R v KARDO - [2020] SADC 167

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KARDO
Criminal Trial by Judge Alone
[2020] SADC 167
Reasons for the Verdicts of Her Honour Judge Chapman
30 November 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - GENERALLY
The accused is charged with sexually assaulting a woman in the spa at the Adelaide Aquatic Centre in September 2018. It is alleged he digitally penetrated her then touched her breast. The woman had been asleep in the spa but woke to feel the sexual assaults. There was no dispute the accused was the man next to the woman as seen on the CCTV. The defence case was that the alleged acts did not occur.
Held: The evidence established beyond reasonable doubt that the two acts did occur. Guilty of rape (count 1) and indecent assault (count 2).
Criminal Law Consolidation Act 1935 s 56, referred to.

R v KARDO
[2020] SADC 167

The accused is charged with one count of rape contrary to section 48(1) of the Criminal Law Consolidation Act 1935 (the Act) (count 1) and one count of indecent assault contrary to section 56 of the Act (count 2).
It is alleged the accused committed the offences on Sunday, 23 September 2018 at the Adelaide Aquatic Centre. The accused and complainant were unknown to each other at the time. When they were both in the spa at the Aquatic Centre, it is alleged that the accused inserted his fingers into the complainant’s vagina (count 1) and put his hand on her breast (count 2).
The prosecution called eight witnesses – the complainant, three lifeguards from the Aquatic Centre, two police officers, a forensic scientist (DNA) and the investigating officer.
The accused did not give or call evidence.
The elements of the offences
In order to prove the offence of rape, the prosecution must prove the following elements beyond reasonable doubt:
1.That there was an act of sexual intercourse between the accused and the complainant.
2.The complainant did not consent to the act of sexual intercourse.
3.At the time of the act, the accused knew the complainant was not consenting or was recklessly indifferent as to her consent.
In order to prove the offence of indecent assault, the prosecution must prove the following elements beyond reasonable doubt:
1.The accused intentionally assaulted the complainant.
2.The assault was accompanied by, or occurred in, circumstances of indecency which must involve a sexual connotation.
There is no dispute that the alleged facts would make out the elements of each of the offences. The issue in this case is whether the prosecution has proved beyond reasonable doubt that the act the subject of each count in fact occurred.
The defence case is that neither of the acts occurred.
Proof
The prosecution has the burden of proving the offences. There is no onus on the accused to prove anything. He has the presumption of innocence in his favour. The prosecution must prove each element of each 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 accused exercised his legal right to decline to give or call evidence. I do not draw any inference adverse to him, or the case he puts forward, from his exercise of that right. His silence cannot be used to fill any gaps in the prosecution case. He is not required to prove anything.
The evidence
The prosecution case comprised evidence from:
(i) the complainant about what happened in the spa at the Aquatic Centre;
(ii)three lifeguards regarding the first complaint, the subsequent elaboration and the complainant’s distress;
(iii)CCTV footage from the Aquatic Centre showing the arrivals of the complainant and then the accused at the Aquatic Centre; the complainant and the accused in the spa; and the accused leaving the spa and the Aquatic Centre;
(iv)the police who arrested the accused that evening and took fingernail scrapings from his hands; and
(v)a forensic scientist who expressed the opinion that there is strong support for the complainant being a contributor to the mixture of DNA extracted from the fingernail scrapings of the accused’s left hand.
There was no dispute that, at all relevant times, the accused was the man in the spa next to the complainant.
The complainant’s evidence
The complainant gave evidence that she was tired on the day of the alleged offending. She had been at work the day before from 6.00 am to around 5.00 pm. She worked as a cook at a café. After work, she had gone home, had a nap for about two hours and then attended a family celebration where she drank alcohol but did not eat much. She drank about three glasses of white wine per hour from 8.30 pm to 2.00 am. She stopped drinking because she had work that morning. She was intoxicated but had no impaired memory regarding the evening. She left the celebration at about 4.00 am. She got home soon after and slept until about 5.45 am when she got up to go to work. She was tired, hungover and feeling a bit sick.
