R v Kertz

[2019] NSWDC 387

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Kertz [2019] NSWDC 387
Hearing dates:	18, 19, 20 March 2019
Date of orders:	27 March 2019
Decision date:	27 March 2019
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	Count 1: Not guilty Count 2: Not guilty on count 2 on the indictment but guilty of the non‑aggravated form of the offence.
Catchwords:	CRIMINAL PROCEDURE — Trial — Judge alone — Reasons of trial judge CRIME — Property offences — Enter dwelling-house with intent to commit serious indictable offence — Indecent assault — Circumstances of aggravation CRIME — Violent offences — Detain for advantage CRIMINAL PROCEDURE — Trial — Alternative verdict
Legislation Cited:	Crimes Act 1900 (NSW) ss 86(2)(b), 111(2), 115A, 428B Criminal Procedure Act 1986 (NSW) ss 133, 293A
Cases Cited:	Azzopardi v The Queen (2001) 205 CLR 50 Castle v The Queen [2016] NSWCCA 148 Fleming v The Queen (1998) 197 CLR 250
Category:	Principal judgment
Parties:	Director of Public Prosecution (Crown) Harold Kertz (Accused)
Representation:	Counsel: N Keay (Crown)   Solicitors: P Townsend (Legal Aid NSW) (Accused)
File Number(s):	2018/161770
Publication restriction:	Statutory non-publication order re identity of complainant

Decision

1. HIS HONOUR: The accused stood trial before me sitting without a jury on an indictment which contained the following two counts: count 1: That on or about 19 May 2018 he entered the dwelling house of the complainant with intent to commit a serious indictable offence, namely, indecent assault, in circumstances of aggravation, namely, using corporeal violence on the complainant. That is an offence under s 111(2) of the Crimes Act. Count 2 alleges that on 19 March 2018 the accused detained the complainant without her consent with the intention of obtaining an advantage, namely, sexual gratification and at the time of the detaining actual bodily harm was occasioned to the complainant. That is an offence under s 86(2)(b) of the Crimes Act.

2. I concluded hearing the evidence and the submissions of the parties on 20 March 2019 while on circuit at Goulburn and stood the proceedings over to today for delivery of the verdict and reasons. Despite having asked for a transcript of the evidence, in particular that of the complainant, regrettably I am having to give the verdict and the reasons without the advantage of a transcript.

3. I am required in this judgment to include the principles of law that I have applied and the findings of facts on which I have relied (see s 133 of the Criminal Procedure Act). There must be exposed in my judgment the reasoning process linking those principles of law to the verdicts that are ultimately reached (see Fleming v The Queen (1998) 197 CLR 250).

4. The most important principle of law to be applied in any criminal trial is that the onus of proof is on the Crown and proof is required beyond reasonable doubt. The words "beyond reasonable doubt" carry their ordinary English meaning and should be given their ordinary meaning in this context. Suspicion, no matter how grave, is no substitute for proof beyond reasonable doubt.

Elements of the offences on the indictment

5. I turn then to the elements of each of the offences on the indictment.

6. In relation to count 1, before I am entitled to return a verdict of guilty, the Crown must establish beyond reasonable doubt each of the following elements:

1. That the accused on 19 May 2018 entered the dwelling house of the complainant; and,

2. That he did so with intent to commit a serious indictable offence, namely, indecent assault; and,

3. That the accused did so in circumstances of aggravation, namely, that he used corporeal violence on the complainant.

7. There is no issue that the complainant’s premises is a dwelling house within the definition of that term. There is also no issue that the accused entered those premises during the night of 19 May 2018. There is an issue as to whether the Crown has proved beyond reasonable doubt that, at the time the accused entered the premises, he had the intent to commit the serious indictable offence of indecent assault. There is no issue that indecent assault falls within the definition of serious indictable offence within the Crimes Act.

8. An indecent assault involves a touching of person without that person's consent, knowing that the person was not consenting, or realising that there was a possibility that the complainant was not consenting but going ahead anyway, or not even thinking about whether or not the complainant was consenting; in other words, being reckless as to consent. To be indecent, the touching must have a sexual connotation or overtone. It can also include a touching which was accompanied by an intention to obtain sexual gratification.

9. The Crown must, therefore, prove, on the issue of the intention required in count 1, that, at the time the accused entered the complainant's premises, he had an intention to touch the complainant in an indecent way when she was not consenting to the touching and knowing that she was not consenting to the touching or being reckless as to whether the complainant was consenting.

10. Intent may be inferred or deduced from the circumstances in which an event occurs and from the conduct of a person before, at the time of, and after an event has occurred. Whatever a person says about an event may also be looked at in considering what intent the person had at the time of the event.

11. If I am not satisfied beyond reasonable doubt that corporeal violence was administered to the complainant when the accused entered the dwelling house but am satisfied beyond reasonable doubt of the other elements of the count, it is open to me to return a verdict of guilty of the non‑aggravated form of the offence (see s 115A of the Crimes Act).

