobs’, she had ‘clothes on the top’.  She was asked what she was wearing.  She said ‘Don’t know.  T-shirt’[175].  She was not asked during the interview whether she put any clothes on when she got into her bedroom.  It may be that she did.  I felt that she was guessing when she said ‘t‑shirt’ during the interview.  Her original answer was ‘don’t know’.  Over a year later in court, it was put to her in cross‑examination that ‘after your bath did you put your pyjamas on’. She agreed.[176]  She was then asked ‘Did you then go to your bedroom’.  She said ‘yes’.  That answer suggests she put her pyjamas on in the bathroom before going to the bedroom.  It might be said that that answer is inconsistent with her telling the interviewer that she was not wearing clothes when she went into her room from the bathroom.  However, whether it is inconsistent might depend on what CD considered to be ‘clothes’.  She might not have considered her pyjamas to be ‘clothes’.  I consider this is a good demonstration of the danger of delving into such minutiae to test reliability and/or credibility.  There is an assumption that the reliability of an account of an alleged traumatic event may be tested by the ability to recall detail and consistency.  The validity of that assumption may depend on the circumstances and the complainant.  Here, I do not consider anything is to be gained by dissecting the minutiae of what CD has said about wearing clothes/pyjamas.  She is not able to communicate a linear narrative of events.  But it does not follow that her allegation (‘he put him willy in there….in my private part’) is unreliable. I think she probably put her pyjamas on at some stage after her bath.

    [175] MFI P2A, page 13.

    [176] MFI P41, page 85.

15. Defence counsel also referred to a leading question asking during the interview that misrepresented back to CD what she had said earlier.[177]  CD did not correct the interviewer but adopted the leading question and elaborated upon it.  That was said to demonstrate a level of suggestibility.[178] 

    [177] Written outline of closing address for the accused, [41].

    [178] T429.

16. In that respect, CD had told the interviewer that the accused took his pants off.  The interviewer asked where CD was when he put his willy.  CD said, ‘in my room’.  She was then asked, ‘whereabouts’.  CD said ‘No.  Don’t know’.  She was asked, ‘Were you on the bed still or were you somewhere else’.  CD replied, ‘somewhere else’.[179] She was not asked what she meant by ‘somewhere else’.

    [179] MFI P2A, pages 8 – 9. 

17. The defence submission is that later in the interview there was a misrepresentation back to CD.  After a break, the interviewer asked ‘So I’ve only got one more question for you, and remember you said to me that Arjay put his willy into your private.  When he did that were you – and you said you were on the bed – were you lying down like you were going to sleep when he did that.  Or were you sitting up.’[180]  It was not a good question, particularly for someone with CD’s intellectual disability.  The question was accurate to the extent that the interviewer repeated that CD had said she was on the bed.   CD had said that.  CD had not previously said that she was on the bed when he put his willy in her private parts.  However, when she was previously asked the question about where she was at that time, she was asked ‘Were you on the bed still [emphasis added] or were you somewhere else’.  I can see how that question could be interpreted in a literal way by CD namely, whether she was still on the bed as she had described (that is, sitting).  For her, ‘somewhere else’ might mean that she had moved from that position, but was still on the bed.

    [180] MFI P2A, pages 24 – 25.

18. If so, then the later question was not overly suggestive.  The question was put in two alternatives – lying down like going to sleep or sitting up.  CD said ‘sleep’.  In CD’s mind, that could be consistent with ‘somewhere else’ in the sense that she was not on the bed still (i.e. sitting up).

19. In terms of CD’s suggestibility, however, I have carefully considered the leading question asked by Ms Goller on Sunday, 9 August 2020.  CD had disclosed that the accused showed her his willy but nothing else was forthcoming, so Ms Goller asked, ‘Did he put it inside you?’.  CD said ‘Yes’.[181]  There is no doubt that that is a leading question on a very important aspect of the allegation.

    [181] T166.

20. The elaboration of the complaint to Ms DM on Monday is important because there is no evidence of leading questions being asked, to the contrary, CD ‘started blurting everything out.’   CD repeated that the accused ‘show me his willy’.  She also said ‘Arjun put willy down there’.  She gestured with her hand between her legs (see [82]).  In my view, CD’s demonstration to convey what happened alleviates concern about Ms Goller’s earlier leading question.  The unprompted gesturing by CD when she spoke to Ms DM tells against her simply adopting the verbal concept in Ms Goller’s leading question (‘Did he put it inside you?’).