She worked from 6.00 am until 12.30 pm. She went home then decided to go to the Aquatic Centre to relax. Her partner dropped her at the front entrance of the Aquatic Centre. The CCTV footage from the Aquatic Centre shows her leaving her partner’s car at 2.53 pm and approaching the counter at the main entrance of the Aquatic Centre at 2.55 pm.
The CCTV footage shows the accused arriving in his taxi at 2.59 pm and approaching the counter at the main entrance at 3.04 pm.
The complainant gave evidence she changed into her partner’s black shorts and t‑shirt for swimming. The shorts were a bit big, above knee length, a bit stretchy and neither tight nor loose around the leg and had no fastening around the waist. She was not wearing bathers or underwear underneath the shorts. She wore a bra underneath the t‑shirt.
She swam in one of the pools for five minutes before she went to the spa. There were four to seven people in the spa at that time, none of whom she knew. She started relaxing in the corner of the spa then fell asleep. She was facing outwards from the spa with her head on her forearms which were resting on the tiled ledge. The remainder of her body was floating off in the water. She thinks she fell into a deep sleep after less than 10 minutes. She woke up when the spa jets came back on. She estimated being in the spa for about 20 minutes to half an hour.
She left the spa, went to the lockers and messaged her partner to check in with him. She got a drink. She felt good and was getting relaxed.
She gave evidence she returned to the same spot in the same spa. She did not talk to anyone, nor did they talk to her. She put herself back in the same position, with her forearms on the ledge and her head on her forearms. The rest of her body was floating out straight in the water. She was feeling relaxed and really tired. After about five minutes, she fell into a deep sleep.
She was next aware of waking up with an uncomfortable feeling of fingers in her vagina. The hand was up the left leg of her shorts. Her lower left leg was held down between someone’s ankles and her upper left leg was in someone’s lap. It felt like there was an erect penis touching her upper left leg. Her right leg was floating free.
When she felt the fingers in her vagina, she was shocked and ‘absolutely frozen’. She did not physically react, but was thinking many things.
She estimated the fingers were in her vagina for ‘not long, three seconds, not even’. The fingers were removed. The hand came out of the leg of her shorts, then slid up under her t‑shirt and briefly grabbed her left breast over her bra. She described it as a very quick ‘grope’. She then moved, by lifting her head up. She recalled looking at the man briefly, but did not speak to him. She then walked out and went straight to a lifeguard (Mr Donato-Edwards).
Complaint and distress
The complainant gave evidence she told Mr Donato-Edwards, ‘Oh my god that guy (she was pointing at him), I just woke up and his hands were down my pants’. She kept on saying ‘He’s still in there’. She gave evidence that she was frantic and her heart was going crazy. The lifeguard straightaway got on to his walkie-talkie then a few minutes later another lifeguard arrived. She was taken to the lifeguard tower office, shown security footage and she pointed the man out. She was crying.
Mr Donato-Edwards gave evidence that he was approached by the complainant at about 5.25 pm. She appeared incredibly distressed, was on the verge of tears, and was muttering and stuttering. She could not quite get out the words that she wanted to say. He had to keep asking her if there was something wrong and to explain what the issue was. In the muttering, he heard her say something along the lines of ‘someone has put their hands down my pants’. She pointed toward the spa pool. He believed she said the words ‘spa’ and ‘someone touched me’. She said she had been in the spa sleeping. He told her that they would call the police and call the supervisors down. He then radioed and two lifeguards, Mr Bessant and Mr Earl arrived within seconds.
Mr Earl was Mr Donato-Edwards’ immediate supervisor. He gave evidence that when he arrived, the complainant said she was in the north spa and fell asleep and she woke up and someone had their hand in her pants. He described her as very distraught and very upset. She was teary, very emotional and looking around a lot. She looked devastated. He gave a second radio call to Mr Bessant, his senior. Mr Bessant arrived and took the complainant to the poolside office. After a little while, Mr Bessant asked Mr Earl to call the police, which he did at 5.23 pm. Whilst they were waiting for the police, the complainant told Mr Earl she was digitally penetrated. He described her as devastated and kept saying the same things over again about the incident. She kept saying she had had a hard day, the family said to go and have a day off, she fell asleep and woke up with someone’s hands in her pants.