12. The elements of count 2 that the Crown must establish beyond reasonable doubt before I am entitled to return a verdict of guilty are:

1. That on or about 19 May 2018 the accused detained the complainant without her consent with the intention of obtaining an advantage, namely, sexual gratification, and

2. That the accused knew that the complainant was not consenting, or was reckless as to whether the complainant was consenting to being detained and,

3. At the time of the detaining, actual bodily harm was occasioned to the complainant.

13. To detain a person means to prevent that person from leaving should she wish to do so. It is an inference with the person's liberty. It is enough if the complainant was detained for only a very short time. Here there seems to be no issue in relation to whether the complainant was, in fact, detained by the accused, although there is an issue as to how long the accused detained the complainant for. There is an issue as to whether or not the Crown has proved beyond reasonable doubt that the complainant did not consent to the detention. There is also an issue as to whether the Crown has proved beyond reasonable doubt that the accused knew that the complainant was not consenting to the detention.

14. What the Crown must prove in terms of the accused's knowledge that the complainant was not consenting was set out in Castle v The Queen [2016] NSWCCA 148. The Crown must prove beyond reasonable doubt that the accused knew that the complainant did not consent to being detained. Consent must be free and voluntary consent. Consent is not given if the complainant was detained by the accused as a result of force or threats. The Crown can prove the accused knew the complainant did not consent to the detention by proving beyond reasonable doubt either that the accused actually knew the complainant did not consent to the detention or that he was reckless as to whether the complainant consented to the detention.

15. The Crown will prove the accused was reckless by proving that the accused's state of mind was such that he realised the possibility that the complainant was not consenting but he detained her regardless. Alternatively, the Crown can prove the accused was reckless by proving that the accused did not care less whether the complainant consented to the detention or not but he detained her regardless. The Crown must prove beyond reasonable doubt that the accused detained the complainant with the intention of obtaining an advantage, being sexual gratification. It is not necessary that the advantage be actually achieved.

16. If I am not satisfied beyond reasonable doubt that at the time of the detention the complainant suffered actual bodily harm, but I am satisfied that the other elements of the offence have been proven beyond reasonable doubt, I may return a verdict of not guilty of the offence charged but guilty of the statutory alternative charge, being an offence under s 86(1) of the Crimes Act, being the basic offence of detaining a person for advantage (see s 86(4) of the Crimes Act).

Facts not in dispute

17. I turn then to some facts which appear to me not to be in dispute. In my opinion the following facts are not in dispute. The complainant and the accused were known to each other for over a year prior to the night of 19 May 2018, they having met during the accused's employment at the complainant's local garbage tip. The complainant had also met the accused's wife prior to 19 May 2018. Up until the events on the evening of 19 May 2018, the complainant regarded the accused as a friend.

18. The accused had attended the complainant's premises on other occasions prior to 19 May 2018 to assist in the chopping of wood. The complainant's home was in a somewhat remote location, a considerable distance from a road with no close neighbours (see exhibit 3). The accused lived more than an hour's drive from the complainant's premises (see exhibit 4 and the complainant's evidence). On the afternoon of 19 May 2018 the accused had attended the complainant's premises to again assist her in chopping up wood. He attended the complainant's premises between about 4.39pm and had left by 5.52pm. That can be deduced from the first two entries on exhibit 1, which contains extracts from the accused's phone.

19. During the time that he was at the complainant's premises that afternoon the accused disclosed certain matters about his past. The accused recorded, without the knowledge of the complainant, a number of phone calls between them that took place between 5.52pm on 19 May 2018 and 20 May 2018. The accused and the complainant also exchanged a number of text messages during the period 5.52pm on 19 May 2018 to 9.02am on 21 May 2018. I will discuss those phone calls and text messages in detail shortly.

20. The accused entered the complainant's premises some time after 11.35pm on 19 May 2018, being the time of the conclusion of the third recorded phone call, and had left the complainant's premises by 12.15am on 20 May 2018, being the time of the next text message between the accused and the complainant in which the accused said, "Sorry, didn't think you'd be like that to me after the conversation." It is an overwhelming inference that, by the time of that text message, the accused had left the complainant's premises.

21. I turn then to the text messages and phone calls which occurred prior to the accused entering the complainant's premises. The nature of the relationship between the complainant and the accused prior to the accused entering the complainant's premises on this occasion was evident when the complainant said to the accused in the first recorded conversation at 5.52pm on 19 May 2018, "I got a lot of respect for you as you are now. I don't care about your past." This was followed up in a text message sent by the complainant at 6.21pm which, in part, read, "Who you are now is what matters and you are a very special friend." In a text message at 8.50pm the complainant said, "And you're my friend."

