R v Keeler - [2015] SADC 28

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KEELER
Criminal Trial by Judge Alone
[2015] SADC 28
Judgment of His Honour Judge Barrett
10 March 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
The accused is alleged to have raped the complainant after others at a small party had left the house. The accused admits intercourse but says the complainant consented.
Held: On the state of the evidence, unable to be satisfied beyond reasonable doubt that the accused is guilty. Verdict of not guilty.

R v KEELER
[2015] SADC 28

The accused is charged with raping the complainant at a unit in Ceduna around midnight between Saturday 28 and Sunday 29 May 2011. The woman was invited into the unit by a work colleague who was drinking with the accused and another man. The work colleague and the other man left the unit at around midnight to get more alcohol from a hotel, leaving the accused and the complainant alone in the unit. The complainant alleges that after the two men left, the accused forced her into a bedroom and there had oral intercourse with her without her consent. She said she had made plain to the accused her lack of consent to the intercourse. She had been resisting sexual advances by him earlier in the evening before the two men left.
The accused says the complainant consented to the intercourse. On his account she was essentially the instigator of it. Further, she had been flirting with him in the presence of the other two men earlier in the evening.
The prosecution called the complainant, the work colleague who invited the complainant into the unit and the woman to whom the complainant reported the incident the next day. The accused’s interview with the police was tendered. While at first declining to answer questions, the accused told the police that he had had intercourse by consent. The accused gave evidence. He called no other witnesses.
The issues in the trial are the questions of the complainant’s consent or lack thereof and the accused’s knowledge or recklessness about that consent.
I turn to the evidence in more detail.
The complainant is now 25 and the accused 45. In May 2011 they were both some 4 years younger. Both are of aboriginal descent.
The complainant had been in Ceduna for only a couple of months. She worked there as a disability support worker. The accused is a fisherman who had lived most of his life at Thevenard. I say “most of his life” because although he said at one stage that he had lived all his life at Thevenard (T71), at another he said he lived on a reserve in Port Augusta for some time (T76). In fact, the accused said that he had met the complainant some 10 years earlier when he was living in Port Augusta. She denies that. I will turn to that question later because it assumes some importance in the trial. At all events, the complainant was very new to the town and the accused was a local.
The complainant had been drinking alcohol with friends at her place. She had been drinking wine and spirits. Although the complainant was somewhat evasive about the effects of alcohol on her that night, I conclude that she was somewhat intoxicated when she left her house. She says she and four friends left her place on foot at around 10 pm. There was no evidence about where they were going. The complainant says that she was feeling sick and dizzy. She vomited. Her stopping to vomit caused her to be separated from her friends. Afterwards she walked along on her own. She noticed a work colleague, Michael Sansbury, outside a unit. Sansbury was a local who had known the accused all his life. The complainant had only met Sansbury through her work, so she had only known him for a couple of months. Sansbury is now 35. Sansbury invited the complainant into the unit. She accepted the invitation.
Inside the unit were two more men, Gordon Harris and the accused. The complainant said that Harris was introduced to her only as “Gordie”. The accused introduced himself as “James” (the accused’s given names are Kingsley James Darren).
The complainant says that in discussions with the accused he told her that he was a fisherman, he was not from Ceduna, he had not long moved there, and he had no children. (The accused denies introducing himself as James although he concedes he might have mentioned his second name was James. He was not asked whether he said he was not from Ceduna. He denies saying he had no children.)
The complainant says that although she knew Sansbury from work, she did not know either of the other two men. She did not know the accused.
There is no precision about the times on the night, but the complainant says that she left her house around 10 pm and the two other men left the unit to get more alcohol before midnight. The complainant’s impression was that the men left the unit in time to get to the hotel before closing time which she believed was midnight. That evidence might suggest that the complainant was at the unit for about an hour before the two men left. While at the unit the complainant drank a stubby of beer. Music was playing. At one stage she changed a CD. At another stage, those present in the unit took it in turns to stand back to back in pairs to compare their heights. The complainant joined in.
The complainant and the accused give quite different accounts of what was going on between them before Sansbury and Harris left the unit.