Mr Bessant gave evidence that he received a radio call from Mr Earl. He came down from the poolside office area and spoke to the complainant. She was visually distressed, upset, crying and a little bit shaken up. He then accompanied her to the lifeguard office. He showed her the CCTV footage of the spa area. She identified herself and pointed out a male.
Mr Bessant left the office and went to see if the male was still in the spa area. He was not. He then walked around the Aquatic Centre to try and find him. He went into the north change rooms and saw a male matching the description in the shower. He was wearing bathers or shorts and was rinsing off and washing himself. The male was in there for a few minutes. Mr Bessant went to the front desk and waited for the male to exit. He walked behind him with the intention of seeing if he was going to the car park. He lost sight of the man in the car park area. The police arrived.
CCTV footage of the spa
The footage starts at 4.40.06 pm. The complainant appears fast asleep in a corner of the spa. There are 11 other people in the spa, including the accused. The spa is a rectangle. The people in the spa are spaced along the two long sides of the spa. Both the accused and the complainant are on the longer side of the spa closest to the camera.
The accused is looking outward from the spa toward the camera. He is almost a length of two tiles away from the complainant’s left elbow which is on the edge of the spa. Her head is resting on her bent left elbow. The accused is standing up and then kneels back down on what must be the ledge which is submerged under the water.
The jets stop at 4.42.26 pm. This appears to wake the complainant. She moves around in the water around that corner. The accused watches her briefly. By this stage he is resting his forearms on the edge of the spa.
The jets come back on at about 4.43.32 pm.
By 4.45.58 pm, the complainant is back in the corner of the spa with her arms folded on the edge of the spa. By 4.47 pm she appears to be asleep. At that time, the accused has moved so that he is now facing into the spa. There are five people opposite him. There are four people to his right.
At 4.47.35 pm, the complainant moves by spreading her arms out on the side of the spa. Her eyes appear to be closed.
At 4.48.47 pm, two people leave the spa. There are three people opposite the accused.
At 4.49.34 pm, another person comes into the spa making four people opposite the accused. The accused appears to be sitting and is facing into the spa. His left shoulder appears to be almost two tiles away from the complainant’s left elbow.
At 4.52.35 pm, the accused appears to move forward slightly and then when he sits or lies back he is closer to the complainant. There are a lot of bubbles between him and the complainant. Her body is at an angle out from the corner of the spa, not parallel with the short side of the spa.
At 4.54.24 pm, the accused moves slightly forward again. When he rests back he is closer to the complainant. There is a significant distance between the accused and the man to his right.
At 4.55.14 pm, the accused moves again. He places his right arm out of the spa so that his elbow is bent. This causes the left side of his body to appear closer again to the complainant’s body. Having moved closer to her, he then removes his right arm and places it again under the water. There are almost four tiles of space between him and the man to his right.
By 4.56.02 pm, there is very little distance between the accused and the complainant.
At 4.56.31 pm, one of the men opposite the accused moves into the space to the right of the accused.
At 4.56.34 pm, the accused is so close to the complainant that, in my assessment, he would be able to touch the complainant underneath the water.
At 4.57.35 pm, the accused moves even closer to the complainant.
At 4.58.13 pm, the accused rests back against the edge of the spa. There is now less than one tile between the complainant’s bent left elbow and the accused’s left shoulder.
At 4.58.17 pm, the accused turns to look at the complainant and move slightly away from her. He is still so close to her that he is in touching distance of her under the water. Her shorts are billowing over where the accused’s left leg must be. The angle of her body is such that it appears that her legs must be diagonally over his left leg.
By 5.00.48 pm, the accused has slightly turned his back on the complainant and appears to have encroached further upon her space.
At 5.01.43 pm, the accused has moved slightly away from the complainant. This seems to coincide with a man entering the spa who takes up a position on the short side of the spa just to the left of the complainant. That person leaves the spa at 5.03.57 pm with two others. The accused then shuffles closer to the complainant.
The jets stop at 5.04.31 pm and the accused moves away from the complainant. The angle of her body is now more visible. It is evident that she is on a 45‑degree angle coming out from the corner of the spa.