21. In her evidence (when CD spoke to the police), CD told the interviewer that she went into her room and sat down on her bed and the accused was already in her room.  She was then asked an open question, ‘And what happened after that’.  CD replied ‘He put him willy in there…in my private part.  Yeh. Yeh.’  She demonstrated. Also, when Ms Goller had asked the leading question on 9 August, she did not say anything about putting it in her ‘private parts’.[182]

    [182] T169.

22. I do not consider that the evidence given by CD (when she spoke to the police) has been the result of any suggestibility on her part.

    Forensic evidence

23. The prosecution case is that the evidence of CD is supported by evidence about the forensic testing of items seized by the police, particularly the underpants (item 2) and the bed underlay (item 11).  The prosecution case is that there was seminal fluid on both of those items and further, that the accused’s DNA was in the area of the seminal fluid on the bed underlay.

24. Ms Lee, Ms Goller and Ms Markham gave evidence about the collection of the items for forensic testing.

25. Mr Luke Volgin gave evidence about the examination of the items at Forensic Science SA (FSSA) including the testing for seminal fluid and DNA testing. He is employed as a forensic scientist in the biology section.  There was no dispute regarding his expertise.

    Different tests for the detection of seminal fluid

26. Mr Volgin gave evidence about three tests used to detect seminal fluid.

27. A Polilight may be used over a surface as a screening test for the presence of seminal fluid.  The light fluoresces where there are proteins that might be present in the fluid.  It is a screening test only.

28. The acid phosphatase test (AP test) detects the acid phosphatase enzyme.  That enzyme is present at high concentrations in semen.  If acid phosphatase is present, a chemical reaction gives the positive test result. The AP enzyme is also present in urine, faecal material and vaginal secretions.  Other non‑biological fluids also have that enzyme.  The AP test is a presumptive test for semen, that is, it is a presumptive indication that a substance may be semen.

29. The P30 test targets an enzyme called prostate specific antigen. That enzyme is produced by the prostate gland.  Extremely high levels of the enzyme are found in semen.  Male urine has also been shown to give a positive result to the P30 test.  It may not be prostate specific because it is present in other biological fluids but at much lower concentrations.  All published studies on the P30 test show that a positive result will only be obtained for semen or male urine.  Other biological fluids have a low concentration of the antigen which will not be detected by the test.

    Forensic evidence: Items 1, 3, 4, 5, 7, 8, 9 and sexual assault kit

30. The evidence from Ms Lee and Ms Goller is that on Sunday, 9 August 2020, they gathered and bagged items for the police, (see [77]-[78].

31. The sheets from CD’s bed (items 4 and 5) and her pyjamas (items 8 and 9) had been washed.  On Friday, 7 August 2020, Ms Lee recovered them from the washing machine.  She hung then outside or in the little area between the houses, leaving them for the next carer to deal with.[183]  She bagged them for the police on Sunday, 9 August.[184]  No forensic evidence was obtained from those items.[185]

    [183] T144 – 145.

    [184] T145 – 146.

    [185] In relation to the sheets, two areas of staining tested negative to the AP test; no samples were taken for DNA analysis.  In relation to the pyjamas, there were no areas of staining located on the black top or black pants; no samples were taken for DNA analysis.

32. A green towel (item 7) was also examined at FSSA.  The only significance to that towel was that Ms Lee found it in the washing machine with the sheets and pyjamas on Friday, 7 August.  No forensic evidence was obtained from the green towel.[186]

    [186] Three areas of staining tested negative to the AP test.  No sperm were observed on two cuttings taken from the towel. It was not submitted for DNA analysis.

33. A sanitary pad (item 3) was one of the items in the bags collected by police.  There is an absence of evidence about how it came to be in one of the bags.  Ms Lee gave evidence that she gave CD a sanitary pad around 10.30 pm on 7 August 2020 and saw it the next morning (see [64]-[65]).  She gave evidence that the police asked where it was, ‘but I think by the time I went in they had already got it out the rubbish bin’.[187]  No witness gave evidence about collecting the sanitary pad from the rubbish bin, or anywhere else.  Item 3 tested negative to a presumptive test for semen and to a presumptive test for blood. A single hair from the inner surface was submitted for DNA analysis with extremely strong support for CD as the source of the DNA.