The complainant says that the accused was engaged in unwelcome touching of her. He touched her arm. He touched her several times. He kept touching her bottom. He touched her bottom when she changed a CD. He grabbed her hand and her bottom when the two of them stood back to back to compare heights. Each time the accused touched her she moved his hand away and said “Shame”. On one occasion when he touched her and she rebuffed him, he laughed it off. The complainant said that when the two other men left the unit she did not go with them because she was dizzy.
The accused’s account is different. He says that before the other two men left he and the complainant were flirting with each other. He denies touching the complainant at this stage, but he says there was flirting between them by way of looks, talking and laughing (T79). At one stage the complainant grabbed his hands and said “You’ve got warm hands”. The complainant denies doing that. Sansbury says that he thought that did happen.
Sansbury gave evidence. Harris did not. Sansbury said that he thought the complainant knew the accused and Harris when she came into the unit. He was not asked what made him think that. He thought the complainant was a bit drunk. In examination-in-chief he was asked what the complainant did when she came into the unit. This exchange then took place (T64): (Sansbury referred to the accused as “Dinger” and the complainant as “Nellie”.)
AI think she grabbed Dinger’s hand and told him he had soft hands.
QWhen do you say that happened.
A10 minutes into it.
...
QYou said that she said to Dinger he had soft hands. Can you tell the court how that came about.
AI think she just leant across the table and grabbed – grabbed, just grabbed his hand.
In cross-examination he was questioned about interactions he observed between the complainant and the accused. This exchange took place:
QWas it the situation that you did not observe anything from Nellie to indicate that she did not like being with Mr Keeler, with Dinger.
ANo there was no indications.
QIn fact, didn’t it appear to you that Nellie was flirting with Dinger.
ADepends what you call “flirting”.
QDidn’t you tell the police ...
AAt that time because I was drunk, to me it was.
QDidn’t you tell the police officer who you gave a statement to that it appeared Nellie was flirting with Dinger a bit.
AA bit, yeah.
QAnd it actually looked like they were both flirting with each other: is that right.
AThe way they was talking, yeah kind of.
QEnjoying each other’s company.
AYeah.
QHappy to be with each other.
AYeah, was no complaints.
QIt was like that right up until you left to go to the pub: is that right.
AYeah, we was all having a good time.
Sansbury said he never saw the accused touch the complainant on the bottom.
It is plain from the cross-examination that the witness had told the police that he had seen some flirting between the two. The transcript catches something of the tenor of Sansbury’s evidence on that topic, but I had the clear impression from the witness in the witness box that he was seeking to qualify or distance himself from what he had said to the police.
That impression was reinforced by a passage in re-examination (T71):
QWhat were Nellie and Dinger saying to each other which gave you the impression that they were flirting.
AI can’t recall.
QHow did you get the impression they were flirting.
AJust drunken stupid things going through my mind. I reckon that’s all it was.
I do not mean to suggest that I thought Sansbury was an unsatisfactory witness. On the contrary I thought he was generally reliable, but I did think he was uneasy on the topic of flirting between the accused and the complainant. I expect he felt divided loyalty. The complainant was his work colleague at the time even though they had not known each other for long. He had invited her into the unit. On the other hand the accused was a local like him. They had known each other all his life. The accused is 10 years his senior.
Once the two men had left the unit, only the complainant and the accused remained. They are the only witnesses to what went on at the crucial time.
The complainant says that as soon as the other men left the unit the accused became sexually aggressive. He came and sat next to her on a couch in the lounge. He started touching her face and complimenting her. He kissed her hard, so hard that his teeth hit hers painfully. He grabbed her hand and put it on his bare chest. She was saying “Shame”. He tried to pull her trousers off. He pulled her into the bedroom and pushed her on to the bed. He pulled up her shirt and tugged at a ring she had on one of her nipples. He scratched that breast. He tried to take her trousers down, and in doing so, he scratched her on the hip. She told him she was menstruating. She heard banging and yelling at the front door. She said they are going to hear you. He said that she could “help him out in other ways”. He pulled out his penis. He rubbed it over her face. He then put it in her mouth. He moved in and out a few times while holding on to her hair and pulling some hair out. She was telling him he was hurting her. He eventually stopped and was angry. He walked out and apparently let people into the lounge room.