At 5.04.39 pm, the accused turns to face out from the spa. His right elbow is bent. It is less than a tile away from the complainant’s bent left elbow.
At 5.04.51 pm, the accused moves slightly away from her. The jets are still off.
At 5.05.28 pm, the jets come back on. The accused’s hands are out of the water.
At 5.06.10 pm, the accused turns around to face into the spa. Initially both of his elbows are bent up on the outside of the spa. Soon his left arm is back under the water.
By 5.06.24 pm, he has moved closer again to the complainant. There is very little distance between them.
At 5.07.04 pm, the accused appears to move forward slightly. He must be extremely close to the complainant’s body under the water.
At 5.07.43 pm, he moves even closer. He then turns slightly towards her.
At 5.09.01 pm, he has his back turned to the complainant, but his left arm would be very close to the complainant’s body under the water.
By 5.09.14 pm, both of his arms are under the water. At 5.09.29 pm, he is again in the same position with his back slightly angled away from the complainant, but his left arm must be very close to her body under the water.
At 5.11.33 pm, there is less than half a tile in distance between the complainant’s left arm and the accused’s left shoulder. His left arm is under the water. His right elbow is bent up on the side of the spa. He is within touching distance of the complainant’s body.
By 5.12.05 pm, his left hand is clasped with his right hand in front of his body. That changes at 5.12.39 pm. His left arm is now hanging down his left side very close to the complainant’s body. His left hand appears to come out of the water again at 5.12.52 pm, back under the water by 5.13.09 pm. It comes out of the water again at 5.13.20 pm. The accused touches his head with his left hand. Another man enters the spa.
By 5.13.43 pm, the accused’s left arm appears to be back under the water close to the complainant.
At 5.13.55 pm, his left hand is out of the water and touching his face. He appears to rest his arm back in the water at 5.14.19 pm. There is less than a tile between the two of them.
At 5.15 pm, the accused’s left hand is again out of the water and touching his face. His arm appears to be back underneath the water by 5.15.29 pm. The complainant moves her hands.
At 5.16.07 pm, the accused appears closer to the complainant. Then, at 5.16.23 pm, even closer. The man next to him has his back to the accused. The accused rests back at 5.16.39 pm. His two hands are out of the water and on his face at 5.16.42 pm. They remain out of the water until 5.16.55 pm. His hands are then back under the water.
By 5.17 pm, the accused has turned his back on the complainant and his left hand is out of the water on his face. His left arm then goes back under the water. He turns to rest his back against the spa. The complainant has not moved. At 5.17.09 pm, his left arm comes out of the water and rests on the ledge of the spa. Around 5.17.15 pm, he appears to deliberately move so that his forearm is touching the complainant’s arm on the ledge of the spa. She has not moved. By 5.17.37 pm, he has moved to face out from the spa and has both arms folded on the ledge of the spa. His bent right arm is touching the complainant’s bent left arm. He is looking at her. At 5.17.42 pm, her left hand moves slightly. His left arm reaches for his water bottle at 5.17.45 pm. His bent right arm has not moved.
At 5.17.57 pm, the complainant raises her head. She moves her left hand to her face. The accused is watching her. He leaves his bent right elbow touching her bent right arm. The complainant moves away from the corner. She looks at the accused. At 5.18.25 pm, the accused appears to speak to her. By 5.18.40 pm, she watches the accused as she stands and leaves the spa. The accused turns and watches her leave. He moves into her corner. At 5.19.04 pm, she is out of the spa and appears to stretch her t‑shirt and the legs of her shorts downwards. The accused continues to watch her until 5.19.32 pm. He turns to look in her direction again at 5.19.45 pm. He moves to leave the spa at 5.19.52 pm.
At 5.20.36 pm, the accused can be seen walking around the dive pool carrying his water bottle in his left hand and his backpack in his right hand. He is walking at a reasonable pace. When he reaches the main pool at about 5.21 pm, he stops to put his shoes on and get his towel out of his backpack. He puts the towel over his head so that the sides of the towel fall down the sides of his face past his shoulders. He then walks away with the towel in that position at 5.22 pm.