22. At no time during the text messages or the phone calls that occur prior to the accused entering the complainant's premises that evening when the incidents the subject of the trial occurred did the accused inform the complainant that he was returning to her premises. There were some comments made in the text messages and phone calls by the accused which suggested he would not be. In a text message from the accused at 7.39pm the accused said, in part, "See you tomorrow."

23. The accused in the text messages commences to discuss topics of a sexual nature. In a text message at 8.17pm he says that, when he and his partner had separated, the next day "this hooker" moved in and "kept my bed warm" and went on to say that the complainant looked like that person. At one point during the text message exchanges that evening, the following occurs at 8.35pm: "Accused: 'You sick of me?' Complainant: 'Never,'" to which the accused shortly later responds, "I think my wife is. She's gone to bed." The inference from that exchange of text messages and the timing of them is that, at that point, the accused had returned to his own premises.

24. During the text messages and phone calls that evening the complainant and the accused discussed what might be described as bondage sexual activities. The discussion appears to commence when, at 8.51pm, the complainant sent a text message which said, "On Tuesday I will tell you the worst thing I've ever done." The accused responded in a text message, "Tell me now," and at 8.55pm the complainant sent a text message saying, "When I first gave up drugs, I nearly killed someone choking them while I fucked them. He had to be resuscitated."

25. The accused responded, "Did it turn you on or did you not like him?" At 8.58pm the complainant sent a text message which said, "I had a real pain/bondage fetish. I liked to be tied up and flogged and choked and I would hook up with people who were into the same twisted shit. It was an accident." In response to that the accused sent the following text, "Why I'm asking is because if you were choking me I would lay you down and screw the hell out of you." The complainant responded, "You would like it, wouldn't you?" to which the accused responded, "I would like nothing more than that in my life."

26. Between 9.05 and 9.14pm there were a number of text messages in which the complainant and the accused discuss bondage sexual activity in detail, with the complainant discussing what particular activities she favoured. At 9.07pm the accused sent the complainant a text message, "Be careful because you might get what you ask for," to which the complainant responded, "Don't play with me because I take this serious." At 9.10pm the accused sent the complainant a text message in the following terms, "I absolutely want to dominate. I can be kind and won't hurt till you need but you need to submit totally." Two minutes later the accused sent the complainant a text, "Are you ready?"

27. There was then a 36 minute call between the accused and the complainant which commenced at 9.15pm and which was not recorded. The complainant gave evidence about the content of that conversation. She said, however, that she did not remember a lot of what was said in the call. Her evidence was that she said to the accused that she felt deeply ashamed of her past and would not do it again and raised the fact that he was married. Her evidence was that the accused was getting angry on the phone and was trying to cut her off and said, "Be careful what you wish for," and was "quite pushy" Her evidence was that she remembered thinking that she did not want to meet with the accused the following Tuesday to chop wood.

28. The next contact after that call is the accused sending the complainant a text message at 9.53pm saying, "You know why I hung up, don't you?" At 9.56 he sent a further text saying, "Answer," having received no response from the complainant. He then made two short calls to the complainant which, from their short duration, I infer were not answered. At 10pm he sent a text, "Are you ending this???" and at 10.05pm made a further call to the complainant which was of very short duration and I again infer it was not answered. At 10.09pm the accused sent a text message to the complainant, "Are you still there?" to which the complainant replied, "Sort of."

29. There were then a number of text messages between them about what the complainant had meant by that text message and at 10.19pm she responded, "It means I'm going to bed," to which the accused responded, "You sure?" The complainant then sent a text message at 10.20pm, "I hate this part of myself. I've hated it for a long time and I think there's something seriously wrong with me." The accused responded to that text message at 10.22pm, "There is not. Listen to someone that know(sic). Will tell you all one day." Having received no response to that text message the accused, at 10.29pm, sent a text message, "You there?"

30. At 10.32pm the complainant sent a text message, "Can you get weed from anywhere?" to which, at 10.37pm, the accused responded, "Not today." The accused, at 10.39pm, telephoned the complainant and they spoke for just short of 32 minutes and the call was recorded by the accused. The initial part of the conversation concerned the obtaining of cannabis. In that call there were a number of exchanges which are of significance given the issues in this case, in my opinion. At one point there is the following exchange:

"Accused: You've told me a lot of secrets, can't expect me not to act on them, okay.

Complainant (laughing): I know.

Accused: You know I think the world of you too, okay.

Complainant: Yeah, I know that."

31. There is then an exchange where the accused said, "You were joking around when you said about going to bed," to which the complainant said, "Kind of, sort of," and is recorded as laughing. The accused in the call goes on to express how attracted he was to the complainant. At one point he says, "Fuck, after what you told me tonight you just became a ten, okay." There can be no doubt that what the accused was referring to was the fact that the complainant had told him that, in the past she had been interested in bondage sexual activity.