    [187] T146.

34. A pair of blue pants (item 1) was also submitted for analysis at FSSA.  There is no direct evidence about the bagging of those pants. There were no stains overserved on the pants and so no samples were taken for DNA analysis.

35. The forensic evidence collection kit relating to the examination of CD on 10 August 2022 was examined at FSSA.  The kit contained a whole vaginal swab, low vaginal swab, labial swab, anal swab and a perianal swab.  Sperm were not observed on microscope smears prepared from the swabs and semen was not detected.  From the swabs of the whole vaginal, low vaginal and anal area, the samples contained very low amounts or no male DNA and were not further analysed.

    Forensic evidence: Item 11 (bed underlay)

36. Ms Lee gave evidence that CD’s bedding comprised an underlay, fitted sheet, top sheet and then a quilt.  The sheets and quilt would be washed regularly, once a fortnight.  The underlay was never washed, unless needed, that is, if CD had an accident, which she didn’t.[188]

    [188] T135.

37. Ms Lee could not recall whether the underlay was still on the bed when the police officers were examining the bedroom.[189]  She did not do anything in relation to the collection of the underlay which had been on CD’s bed.[190]

    [189] T147.

    [190] T146.

38. There was no evidence from Ms Goller about the collection of the underlay.

39. Brevet Sergeant Murphy gave evidence that there was no underlay on the bed when he examined the mattress.[191]

    [191] T33.

40. There is no evidence about how the underlay came to be in a bag collected by the police on 9 August 2020.

41. The underlay was examined at Forensic Science SA.  Three areas of staining about halfway down the long side of the underlay fluoresced under a Polilight.  That result then guided the application of the AP test on three separate areas in close proximity (9.01-01, 9.01-02 and 9.01-03) with positive results.  Those three areas were examined using a microscope to look for sperm, but no sperm were observed.

42. The P30 test was then performed on the three areas 01, 02 and 03. The areas labelled 01 and 02 tested positive.  The positive P30 tests for 01 and 02 but the absence of sperm could indicate (1) semen is not present and a false positive reaction has been obtained; (2) semen is present which has originated from a vasectomised or azoospermic male; or (3) semen is present which was deposited on a bedsheet covering the underlay, and only the seminal fluid has soaked through the cloth layers.[192]

    [192] Exhibit P17.

43. The cutting area labelled 01 was submitted for DNA testing.  A mixed DNA profile was obtained from three contributors.  Assuming CD was a contributor, there is extremely strong support for the accused being a contributor to that stain.

44. The contribution of DNA from the main contributor was 64% and was assumed to have been from CD.  Another contributor provided a contribution of 31% and it was that component which aligned with the DNA profile of the accused. A third trace male component was present at 4%.  If the accused’s DNA is present in that stain, then he has donated less DNA to the sample than the complainant but more DNA than the second male individual.  The major contribution by the complainant would be expected because it was her bedding.

1. I have not used Ms Lee’s evidence about CD’s distress as independent supportive evidence of guilt.  I do not consider the distress was fabricated but I also do not consider that the distress is reasonably explicable only on the basis of the sexual assault having occurred.  Ms Markham described CD as very labile in her demeanour, which was consistent with her intellectual disability.   In those circumstances, I also do not consider the distress evidence can be used for the purpose of showing consistent behaviour and therefore help in assessing the credibility of CD’s evidence. In my view, the evidence about her distress when Ms Lee arrived at around 6.20 pm on 7 August is neutral.

2. I have carefully considered the state of the evidence about CD ‘bleeding’.

3. CD’s evidence is that she was bleeding before the alleged rape.  When interviewed by the police, CD said that she was there to talk about ‘somebody being in my room’.  The interviewer said ‘Ok.  Alright.  So I wasn’t there when somebody was in your room and I need to know everything that happened when that person was in your room…So tell me everything that happened when that…’.  CD said, ‘I was bleeding down there’.[226]

   [226] MFI P2A, page 4.

4. Later in the interview, CD told the interviewer that the accused ‘put him willy in there…in my private part’.  The interviewer said, ‘So tell me more about how [the accused] put his willy into your private part’.  CD said, ‘I bleeding’.  She was asked, ‘Were you bleeding before he put his willy into there?’.  She said ‘yes’.  She was asked ‘what was that from’.  CD said ‘I don’t know.  My periods’.  The interviewer said, ‘You had your period’.  CD said ‘Mmm…yeh …uintelligible…’.[227]

   [227] MFI P2A, page 8.