At 5.31.46 pm, he walks toward the reception area and leaves the Aquatic Centre. He has his backpack on his shoulders.
Arrest of the accused
Detective Djekic gave evidence that he went to the accused’s address at 10.43 pm on Sunday, 23 September 2018. The accused was present with his wife and two others believed to be his daughter and son. The accused was taken to the police car where individual bags were securely taped around his wrists to preserve evidence. The accused exercised his right to speak to a legal representative, then declined to answer questions. I do not draw any adverse inference against him for exercising his legal rights.
DNA evidence
Brevet Sergeant Goodwin gave evidence that he took samples from the accused’s left hand fingernails at about 4.00 am on 24 September 2018. To do that, he removed the bag that had been taped around the accused’s left hand. He swabbed just under the fingernails themselves. The swab that is used is thin enough to get in under the fingernails. It would only pick up material in the very short area of the finger on the way through to under the fingernail.
Ms Harkin (a forensic scientist employed at Forensic Science SA) gave evidence about the DNA results from the swab of the accused’s left hand fingernails. The DNA analysis revealed a mixed DNA profile from three contributors. It is assumed that one of those three contributors is the accused, given that the swab comes from his own left hand fingernails. There was also information in the DNA result consistent with the accused’s DNA profile. She looked at the probability of obtaining that mixed DNA profile if the complainant was a contributor and the probability of obtaining that profile if the complainant was not a contributor. There is a statistical weighting of 110 in favour of the hypothesis that the complainant was a contributor. In her opinion, the DNA profile obtained is 110 times more likely to be obtained if the accused, the complainant and another person is a source of the DNA rather than the accused and two other unknown persons. That result can be expressed as strong support in favour of inclusion of the complainant.
The DNA analysis of the swabs of the right hand fingernails revealed a mixed DNA profile from three contributors including the accused. The statistical weighting calculated for that comparison was 22 in favour of exclusion of the complainant.
The swabs of the left hand and right hand contained insufficient DNA and were not analysed.
In cross-examination, Ms Harkin agreed that the statistical weighting of 110 was a lot smaller than the ratios that can occur with numbers in the billions. She agreed that if the swab touched the top of the finger then potentially the cells were coming from there. She agreed that sweat is a very good source of DNA. If somebody has touched a surface where somebody has deposited their cells, whether it is sweat or contact DNA, there is an ability to transfer those cells onto that other person who touches that surface. She has not tested whether the cells found under the accused’s fingers were vaginal cells. They do not provide that testing at Forensic Science SA. She agreed there could be cells from many individuals in a spa.
In re-examination, she stated that she would not expect cells moving through water in a spa to account for the profile obtained from the left hand fingernails. If that had been the case she would have expected cells from many individuals in that mixed DNA profile. She also stated that the amount of DNA that would be recovered would be very low to the point that it would not be able to be detected.
Counsel addresses
For the prosecution, Ms Matteo submitted that the complainant was clear, forthright and credible. She submitted that the complainant gave evidence of a recalled experience which, as a matter of fact, occurred. On that afternoon, it is the case that the complainant had less than an ideal amount of sleep, had drunk a number of glasses of wine the night before, had gone to work feeling hungover and was very tired.
She described the ‘penetration/waking lag’. She anticipated the submission from the defence that once the complainant is visibly awake, the defendant’s hands are above the water line so she must be mistaken, unreliable or lying about what occurred. Against that Ms Matteo submitted there were four very significant factors.
First, she submitted that while surreptitious positioning may have taken a while for the accused to achieve, the vaginal and breast touch took a matter of seconds. Ms Matteo referred to those parts on the CCTV footage where the accused edges closer to the complainant and gets to the point where there is less than half a tile width between the two of them. This equates to something less than 12½ centimetres. She submitted that what the footage shows is that the encroachment upon the complainant’s space by the accused was subtle and surreptitious, as well as responsive to other things that were happening in the spa.
Second, he performed the acts on a woman who was in an extended deep sleep and therefore likely to tolerate a degree of physical interference before waking up.
Third, the CCTV footage shows distinct opportunity for the contact as alleged.