32. They then go on to further discuss bondage activities. The thrust of the conversation is the complainant, in effect, suggesting that she does not like that part of herself, which is interested in that type of activity, and the accused trying to convince her that there is nothing wrong with being interested in such activities. During the conversation the accused presses the complainant for more details of her past activities and she says at one point, "I should show you some videos some day. Every time I did anything, I always video taped it to cover my arse to make sure in case anything went wrong, in case I got hurt."

33. The accused and the complainant then proceed to discuss in detail the complainant's preference for particular aspects of bondage activity. At one point the complainant said, "I still have not found my threshold yet," that being a clear reference to her pain threshold. The accused then said, "Well, you need to be careful there because if you run in, if you get someone like me, right, I will take you to the threshold and I will, and if you don't stop, it could be serious problems." The complainant responded, "Yeah, I know. That's what I get scared of."

34. The accused in the call indicates that he cannot engage in those activities with his wife and at one point said, "There is something in me where I need to do it," to which the complainant responded, "I know what that means." At one point in the call the accused said, "Are you scared of people finding out?" to which the complainant responded, "Fuck yeah," and states that she told him because she trusted him and to show that he could trust her with the information about his past that he had told her.

35. The accused throughout the call makes it clear that he is sexually attracted to the complainant and at one point speaks of being jealous about a male friend of hers. During the course of the call the accused said, "You fair dinkum need to be tied up and fucked, okay," to which the complainant is recorded as laughing. After that call the complainant sent a text message to the accused at 11.14 saying, "Did you hang up on me again?" and at 11.16 there is a further phone conversation between the complainant and the accused which was recorded and lasts for some 19 minutes, concluding at around 11.35pm.

31. The accused opens that call by telling the complainant that he did not hang up on her in the previous call. The following exchanges in this call have some particular relevance given the issues in this trial, in my opinion. Early on in the call the accused said, in reference to the complainant's breasts, "And all I wanted to do was to just have your hands behind your back and they're all perked and poking out and I just wanted to squeeze your nipples." The complainant initially laughs at that suggestion. The accused then said, "And I wanted to really squeeze your nipples and I wanted to see what your face would look like," and the complainant responded, "If I wasn't expecting it I'd slap, I'd slap you, turn around and slap you in the face." Later in the call the following exchange occurs:

"Complainant: I'll show you some videos some day when I get the guts. I'll show you some videos and you can see for yourself.

Accused: I'll be looking at those videos sooner than what you think, okay.

Complainant (laughing): Well, they're in a hard drive in a box in the, you know, the shed that's falling down.

Accused: Yeah, I'll be looking at them sooner than what you think, okay, and whatever is on those videos I can do better."

37. Shortly after that the complainant said,

"'I don't want to, I don't wanna, I don't wanna, I'm not in a hurry to go there again.

Accused: Well, you don't know.

Complainant: I have to get, I have to get my head right.

Accused: You might not get a choice one day.

Complainant: Yeah, well, well, I will.

Accused: One day you might not.

Complainant: Yeah, I will. I've always got a choice.

Accused: Yeah.

Complainant: Yeah.

Accused: So you don't really want it, do ya? You don't want it to be serious, do you?

Complainant: I don't want to go back there right now, right now. I'm not ready to go back there.

Accused: Okay.

Complainant: Because I'm scared of where I'm scared of where it'll take me."

38. It is an overwhelming inference that, at the time of that call, the accused was either near the complainant's premises or had already arrived there. There was then a further exchange in the call clearly referring to the accused wanting to engage in bondage sexual activity with the complainant:

"Accused: Listen, let, let me ask you something straight out, okay. If I ever really wanted to with you would you give me permission?

Complainant: I can't say that right now cause I would, it would depend on what, how I was.

Accused: What would it depend on?

Complainant: And the fact that you're married, I'm sorry but it's a big one for me.

Accused: Forget the married bit."

39. Later in that call the complainant said, in reference to the fact that the accused was married, "There's ways around that. I, I did this with somebody who, who his wife full well knew that she wasn't going to give it to him." Later, in reference to their interests in bondage activity, there is this exchange:

"Accused: Oh, so what you're telling me is that you don't want any of that any more.

Complainant: Well, in my head I don't.

Accused (laughing): But physically you do.

Complainant: That's what's wrong. (laughing)"

40. The accused, at a later point in the call, said, "Would you do it with me? Forget the married bit, okay," to which the complainant responded, "Yeah, well, I can't, I can't, no …Well, I wouldn't while you're married. I wouldn't, I wouldn't, I - if it was not out in the open, if Kirsty wasn't aware of it, if she was aware of it, fine." "Kirsty" is a reference to the accused's wife. Later there is the following exchange:

"Complainant: I'm quite happy for it to get serious.

Accused: You are?

Complainant: But it, but not on the sly.

Accused: Not on the what?

Complainant: Not, not, not in secret or, you know, not without - I don't know. It's hard to explain. I don't know."