5. I consider it to be very unlikely that CD had a regular menstrual period on 7 August.  Ms DM gave evidence that CD was 12 when her periods started and did not understand what periods were.  From the age of 14, an Implanon has been in her arm because CD did not like the mess or the belly pain.[228]  An Implanon is a contraceptive progesterone only implant that is usually placed in the left arm and is effective for about 3 years for contraception but is often used to stop heavy bleeding and stop periods altogether, if possible.[229]  Ms DM gave evidence that the Implanon worked, ‘It slowed it right down.  She’d have just the odd spotting now and then.  She’d still get distressed with that, but it was a lot less than having the whole period’.[230]

   [228] T183.

   [229] T226.

   [230] T183.

6. Dr Todd (CD’s general practitioner since 2009) explained that CD has a moderate to severe intellectual disability, which impacts her ability to assess situations and understanding of her medical conditions.  When CD started as his patient, she already had an Implanon in place.  She was also on the pill ‘because it was not ideal for her to be bleeding on and off and it was quite distressing for her’.[231]  She did not take the seven sugar pills in the cycle.  She took the hormonal pills continuously to stop bleeding.

   [231] T227.

7. Ms Allen gave evidence that she had known CD for three to four years and had never known her to get her period or have bleeding of any description.[232]

   [232] T289.

8. Mr Cunningham gave evidence that in the time he had contact with CD, he had never known CD to menstruate.[233] 

   [233] T87.

9. Ms Lee gave evidence that she had never known CD to menstruate.  CD did not like the idea and hated anything like that happening.[234]

   [234] T129.

10. I am satisfied that CD did not have a regular menstrual period on 7 August 2020.

11. Two other possibilities are that there was menstrual bleeding because of an expired Implanon or bleeding associated with a uterine fibroid.

12. Dr Todd gave evidence that CD’s Implanon was due for replacement in May 2020 but was not replaced because of the pandemic.  He did not consider replacement to be urgent because CD was not using it for contraception purposes, she did not have excessive bleeding and she was also on the contraceptive pill to stop her periods.  If the Implanon is not replaced after three years, ‘generally the bleeding issues are the main problem, so erratic or heavy bleeding outside of what they would normally have with it in place’.[235]  He expressed the opinion that if CD had bleeding in August 2020, then one explanation might be that the Implanon was needing to be replaced.

    [235] T226 – 227.

13. Dr Todd also gave evidence that in November 2020, CD had various tests, including an ultrasound which showed a large uterine fibroid (a benign tumour of the muscular wall of the uterus).  Generally, people will get symptoms, being pelvic pain, back pain, heavy menstrual cycle or erratic or dysfunctional uterine bleeding.  The fibroid may also be asymptomatic.  It is likely that CD’s fibroid had been there for years.[236] 

    [236] T228 – 229.

14. Dr Todd did not give evidence about the nature of the bleeding which might occur because of an expired Implanon or a fibroid, that is, whether it would be light spotting, heavy, come on quickly, or how long it might last.  There was no evidence about whether a fibroid (which may have been present and asymptomatic for years) can spontaneously bleed or whether it needs to be triggered by something; and if it does bleed, to what extent. 

15. If CD had been aware that she was bleeding when she was out with Ms Allen on 7 August, I am certain that she would have reacted in a way that made Ms Allen aware.  Ms Allen gave evidence that CD did go to the toilet when they were out.[237]  At 3.00 pm, when Ms Allen returned CD back to the facility after their day out, CD was normal, there was nothing unusual.  If CD had vaginal bleeding before 3.00 pm on 7 August, then I consider it must have been so light that CD had not noticed it by that stage.[238]   Alternatively, the bleeding started sometime after 3.00 pm.

    [237] T291.

    [238] I note that the underpants tested at FSSA (item 2) tested negative to the presumptive test for blood.  I cannot place any weight on that result for item 2 because the chain of evidence in relation to item 2 is questionable. They may be the underpants she was wearing that day of 7 August but they may not be.

16. Dinner was usually at around 5.00 pm.  In cross‑examination, CD agreed with the suggestion that she had a bath after dinner then put on her pyjamas. 