Fourth, the process of waking up as a matter of common sense does not involve a precisely identifiable moment in time. Her allegations cannot be ignored on the basis of a mere visual disconnect between the observable waking and the opportunity for touching. The complainant gave evidence that she maintained her position in the spa after she was awake.
Ms Matteo submitted the footage of what occurs after the complainant leaves the spa is circumstantial evidence capable of revealing on the part of the accused a desire to remove himself from the spa and not draw attention to himself. He leaves the spa shortly after the complainant. The jets are still on and activated. As he leaves the spa and takes his towel it is held in a curious position consistent with the desire to some degree shield his appearance. He then places a blue towel over the back of his head. His movements are subtle, careful and furtive.
She submitted that the complainant’s evidence is supported by the DNA evidence. It is highly significant that the relevant DNA profile came from the accused’s left hand. On the evidence, the notion of DNA in sweat moving about the spa as an explanation for the DNA results from the left fingernail scraping can be rejected. Further, the area under the fingernails is more protected and less susceptible to dislodgement of DNA than other areas of the hand. Despite all of his movement after contact with the complainant, there is still sufficient DNA under his hands to leave information. There is strong support for the complainant being a contributor. There is no reasonable possibility that the complainant is mistaken.
The complaint evidence is evidence of consistency of conduct both in terms of when she made the complaint and the content of it. She also submitted that the evidence of distress is very powerful to the extent that it was timely with the initial complaint and the elaboration.
For the accused, Mr Caldicott relied upon the recording by the police of the arrest of the accused that evening. There was conversation in Kurdish between the accused and his wife during which his wife asked what he has done. The accused said, ‘I have done nothing.’. His wife then asked, ‘how come police are going to come when you have done nothing?’. The accused then said, ‘I have done nothing wrong. The police are here. Let them ask me what I have done.’.
In the ensuing conversation with his wife and daughter, in Kurdish, the accused repeats, ‘I haven’t done anything.’. Soon after, his daughter said to him that this is a serious matter you need to answer questions carefully. The accused responded in Kurdish, ‘I know this, I didn’t do anything wrong.’. Mr Caldicott submitted that the accused has denied any wrong doing.
At one point, the accused said the word ‘swimming pool’ in English and then, in Kurdish, ‘I haven’t done anything’. By that stage, there is no mention in the recording of the police mentioning anything about a swimming pool. I note, however, there was conversation in Kurdish between the accused and his family which was indistinct and unable to be translated. It may well have been that the concept of the swimming pool had been mentioned during that indistinct conversation. I do not place any reliance upon the accused mentioning at that point ‘the swimming pool’.
Mr Caldicott submitted that the complainant did not react as you would expect if there was blunt pain in her vaginal area. If that had happened you would expect her to be startled, wake up and stand up. Instead she claims to just lie there. He submitted that there was touching of elbows and it is after that that she appears to stand up. That is what has woken her. Also, contrary to her account, the footage shows that there was a conversation between the two of them. That occurs after she moves away from the corner where the accused is and then comes back into the corner and has that conversation. He submitted that is incredibly unusual if what she claims to have happened did in fact happen.
He submitted that the accused encroaches upon her space because other men come in and encroach upon his. He is moving away from those other men.
He submitted that the footage does not confirm what she claims in terms of her waking after this has happened to her. If you work back from the time the complainant is visibly awake on the footage, the accused has both elbows on the side of the pool during the time the complainant alleges the offending must have occurred. His hands are not under the water.
Mr Caldicott submitted that the prosecution has not excluded the possibility that the DNA could have been innocently transferred to the accused in the circumstances of their close proximity in the spa for a considerable amount of time.
He submitted that there is nothing to be gained by an analysis of the accused’s behaviour after the complainant left the spa. He does not leave the Aquatic Centre immediately. He remains there for about half an hour after these alleged events.
Discussion
The complainant presented as a calm, thoughtful and matter of fact witness. I did not gain the impression that she was prone to exaggeration of her evidence. She made appropriate concessions. For example, she had no memory of speaking to the accused after the alleged offences, but acknowledged that she must be wrong about that because of what was shown on the CCTV footage. The need to make such a concession did not appear to shake her in any way.