The accused says that after the two other men left, the complainant invited him to sit next to her on the couch. They started kissing and fondling each other. They went to the bedroom. There the complainant invited the accused to look at her “secret”. She lifted up her top and showed him the nipple ring. He sucked on it. He did not pull it or scratch that breast. He did not scratch her anywhere. Following that the complainant grabbed the accused’s penis “and went straight down like that giving me five sucks and there was a knock at the door and we left the bedroom” (T80).
The accused opened the front door and let in Sansbury, Harris and four young girls. A few minutes later Jenny, the accused’s partner, and “Twinky”, Sansbury’s partner, walked in.
The accounts by the accused and the complainant about what happened at the unit after the bedroom incident are not substantially different although one aspect of this testimony is of some significance.
The complainant says that she immediately approached a woman she knew as Aunty Jenny. She knew this woman as her mother’s cousin. She had known her for some years. She says she began to tell Jenny that the accused “Was trying to kiss me and stuff” (T18). The prosecution did not lead this evidence as evidence of complaint because the complainant says that she did not get a chance to tell Jenny about the rape. As soon as she told her that the accused had been trying to kiss her, Jenny became very angry.
The somewhat unusual aspect of this evidence is that Jenny was the accused’s partner. (They have since separated).
I pause to discuss why I think this evidence is admissible despite there being no objection to its being led. I think it is admissible as part of the res gestae. It is something that happened immediately after the alleged crime. It is necessary to lead that evidence to explain how the whole episode occurred. The defence may not have objected to the evidence because it showed that the complainant did not complain of rape when she might have been expected to have done so. That submission was wisely not proffered by Mr Lyons in his address because it would quite understandable that the complainant might not be willing to immediately report rape with so many people around.
I think the evidence is also admissible for another purpose. It has at least the potential to support the complainant’s account that she did not know who the accused was before that night. The accused says that they did know each other before that night. He says that they met some 10 years earlier when he was living in Port Augusta. He says he knew members of the complainant’s family who lived at Davenport Reserve. He had met the complainant herself. In fact, he said, Jenny had introduced them. It is common ground that the complainant is related to Jenny and that they knew each other. As an aside, the accused said that he thought the complainant was 15 or 16 when he met her. If the accused meant he had met her 10 years before he gave evidence, that would be correct. She would have been about 15 or 16. If he meant that he had met her 10 years before the events of this night, in 2011, that is not right. She would have been around 10 or 11. This uncertainty was never resolved, but I do not think much turns on it.
Of greater significance is the accused’s contention that when Jenny introduced the two of them, Jenny was then his partner. As of 2011 they had been partners for 25 years. The accused said that the complainant would have known that they were partners when Jenny introduced them to each other.
If on the night the complainant did know the accused and Jenny were partners, or even if she knew that 10 years earlier they had been partners, it would have been unusual for her to be telling Jenny that the accused had been kissing her. I suppose there are several possible explanations making it less unusual. The complainant might have forgotten that they were partners, particularly if she was intoxicated. That may be plausible. I suppose that it is conceivable that the complainant might have decided to go on the front foot and confront the accused’s partner with the allegation that he had instigated the kissing, although I find that possibility unlikely. I think that with several people around the complainant would be unlikely to embark upon that exercise. I add that while the accused and Sansbury both say that four unnamed girls came in to the unit with Sansbury and Harris, the complainant does not think the girls came in until later. I do not think anything turns on that discrepancy.
For his part the accused acknowledges that he saw the complainant speaking to Jenny. He also acknowledges that, immediately thereafter, Jenny started abusing him.
In cross-examination he contradicts himself about whether Jenny was upbraiding him about having anything sexual to do with the complainant. When first questioned what Jenny was “going off at” him about, he said it was about his drinking and was not about the complainant (T83). Shortly afterwards he said that Jenny asked him “Why are you mucking around with this young girl?” (T84), meaning the complainant.
I think it is plain that the complainant said something to Jenny about the accused doing something sexual to her. I think it unlikely that she knew Jenny was then, or had been, the accused’s partner. It is of some significance that the next day the accused made no mention to the police of knowing the complainant. He had the opportunity to give some thought to what he was going to say to the police. When first spoken to by the police about the complainant’s allegations the next day he declined to answer, but later in the day he voluntarily went back to the police. Although the interview was relatively short, he at no stage suggested he knew the complainant before this night.