17. By 6.20 pm, her pyjamas, sheets and towels were in the washing machine.  

18. At around 10.30 pm, there was some blood in the toilet and in CD’s knickers which was not like period bleeding but like a discharge colour.  Ms Lee gave her a pad.  The pad that she may have been wearing from 10.30 pm tested negative for blood.  By the morning of 8 August 2020, there was no need for a pad.[239]  When CD was at Yarrow Place on Monday, 10 August, there was no sign that CD was menstruating, and she was not wearing a sanitary pad.

    [239] T145.

19. If there was no (or very light) bleeding at 3.00 pm then at some stage before 6.20 pm, the scenario to be considered is that there was blood on CD’s pyjamas, sheets, towel and/or hand towel which required them all to be washed. 

20. On one scenario, CD had a bath after dinner without noticing any bleeding.  She then put on her pyjamas and went to bed.  She then bled onto her pyjamas and sheets which required the accused to put those items in the washing machine.  She went back to the bathroom (perhaps had another bath) and got blood on the towels.  The accused put those items in the washing machine.  CD changed into different pyjamas. 

21. That scenario involves CD changing into her pyjamas after dinner without noticing any bleeding but, once in bed, there is bleeding sufficient to not only leave blood on her pyjamas but also on her sheets.   According to the accused, her sheets were ‘wet’.  Further, after her bath (required because she was bleeding), she puts on a different pair of pyjamas but the accused does not provide her with a sanitary pad.  Instead, CD was wearing different pyjamas at 6.20 pm, went back to bed without a pad and the need for a pad was not raised until about 10.30 pm when CD went to the toilet.  There is no suggestion that there was then a need to wash her different pyjamas or sheets at about 10.30 pm. 

22. On another scenario, CD had a bath after dinner because she noticed she was bleeding.  On that scenario, it is curious that there were no underpants in the washing machine because, as a matter of common sense, her underpants were a likely place for her to have noticed blood in order to then need the bath.  This scenario does not account for how she got blood on her pyjamas and sheets unless after the bath (which had been required because she was bleeding), she got into her pyjamas and into bed (the accused not giving her a sanitary pad) then bled on the pyjamas and sheets.  She then got changed into different pyjamas (perhaps she had another bath first) but the accused still did not give her a sanitary pad. 

23. I consider both scenarios to be unlikely, however, it is necessary to consider the evidence given by AB on this aspect.  She told the police that she was watching TV when CD came home.  When CD got home she was ‘bleeding out’ and the accused told her to have a shower or a bath.  Around that time, the accused told AB to leave.  The relevant part of the interview is as follows:

    AB: [CD], she said to the bloke um when she got home she was bleeding out, down below and the bloke said um, well you’re gonna have a shower or a bath.  And I was gonna keep an eye on [CD] and that.  And then, but then he said to me to leave.  And then Friday night, I was in there watching TV and that, ‘cos it was on and then he just went in, when [CD] was sitting in the nud…she never had nothing on, and then when she went to the toilet and that, then he, he come out, come out of the office and he went into the toilet.  Went in the toilet where [AB] was in the toilet and that.

    I:     Mmm..and then what happened.

    AB: I don’t know what happened then he just went, he just – um I was sitting in the lounge and I can see him go into the, went into the toilet.  And I heard [CD] say ‘hey’ like that, to him. Uh hum. Like that.

    I:     And when [CD] was in the toilet did she have her clothes on.

    AB:No she didn’t have her clothes on, she was, even in the bath she was um, in the bath she was naked. And when he, well she was using the toilet all the time, she was naked.  Naked and that.  Yep.  Didn’t, I gotta ask you, do me and [CD] have to go to court with, when, when..

    …..

    I:     …So you said that the bloke told you to leave.

    AB: Yeh, to leave and that I was gonna get, I was gonna – like – when he touched my leg I was gonna stay with [CD] and that, if she was safe and that, in the bath.  He didn’t…he said to me, oh you better go, better go and leave.  Told me to leave like that hey.

    I:     Mmm.  And then what – what happened next after he told you to leave.

    AB:I just went back to my unit….Went back.  Yep. Yeh.  ‘Cos I didn’t want to – I didn’t want nothing to happen to [CD] or anything, with that umm…and in the bath or anything, aye.[240]

    [240] MFI P5A, page 8 – 9.