I find that she was an honest witness who honestly believes she was digitally penetrated and then indecently assaulted in the spa. The issue is one of whether the prosecution has excluded the possibility that she is honestly mistaken about what occurred. That issue squarely arises because of the circumstances surrounding her allegations, namely, that she must have been asleep when the accused initially penetrated her and that she had just woken from a deep sleep when she became aware of the alleged acts.
I have scrutinised her evidence with care and considered it alongside all the other evidence in the case. That other evidence includes the accused’s denial in Kurdish of any wrong doing to his family when the police arrived at his house. That evidence is not sworn evidence, nor has it been tested by cross-examination. I note the evidence, but do not attribute to it much weight. I remind myself that he has no obligation to prove anything. The prosecution must disprove his denial and prove his guilt beyond reasonable doubt.
I have carefully watched the CCTV footage of the spa. I find that the accused gradually and surreptitiously made his way closer to the complainant during the period of the footage. By about 4.54.24 pm, there was significant distance between him and the man to his right. The accused made no effort to move into that space to keep an appropriate distance from the complainant. Over a period of ten minutes up to that point, he had encroached upon her space and then maintained that position despite the opportunity to move away. By 4.56 pm, he had moved so close to the complainant that there was very little distance between them. In my view, he would have had no difficulty touching her body with his left hand under the water. There was no reason for the accused to be so close to the complainant. There was plenty of room for him to move to his right and respect her space.
At 4.56.31 pm, one of the men opposite the accused moved into the space next to the accused. That in itself is indicative of the availability of space to his right. The accused then proceeds to gradually move even closer to the complainant, bit by bit. I do not agree with Mr Caldicott’s submission that the position of the man to the accused’s right required the accused to move closer to the complainant. By 4.57.35 pm, he had moved himself so close to the complainant that it would be difficult for him not to be touching her under the water. By that stage, his proximity to her was inappropriate. After that, his slight movement away from her appears to coincide with a man entering the spa (5.01.43 pm) and the jets stopping (5.04.13 pm). Once the jets are back on, he moves back closer to the complainant.
Between 5.09 pm and 5.17 pm, the accused’s left arm/hand is in and out of the water at various stages whilst he is close to the complainant. I find there was ample opportunity for the accused to commit the offences during that period, which includes in the minutes at 5.15 pm and 5.16 pm.
After 5.17.09 pm, the offences could not have been committed. The accused’s right arm is out of the spa, bent on the spa ledge and in contact with the complainant’s bent left arm. His arm remained in that position until the complainant was visibly awake at just before 5.18 pm.
It does not concern me that the offending could have occurred at 5.15 pm – 5.16 pm (or even earlier), but the complainant does not appear to be visibly awake until a minute or more afterwards. She gave evidence that when she felt the finger in her vagina she froze and did not change her position in the spa. She estimated that period to be about six seconds. I am sure she is wrong about that estimate. In cross‑examination, she said she was awake for at least a minute before she can be seen to wake up. After she felt the finger inside her, she kept her eyes closed; she was deciding to get up and get out. I consider ‘at least a minute’ is a more accurate estimate, but also note that the time during which the complainant has described herself as ‘frozen’ would be a notoriously difficult period for her to estimate in the circumstances.
I do not agree with Mr Caldicott’s submission that the complainant did not react as would be expected if she really had woken to feel a finger inside her, which was said to be painful or uncomfortable. He suggested it would be expected that she would be visibly startled and jump up. In my view, it is difficult to make a finding about what would be ‘expected’ in those circumstances. All I am prepared to expect, is that people would react differently. I do not consider there is anything unreasonable or untoward about the complainant’s reaction. Nor does her inability to recall the accused speaking to her afterwards or the fact that she moved closer to the accused when he did speak to her cause me any concern about her credibility. I find that the complainant’s reaction, as she described in her evidence and as is visible in the CCTV footage, was understandable and not inconsistent with the occurrence of the events as she described.