41. Later the complainant said:

"Yeah, well, I don't know what I, I don't know what I want.

Accused: You don't know what you'd do if I wanted to with you?

Complainant: I don't know.

Accused: Okay, I don't know is okay. The I don't know is okay as long as you don't say no to me.

Complainant: I'm gunna go cause I want to go to bed and I don't want to think about it any more."

42. Shortly after that the call ended. Those calls and text messages support the following findings of fact, in my view: as at the date of the calls the accused and the complainant were friends and they each considered that there was a level of trust between them; that they both had an interest in bondage sexual activity; that the accused had a sexual attraction to the complainant and wanted to engage in bondage sexual activity with her; that the complainant was not interested in engaging in that activity as at the conclusion of the call which occurred at 11.16pm but had indicated she might be prepared to engage in that activity with the accused under the right conditions, in particular, that she chose to engage in the activity and that the accused's wife had knowledge that they were doing so.

43. No invitation was given to the accused by the complainant to attend her premises and he at no time told her he was coming to her premises or sought to correct the impression he had given in the early text messages and phone calls that he was at his own premises, which was quite some distance from the complainant's premises. A number of comments by the complainant in the recorded phone calls left open the possibility that she might, at some later time, be persuaded to engage in bondage activities with the accused.

Complainant’s evidence

44. I turn then to consider the complainant's evidence as to what occurred once the accused arrived at her premises. The accused entered the complainant's premises some time after 11.35pm on 19 May 2018, being the time of the conclusion of the third recorded phone call and had left, as I say, those premises by 12.15am the following day, being the time of the next text messages between them. The complainant said that she went to the front door of her premises in order to let her dog out and that, when she did so, she found the accused standing at the front door.

45. Her evidence was that the accused then entered her premises and that she said something like, "No way." The complainant said she went into the lounge room and the accused pushed her onto the lounge and she asked the accused if he was going to hurt her and the accused responded, "But you like being hurt." The complainant gave evidence that the accused got onto the lounge as well but that she then slid down onto her knees on the floor. Her evidence was that the accused reached and pulled her arms behind her back and pulled out a pair of handcuffs.

46. The complainant's evidence was that she said words to the effect of, "No, no, don't," but she could not get away from the accused because he was too strong. The complainant gave evidence that the accused cuffed both of her hands. One handcuff, she said, was on very tightly but she was able to wriggle her hand out of the other one. Her evidence was that the accused then slapped her twice across the face, causing her to get what she described as "a white flash" insofar as her vision was concerned. The second slap to the face occurred when she said she had her phone out of her pocket.

47. While this was occurring the complainant gave evidence that the accused kept saying, "Are you full of shit?" and that he had to know if she was "full of shit". She said she responded, "I don't know," and kept saying, "No." Shortly after that the complainant gave evidence the accused said he needed a drink, that the accused undid the handcuff on the hand she had not been able to free by herself and she went to the kitchen to get the accused a drink of water. Her evidence was that after the accused drank the water he said he had to do what he had done to see if she was "full of shit". He then said, according to the complainant, that he was going to leave and went to the front door of her premises.

48. Her evidence was that the accused then said he had to see the tapes in the shed, no doubt a reference to the tapes discussed by the complainant in the recorded phone calls. The complainant's evidence was that he kept saying that he had to see the tapes and put his hand on her elbow and effectively forced her to go to where the tapes were kept on a hard drive in a shed on the premises. Her evidence was that the accused had his hand on her as she went to the shed where the tapes were kept. The complainant's evidence was that she kept saying that she did not know if she still had the tapes but she obtained them as she was scared and felt threatened and she perceived that the accused was very angry.

49. Her evidence was that the accused said to her that she had to show him the tapes and they returned to the lounge room and plugged the hard drive into the computer but none of the files on the hard drive would open. The complainant said that when the files would not play the accused said he was going to go, that she was "full of shit". Her evidence also was that the accused told her that he had recorded their phone conversations and threatened to play them to persons she knew.

50. She gave evidence of watching the accused leave her premises but did not hear or see a car leave. She described the accused as smelling of alcohol while he was at her premises. The complainant gave evidence that she did not consent to being handcuffed or slapped and did not invite the accused into her premises. The complainant did not know how long the accused had been at her premises. She recalled that he did later phone her and apologised for what had occurred.

51. In cross-examination the complainant's evidence about the content of the unrecorded call at 9.15pm and that the call made her uncomfortable was challenged and it was suggested that the conversations recorded on subsequent calls were not consistent with what she said occurred during the unrecorded call. I consider, having regard to the text messages that immediately followed the unrecorded call, that those text messages are consistent with the evidence the complainant gave about the content of the unrecorded call.