24. Later in the interview, AB was asked about this topic again.  She said that after CD told the accused she was ‘bleeding down below’, CD got changed into her pyjamas and got blood on them, the accused said to have a shower or bath, he stripped her bed and then AB decided she had better go.  The relevant part of the interview is as follows:

    I:So tell me more about when you – when [CD] came home and you were watching TV…And [CD] came in and said she was bleeding and…

    AB:Yeh, ‘cos um [CD] had come home and that I was inside watching TV and then [CD] said to the bloke, oh what her activity she goes to?

    …

    ABI can’t be when I, when [CD] come home on Friday, I was in the lounge, in the lounge and watching TV and then, she said to that bloke, [CD] said she was bleeding down below.  And then after that [CD] got changed in her pyjamas, and she was, had blood on that…she didn’t…that one, he said to her ‘either have a shower or bath’.  Then he, then he – then he stripped [CD’s] bed for her and I didn’t know what…when I was like…when [CD] was and that , I said I better go and that, ‘cos I just stayed in my unit, I did not know what happened to [CD] then.

    …

    I:     Do you remember what you were watching on TV when [CD] got home.

    AB:   I was watching Big Down Die, that doctor’s thing.

    ….

    I:     And you said that you heard [CD] say something…what..

    AB: Yep, I, when I was watching TV on Friday night.  I heard [CD] go ‘Oii’ or something, screaming like that.  Aye.  Am I gonna be in trouble with that?

25. In the first account, AB made no mention of CD changing into pyjamas which became bloodied before CD had a bath nor did she mention the accused stripping the bed.   She said that the accused told her to leave, but in the second account, she decided to leave.  In her first account, it sounds like she was told to leave around the time that CD was in the toilet (although there is reference to CD being naked in the bath).  AB said she was thinking she should stay because of what happened to her (and gave the untrue version of the indecent assault alleged against her), but in her second account, she decided to leave, which does not fit well with the concern for CD’s safety which she expressed during her first account.  In the second account, AB says that CD told the accused she was bleeding but then CD changed into her pyjamas (rather than have a bath).  In the second account, she could not have seen the accused strip CD’s bed from the lounge room.  I am left wondering how much of the second account that AB saw, rather than was surmising based on subsequent knowledge. 

26. On any scenario, if the accused washed the pyjamas and sheets because CD bled onto them, then why did he not say so to Ms Lee.  Instead, he told Ms Lee that he thought CD must have been rubbing herself too much, then demonstrated by putting his hand down and rubbing back and forward on his groin area.  That explanation for having to wash the sheets is not an explanation at all.  The connection between ‘rubbing herself too much’ and needing to change the sheets is far from clear. As a matter of common sense, it would take considerable effort for a female to rub the groin area to the degree that it caused bleeding (or any other discharge) which then required pyjamas and bed sheets to be washed.  When CD was examined on Monday, 10 August 2020, there were two very small linear abrasions on the left side of the opening of the vagina (which were tender and bleeding) as well as some erythema around the perianal area.  I do not consider that two tiny linear abrasions could produce blood sufficient to stain the pyjamas and the sheets.  The linear abrasions and erythema are a neutral finding in regard to the prosecution’s proof of an act of sexual intercourse.[241]

    [241] Written outline of closing address for the accused, [50] – [51].

27. The accused’s explanation for washing the sheets is odd because none of the carers had ever seen CD do that, namely, rub herself.[242] 

    [242] Ms Lee (T131); Mr Cunningham (T87); Ms Allen (T290 - 291); Mr Van Rosen (T221); Mr Tan (T218); Ms Goller (T169).

28. Further, Ms Lee agreed in cross‑examination that the accused did not say that he in fact saw her rub herself, which makes the explanation he offered even stranger.  It is an unusual thing to suggest if it is not something that he in fact saw.   Further, his explanation does not make sense if the ‘rubbing herself too much’ is an explanation for blood (or some other discharge) on the sheets. 

29. I do not consider the explanation the accused gave to Ms Lee for washing the sheets has any credibility.  In other words, he did not give a credible explanation for why he put those items in the washing machine.  I have not used what he said as a lie which he told out of a consciousness of guilt.

30. Ms Lee asked the accused whether it was ‘wee or blood’.  There is no evidence that the accused responded to that issue.  He said something like ‘I think it was the issue of her rubbing herself’.[243] 

    [243] T149 – 150.

31. If CD wet the bed that afternoon, that does not explain why the towels needed to be washed.  It is also not CD’s evidence that she wet herself or wet the bed that evening. 