I consider that the accused’s behaviour after the complainant left the spa was telling. He watched the complainant leave. Based on the direction of his gaze, I find that he watched the complainant as she walked to the area where she approached the lifeguard. He left the spa shortly after that. He did not stop to put on his shoes. When he stopped near the main pool, he got a towel out of his backpack and put it over his head. That was odd. His head would not have been wet as it had not been under the water in the spa for at least 40 minutes, if at all. I consider his behaviour is consistent with trying to minimise his visibility. I note that he did stay at the Aquatic Centre long enough to have a shower, however, it took him only 11 minutes (approximately) to leave the Aquatic Centre from the time he left the spa.
I have considered the possibility that there may be other explanations for the accused’s behaviour. I have also borne in mind the need for caution in assessing his behaviour from the footage, particularly the danger of approaching the task with a biased assessment arising from a prior knowledge that these allegations have been made. I do find his behaviour to be supportive of his guilt of these allegations. Given the timing of his conduct (during the period immediately upon the complainant leaving the spa) and the nature of his conduct (particularly, not accessing his shoes or towel until he is away from the spa area and then placing the towel over his head), I am satisfied that it does point to a realisation of guilt on the part of the accused. I have nevertheless considered this evidence as only one piece of evidence which supports the prosecution case. Ultimately, my finding as to the accused’s guilt does not depend on this evidence. I am satisfied of his guilt beyond reasonable doubt regardless of this evidence.
The complainant made an immediate complaint to Mr Donato-Edwards which was then elaborated upon shortly thereafter when she spoke to Mr Earl. The complaint is evidence which shows how her allegation first came to light, namely, as soon as she left the spa area.
What the complainant told Mr Donato-Edwards and Mr Earl is not admitted as evidence of the truth of what she said, but rather as evidence of consistency of conduct on her part. I find that her conduct in making the complaint to both lifeguards was consistent with her allegations in terms of the timing and content of that complaint. To her credit, she approached the first lifeguard she saw and raised the alarm, even though he was male and a stranger. Again, to her credit, she gave further information to Mr Earl at a time when she was safely in the lifeguard office waiting for the police.
I find that the complainant was genuinely distressed when she made her complaints, particularly the complaint to Mr Donato-Edwards. I have taken into account that signs of distress may result from one of a number of possible causes which may be unrelated to the commission of the offences. However, I consider the timing and nature of her distress was consistent only with her claim that the alleged offences took place. Distress alone does not prove an offence. It does support her credibility.
The DNA evidence also supports the prosecution case. I note the cells could not be tested at Forensic SA to determine if they were vaginal cells. I also note that the DNA evidence does not rise to the level of there being very strong or extremely strong support in favour of the complainant being a contributor to the mixture of DNA under the accused’s left fingernails. It is nevertheless strong support.
If it is the complainant’s DNA under the accused’s fingernails, I have considered the possibility that it came to be there innocently via secondary transfer because the accused was sharing a spa next to her, touched the same surface as the complainant, touched the complainant’s arm with his arm or because of sweat cells in the water. I have been able to reject those possibilities. I accept the evidence given by Ms Harkin in re-examination. In her opinion, she would not expect sweat cells in the water to account for the profile obtained. If it had been, she would expect to see a mixed DNA profile from many more individuals in the result and the amount of DNA recoverable would be so low as to be undetectable. Further, the DNA was obtained from under the accused’s fingernails. Once lodged there, such cells are more protected than cells deposited on the surface of the hands. That would explain why they remained there after the accused was observed by Mr Bessant to be in the shower at the Aquatic Centre prior to leaving. Given the nature of the allegation, it is significant that the evidence was obtained from the accused’s left fingernails.

Having considered the complainant’s evidence in court, found that she made immediate complaints to the lifeguards which were accompanied by genuine distress, observed the accused’s surreptitious movements towards the complainant into a position unnecessarily and inappropriately close to her as she slept, found that the CCTV footage reveals the accused had opportunity to commit the offences in the period of almost eight minutes prior to when she is observed to ‘wake up’ and considered the strong support for the DNA under the accused’s left hand fingernails to be the complainant’s DNA and rejected the possibility of secondary transfer as the explanation for the DNA evidence, I am satisfied beyond reasonable doubt that the accused is guilty of both of these offences. His behaviour after the complainant left the spa fortifies that degree of satisfaction.
I find the accused guilty of count 1 and count 2.