52. The text message by the accused at 9.53pm gives rise to an inference that something occurred during the unrecorded call which caused him to hang up on the complainant. What then followed was a series of text messages and phone calls from the accused to the complainant to which the complainant did not respond until she eventually sent a text message indicating that she was "sort of" still there. While I accept the subsequent recorded phone calls do not suggest that the complainant sounded uncomfortable about discussing her sexual interests with the accused, they do not, in the overall circumstances here, cause me to have concerns about the evidence she gave as to the nature of the unrecorded phone call and the fact that it made her feel uncomfortable.

53. Her initial unwillingness to continue to engage with the accused after the unrecorded conversation is consistent with her being uncomfortable about what the accused said to her in that conversation. In her cross-examination, similar to her evidence in chief, the complainant had little recollection of how the accused actually entered her premises. She could not recall whether, prior to the accused placing the handcuffs on her, he raised his hand but she was adamant the accused did not have handcuffs in his hand and effectively showed them to her before slipping them on her.

54. The complainant denied a suggestion that, in effect, the accused had simply slipped the handcuffs onto her hands and maintained that the accused had forced her hands behind her back and then placed the handcuffs on her. She denied saying words to the effect of, "All right, whatever you are going to do let's get it over with," and denied that there was some discussion about taking the handcuffs off. The complainant denied the suggestion that she voluntarily went to the shed to get the tapes of her and that the accused remained in the lounge room sitting in a chair while she did so. She also denied that the accused had made no threat to play the recorded calls to other persons she knew.

55. The complainant gave evidence that she believed she had told the police that the accused had told her he was recording the phone calls that night when she went to the police. However, the evidence of Detective Senior Constable Harris was that the complainant had not told him before she made her statement that the accused had told her he was recording her phone calls. I do not consider that inconsistency to be a particularly significant one.

56. Clearly, the complainant was still very distressed when she spoke to the police and would have been focused on giving a description of what occurred in her premises once the accused entered them. The complainant agreed in cross‑examination that, immediately after the accused left her home, she did not use her phone to call the police or anyone. The complainant also maintained that the accused had slapped her that evening. The complainant, in cross-examination, maintained that she thought the accused had been at her premises for about an hour that night.

Phone calls and text messages

57. I turn then to consider the phone calls and the text messages that occurred after the accused left the premises. The accused phoned the complainant at 12.15am on 20 May 2018 and it appears the call was unanswered. Also at 12.15am on 20 May 2018 the accused sent a text message to the complainant which said as follows, "Sorry, I didn't think you'd be like that to me after the conversation." At 1.01am on 20 May 2018 the complainant sent a text to the accused which said, "I'm sorry too." At 1.02am the accused phoned the complainant and the call was recorded. Of significance to the issues in this trial are the following exchanges, in my opinion:

"Accused: Hey, are you okay love?

Complainant: Yeah. Are you?

Accused: Oh, no, I'm not real happy, okay.

Complainant: Okay.

Accused: You know, I'm not real happy because, well, you know how the conversation went and that sort of stuff, okay.

Complainant: I know, but I kept saying--

Accused: All right, look, it doesn't matter. Maybe I didn't get that quite right but somebody who is into that is usually a bit more--

Complainant: I know.

Accused: Okay, you get what I mean?

Complainant: I know, I know, I know.

Accused: And when I realised, and when I realised you're not--

Complainant: I know you--

Accused: I stop, okay, you know that.

Complainant: I know and I, and respect that and I--

Accused: All right and I'm sorry I made you feel bad."

58. Later in the call there is the following exchange:

"Accused: See I sort, I though you, from part of our, your conversation it was still that, oh, yeah, I might like that sometimes you know that sore(sic) of the impression I got, you know.

Complainant: I know I said that and I think it, don't, I thought that, you know, but I don't, I guess I was just--

Accused: You freaked out. I know. I know you freaked out.

Complainant: I know."

59. At another point in the call the accused said:

"All right, look, sorry if I upset you.

Complainant: No, no.

Accused: Once I realised where you were at I left, okay.

Complainant: I know."

60. The accused in that call states that he had drunk half a bottle of vodka before he had left his home to go to the complainant's which corroborates, to some degree, the complainant's evidence that she thought the accused was drunk when he was at her premises. At 1.27am the accused sent a text message to the complainant which said, "I'm home. Hope you feel better." There was a further short recorded call between the accused and the complainant at 7.59am but there is nothing in that call of particular relevance to the issues in this trial.

Evidence of complaint

61. I turn then to the evidence of complaint by the complainant. The complainant gave evidence that the next morning she cancelled arrangements she had made to have her son and her sister's children stay at her premises that day and made arrangements to see her sister at her mother's home. She eventually went to her sister's premises and told her sister what had happened and her sister took her to the police. The complainant's evidence was that she told her sister that she had told the accused on the phone some of her secrets and he had told her some of his, that the accused had just come into her premises, cuffed her and hit had and had tried to take her phone from her when she tried to call the police.