I do not overlook that Sansbury said that he thought that the complainant did know both the accused and Harris when she came into the unit but he was never asked why he thought that. I also note that it was never put to the complainant that she knew the accused before that night.
I find that the complainant did not know the accused before that night. I reject the accused’s account on that topic. The complainant says that Sansbury did tell her on the night that the accused and Jenny were partners, but that was after the group came back to the unit. While I reject the accused’s account of knowing the complainant before that evening, that finding is only adverse to his credit. I do not think it otherwise makes one account of the alleged offence more credible than the other.
The complainant’s account of who did what after she spoke to Jenny is not entirely clear. She says that Jenny got angry and everyone started screaming. Despite cross-examination on that topic she did not make it clear who said what. She does not make it clear to whom Jenny directed her anger. The accused says Jenny initially at least directed her anger at him for drinking. I do not think that is likely. I think it is more likely that a substantial part of Jenny’s anger related to what the complainant told her had gone on between her and the accused. The accused himself acknowledges that she was angry at him about that..
The complainant said in cross-examination that Twinky, Sansbury’s partner, admonished the accused at some stage when the group came into the unit. Twinky said to the accused that he “Shouldn’t do that to girls” (T55). The complainant said the accused forcefully told Twinky to be quiet and he put his hand against her throat. She goes on to say that Sansbury told the accused to keep his hands off her. The accused denies this. Sansbury himself says he did not see that happen, nor did he say anything.
The complainant says that Gordon Harris accompanied her from the unit to her house. She says that as she was leaving the unit people were shouting, “She’s a dirty slut” (T49). The accused was not asked about that.
The significance of events after people came to the unit is that the defence case is that the complainant has told a false story of rape to save her reputation among those who were there. It was put to her in cross-examination that she told a false story to Jenny so as to maintain her reputation in Jenny’s eyes. That hypothesis is not easy to sustain if the complainant knew at the time that Jenny and the accused were partners unless it was said to Jenny after Jenny got angry with her. That is not the scenario which was put to the complainant. The complainant says she started to tell Jenny about what the accused had done, whereupon Jenny became angry. Of course the accused bears no onus to prove a motive for the complainant to lie, or to prove anything else. The onus rests on the prosecution throughout.

Some time after the complainant got home she heard some banging outside her house. She rang the police. She said she heard a mob of people outside her house. In her statement to the police she spoke of hearing only one male voice outside.
A police officer came to her house and spoke to her. It appears by then whoever was outside her house had gone away. The complainant did not report the rape to the police officer who came to her house. She said she did not complain to the police officer because she felt ashamed (“I was really shamed” T50). She said she was still coming to terms with what had happened.
Later that day the complainant contacted a friend, Keryn Wiseman, and reported the rape to her.
Generally her account to Ms Wiseman was consistent with her evidence in court, except that Ms Wiseman said the complainant told her that she was with friends in a car before getting out and walking home. While walking home she was invited by a colleague into a house.
Police spoke to the accused that same day at about 11 am. He declined to answer questions. He was arrested. Around 2 pm he said he did want to speak to the police. He was cautioned. He denied the rape. He said the complainant voluntarily sucked his penis. Generally his brief account to the police was the same as his account in court.
The complainant was seen by Dr Anuphma Shivashankaraiah who says she is known as Dr Anu. Dr Anu began her examination at 2.51 pm on 30 May at the Port Augusta Hospital. The complainant was upset and teary. Dr Anu noted a 10 cm scratch on the right groin just above the thigh. The complainant said she was scratched on the hip. While the doctor’s description of the location of the injury might appear inconsistent with the complainant’s description, the doctor’s drawing on the body chart is not so inconsistent. The body chart drawing might be interpreted as showing the scratch extending from the right hip to the groin. I do not regard that apparent inconsistency as material.
Dr Anu said that the scratch appeared to be two to three days old. The complainant says she sustained the scratch during the incident which may have occurred around midnight between 28 and 29 May. The doctor’s examination was at 2 pm on 30 May. I do not regard that apparent inconsistency as material either.
The doctor noted an infected discharge from the nipple ring. She noted no scratch there. The complainant said she had been scratched on the breast. I do not regard that as alleged inconsistency as significant.