32. Dr Todd gave evidence that in November 2020, CD had an appointment with her carers in relation to a potential issue of incontinence.  It had never been an issue before.  The tests showed no urinary tract infection.  The uterine fibroid can provide an explanation for incontinence, depending on size and whether it was placing pressure on the collecting system.[244]

    [244] T228.

33. Ms Lee gave evidence that CD was not incontinent.[245] Ms Allen gave evidence that in her experience, CD was not incontinent.[246]. Ms DM gave evidence that CD had ‘never been incontinent at my house.  She never wore pads and she doesn’t wear them now’.[247]  Ms DM gave some lengthy hearsay evidence which was difficult to follow and was not pursued by the prosecutor.  She was then asked ‘All the way up to August of 2020 you never knew her to have an issue with incontinence’ and she answered ‘No’.  

    [245] T128.

    [246] T289.

    [247] T181.

34. I do not consider that CD wet her bed that afternoon. 

35. In the 24 Hour report, the accused recorded the following about CD:  ‘Community outing with AHC support, took money for lunch, happy at home; retired to bed after tea’.[248]  He made no mention of washing CD’s pyjamas, sheets and towels, nor of any event such as bleeding or wetting the bed. 

    [248] Exhibit P11, Tab 6.

36. After carefully considering all the evidence, I find that it is possible that CD had some bleeding late that afternoon.  She did have a bath.  It does not follow, however, that the accused put the various items in the washing machine because CD (innocently) bled on them.  On the whole of the evidence, I have excluded that as a reasonable possibility.   I have also excluded as a reasonable possibility that she wet the bed that afternoon.

37. Dr Todd gave evidence that bleeding can be caused by sexual intercourse.   Also, a large fibroid can cause more bleeding and can be quite common after intercourse.[249]  It may be that CD bled after the sexual intercourse.  Or it may be that she did not.  In any event, washing the items is the best way to remove any possible evidence.

    [249] T229.

38. I consider that the evidence of post offence conduct is an item of circumstantial evidence which is more consistent with the actions of a guilty man than that of an innocent one. 

    Count 2

39. Having considered all the relevant evidence (including her cognitive impairment and limited capacities), I am satisfied that CD is a credible and reliable witness in regard to her allegation that the accused ‘put his willy in her private parts’.  I accept her evidence about that beyond reasonable doubt.  I am satisfied beyond reasonable doubt that there was an act of penile/vaginal intercourse in her bedroom that afternoon.  I do not know the duration of the intercourse nor if the accused ejaculated.  There is also circumstantial evidence that the accused washed CD’s pyjamas, sheets and towels that afternoon.  His explanation for so doing lacks credibility.  I find the first element of the offence proved.

40. In relation to the second element, Dr Broomhall (forensic psychologist) interviewed CD on 18 August 2021.  He expressed the opinion that CD was at the moderate level of intellectual impairment[250] and that, by reason of her intellectual disability, CD was unable to understand the nature or consequences of sexual intercourse.  She could not engage freely and voluntarily with behaviour of a sexualised nature.[251]  His opinions were not challenged.

    [250] T266.

    [251] T275 – 276.

41. I am satisfied beyond reasonable doubt that CD did not consent to the act of sexual intercourse.

42. I am satisfied beyond reasonable doubt that the accused knew she was not consenting.  He knew she was a resident of the facility.  As her responsible carer that day, he must have been aware of the level of care she required and the reason for that level of care, namely, that she had very limited intellectual capacity.

1. I find the accused guilty of the offence of rape.

   Count 3

2. There is no need for consideration of the alternative to count 2.

   Count 4

3. I am satisfied beyond reasonable doubt that the accused deliberately touched CD’s breast.  I accept her evidence.  I have used Mr Clarke’s evidence as indicated (see [211]-[212]).  I am satisfied that the act occurred in circumstances of sexual indecency.

4. I am satisfied beyond reasonable doubt that CD did not consent to that act.

5. I am satisfied beyond reasonable doubt that the accused knew that she was not consenting.  I am satisfied beyond reasonable doubt that he committed the offence knowing that CD was at the time of the offence in a position of particular vulnerability because of cognitive impairment.

   Verdicts

   Count 1:    Not Guilty
   Count 2:    Guilty
   Count 3:    Not considered (alternative to count 2)

   Count 4:    Guilty