62. The complainant's sister gave evidence that the complainant had told her on the phone that someone she trusted had hurt her and she was scared and frightened, that the complainant went to the sister's premises and when the complainant arrived she was very upset and told her that she had shared secrets with Harry from the tip. Her sister gave evidence that the complainant had told her that she had spoken with the accused on the phone, that he had sounded drunk, that she went to the door as her dog had been sniffing around it and that the accused was standing there. Her evidence was that the complainant said that she said, "No, no," and she nodded when her sister asked her if she had been hurt. The complainant was then taken by her sister to the police.

63. Given the timing of the complaint, the complainant's distress at the time of the complaint and its consistency with the evidence the complainant gave at the trial, I have given myself both limbs of the complaint direction, that is, that the evidence of complaint is relevant to my assessment of the credibility of the complainant and as to whether the events about which she gave evidence actually occurred. Of course, I have had regard to the fact that, simply because someone says on more than one occasion that something happened does not mean that it did.

64. I turn to the evidence of the injury to the complainant's wrist. The complainant gave evidence that one of the handcuffs had been very tight on one of her wrists. Exhibit 6 consists of photographs showing scratches to the wrist of the complainant which were taken by the police, which corroborates the complainant's evidence in that regard.

The evidence of the search warrant executed at the accused premises

65. On 23 May 2018 the police executed a search warrant at the accused premises. A pair of handcuffs and a number of items of clothing were seized. The accused ultimately attended his home and told the police of the recorded phone messages and his phone was seized and the recordings downloaded.

66. I turn to the calls between the accused and his wife on 23 May 2018. There are also two recorded phone calls between the accused and his wife recorded on 23 May 2018. In the call at 12.26 that day the accused tells his wife that he had discussed bondage "stuff" on the phone with the complainant and that "something was offered to" him which his wife would never do. He told his wife in that call:

"Once we were in and we were about to start it I realised, hang on a minute, something's not right here because I could tell on her face like, oh - like this was about five minutes or so after I got there, right, that something's not right and that's when I realised, 'Whoa, hang on a minute. Pull up, Harry. She's not wanting this,' and nothing had happened. Not a thing had happened, okay. Nothing had happened."

The accused's record of interview with the police

67. The accused was electronically interviewed by the police on 23 May 2018. Little of relevance was said by the accused in the interview. At answers 120 to 121 he said, "Except I've got to add this, that I did nothing that I wasn't invited to." At answer 251 the accused admitted he had been to the complainant's house on the previous Saturday night. At answer 359 the accused admitted that the handcuffs the police had seized from his premises were his.

Other relevant principles of law

68. I set out earlier in this judgment the legal elements of the two counts which the Crown must prove beyond reasonable doubt before I am entitled to return verdicts of guilty on the two counts. I also referred to the complaint direction I have given myself in relation to the complaint evidence. In terms of what actually occurred inside the complainant's premises that evening, I have scrutinised her evidence carefully as she is the only witness in the Crown case who gives evidence of what is said to have occurred. I have also had regard to s 293A of the Criminal Procedure Act although, overall, I do not consider there are any significant inconsistencies brought out in her evidence.

68. There is evidence that the accused had been drinking that night before he attended the complainant's home. Both counts are offences of specific intent and fall within s 428B of the Crimes Act and I have had regard to the evidence of his level of intoxication in assessing whether I am satisfied that he formed the intent required in the two counts. I have drawn no adverse inference against the accused because in his interview with the police he declined to answer a number of questions, thereby exercising his right to silence. I have drawn no adverse inference against the accused because he did not call or give evidence in the trial and I have given myself a full direction in accordance with Azzopardi v The Queen (2001) 205 CLR 50 in relation to the accused's right to silence.

My findings

70. In relation to what occurred once the accused arrived at the complainant's premises, I found the complainant to be a compelling witness. I also consider that, in a number of respects, she is implicitly supported by other evidence. I am satisfied beyond reasonable doubt that the complainant was completely unaware that the accused was driving to her premises that evening. It is an overwhelming inference from the phone calls that took place before the accused arrived that he had made a deliberate decision not to tell the complainant that he was coming to her home in order to surprise her in the sense of seeking to confront her about the possibility of engaging in bondage sexual activity.

71. In relation to the complainant's evidence that the accused forced her hands behind her back and put the handcuffs on her hands, I note that in the call at 11.16pm the accused talked about wanting to put the complainant's hands behind her back when engaging in bondage activity with her. That suggestion by the accused in that call, in my opinion, implicitly supports the complainant's account as to how the handcuffs were put on her in that the accused did what he said in the call he wanted to do.

72. In terms of the accused forcing the complainant to obtain the recordings of her engaging in bondage activity and playing them to him, the complainant, while raising those recordings in the recorded telephone calls, made comments suggesting that, while she might one day be prepared to play them to the accused, she was not prepared to do so as at 19 May 2018. Similarly, while the complainant in the recorded phone calls indicated that, under certain specific conditions, which included, effectively, with the accused's wife's knowledge, she would be prepared to engage in bondage activity with the accused, those conditions, as far as she was concerned, did not exist as at 19 May 2018.