Finally, the doctor examined the complainant’s head because the complainant reported to her, as she had said in court, that the accused had grabbed her hair pulling some of it out. The doctor saw nothing to indicate that. She did not see a lump on the complainant’s head. The complainant said she sustained a lump. I do not regard that alleged inconsistency as significant.
Not long after the medical examination the complainant left Ceduna. She resigned her job and moved away. She has not been back to Ceduna since. The prosecution points to that fact to negate the defence suggestion that the complainant has made a false claim of rape to save face in the eyes of people from Ceduna. She has had no ongoing contact with the people of Ceduna.
Factual findings and reasons
I have found making findings of fact very difficult in this case. I have come to the conclusion that I do not know where the truth lies. I explain why I am left in that frame of mind.
If the case were to be determined by deciding which account of the principal protagonists I preferred, I would prefer the complainant’s account. She gave her evidence in a straight forward manner. I could detect no implausibilities in her account and I could detect no unsatisfactory aspects to her demeanour, except perhaps a degree of prevarication about the alcohol she had consumed.
I do not believe she knew the accused before this night.
Her account of his unwelcome advances before the two men left the unit seemed credible.
Her account of what went on in the bedroom was likewise credible.
I could understand why she might be reluctant to tell others who came to the unit about what the accused had done.
Her account of telling her aunt Jenny something of what happened seemed credible.
I could even accept that she might not have been ready to report the matter to the police officer who came to her house when her house was disturbed by a person or people outside.
Her complaint to Ms Wiseman later that day was materially consistent with the rape she complains of.
The medical evidence is also reasonably consistent with her complaint of rape.
The suggested motive for the complainant to lie seems tenuous.
By comparison I found the accused’s account as a witness, and his account itself, less satisfactory. I reject his contention that he knew the complainant before that night. I think his account of the complainant effectively instigating the sexual intercourse unlikely, even allowing for her intoxication.
As I say if the matter were to be determined by deciding which of the protagonists’ versions I prefer, I would accept the complainant’s version. However that is simply not how the matter is to be determined. Before revisiting the complainant’s account and applying the correct approach I turn to the evidence of Mr Sansbury. He was the only other witness from the unit that night. I think he might have had divided loyalties. Like the accused he was a local. He had known the accused all his life. On the other hand he was the complainant’s colleague and he had invited her into the unit. Generally I thought he was a credible and reliable witness.
I have one reservation about Mr Sansbury’s reliability. The reservation is that I had the distinct impression that he was trying to distance himself from what he had told the police about the accused and the complainant flirting in the unit before he and Harris left to go to the pub. However, I do not have the same reservation or impression about his account of the complainant taking the accused’s hand and saying that he had warm hands. I found the detail of that observation credible. That observation on its own could possibly be described as flirting. Mr Sansbury said the complainant appeared intoxicated. I think it is clear that she was intoxicated. She had vomited earlier in the evening. She said the reason why she did not leave the unit when Sansbury and Harris left it to go to the pub was that she was still feeling dizzy. She had drunk further beer while she was at the unit.
The complainant denies she was ever flirting with the accused. She denies saying his hands were warm. While I have reservations about Mr Sansbury’s assertions of the former, I do not have reservations about the latter. That is one aspect of the complainant’s account that I do not accept. I think she did take the accused’s hands in the unit and say that they were warm.
It may be that the truth of the essential aspects of this case is somewhere between the accounts given by the accused and the complainant. It may be that, by reason of her intoxication, the complainant was more forward with the accused in the lounge room while the other men were present than she now acknowledges. It may be that she did not reject his advances as forcefully as she now says. It may be that in the bedroom she did not reject his advances as forcefully as she now says. Despite not taking the sexual initiative in the way that the accused alleges, it may be that she did not make her lack of consent clear enough for the accused to realise that she was not consenting. It may be that he did not know she was not consenting. It may be that he was not reckless as to her lack of consent. While these scenarios may be where the truth lies, I do not know where it lies. I am unsure.
I am left in this difficult case with not knowing where the truth lies. In that frame of mind I cannot be satisfied beyond reasonable doubt the accused is guilty of raping the complainant.
Accordingly I must find the accused not guilty. I so find.