73. I have already mentioned the complaint evidence which, in my opinion, was relatively prompt and generally consistent with what she said happened when the accused arrived at her premises. I also note the evidence of the scratches to the complainant's wrist which support her evidence as to one of the handcuffs being very tight on her. The content of the recorded telephone calls between the accused and the complainant, together with the accused's excited tone of voice, establishes to my satisfaction that the accused was intending to engage in bondage sexual activity with the complainant at her premises that evening. The comments made by the complainant in the recorded phone calls are consistent with her not consenting to engaging in that activity except under specific conditions which did not exist at that time.

74. For the reasons I have given, I am satisfied that the complainant gave a truthful and accurate account of what occurred when the accused entered her premises that evening. I am satisfied beyond reasonable doubt that she did not consent to the activity that occurred once the accused had entered her home. I also accept that the accused forcibly placed handcuffs on her, slapped her and forcibly escorted her to a shed on the property to retrieve hard drives believed to have contained video footage of the complainant engaging in bondage activities and forced her to attempt to play them to him for his sexual gratification.

75. The more difficult question on both counts is whether the Crown has established beyond reasonable doubt the requisite intention required to prove each count. I set out earlier in this judgment the intentions the Crown must prove for both counts. In relation to count 1, I am not satisfied beyond reasonable doubt that the Crown has proved that, at the time of entry into the complainant's premises, the accused intended to indecently assault the complainant.

76. As I said a moment ago, I am satisfied beyond reasonable doubt the accused intended to engage in bondage activity with the complainant when he entered the premises. I am not satisfied that he had an intention to do so knowing that the complainant was not consenting or being reckless as to whether the complainant was consenting. I am not so satisfied for the following reasons. While on the recorded calls there are things said by the accused which suggest that he would force the complainant to do certain things if he had an opportunity, those comments must be seen in the context of a discussion between two persons who at that time considered themselves to be friends, who trusted each other and who were discussing bondage activities.

77. From their discussions it is clear that, in the role plays they discussed, one of the parties would be the dominant one and one the submissive and that an element of force would be used by the dominant participant. When viewed in their overall context, the comments by the accused in those calls do not satisfy me that he had an intention at the time that he entered the complainant's premises to touch her in a sexual way without her consent or to be reckless as to whether she consented.

78. There are other pieces of evidence here that also cause me to have a reasonable doubt about whether the Crown can prove the required intent in count 1. I accept that the accused forcibly placed the handcuffs on the complainant and did so by putting her hands behind her back and that he slapped her to the face but, clearly, given the content of the recorded calls, the accused wanted to engage in far more sexually explicit conduct with the complainant than that but desists from doing so and removes the handcuffs from the complainant.

79. In terms of why he did desist from doing so, in my opinion there is a reasonable possibility that it was at that point that he realised the complainant was not consenting to the activity that was occurring and he desisted and took the handcuffs off her. This is, in effect, what he said to her in the recorded call at 1.02pm on 20 May 2018 that, as soon as he realised she was not "into that", he stopped. The complainant agreed with that proposition when the accused said it to her in the call. It may be that she did so in order to placate the accused because she was fearful that he may still be nearby; however, on the face of it, it is consistent with the accused desisting from engaging in further conduct of a specifically sexual kind with the complainant and removing the handcuffs because he realised the complainant was not consenting.

80. That evidence causes me to have a reasonable doubt about whether the Crown has proved to the required standard the accused's intention required for count 1. To some degree, the comments made by the accused to his wife in the recorded call at 12.26pm on 23 May 2018 are consistent with what he said in the earlier call with the complainant, although I place less weight on that conversation as it occurred at a time when the accused knew the police were investigating him and it was to his wife. For the reasons I have given, I am, therefore, not satisfied of the accused's guilt in relation to count 1 and I return a verdict of not guilty.

81. In relation to count 2, it is apparent from my findings in relation to count 1 that, as at the time the accused removed the handcuffs from the complainant, he was aware that the complainant was not consenting to any conduct directed towards his sexual gratification.

82. From that point on, I am satisfied beyond reasonable doubt that what occurred is what the complainant gave evidence of, that is, that the accused, in effect, held her by the arm and forced her to go to the shed and retrieve what was thought to be the recordings of her engaging in bondage activity. I am also satisfied beyond reasonable doubt that the accused forced her, without her consent, to return to the lounge room of the premises and to attempt to play too him those recordings. I am satisfied he did so because he was angry with the complainant because she would not engage in bondage activities with him.

83. It is an overwhelming inference from the recorded phone conversations and the complainant's evidence that he forced the complainant to obtain the hard drives thought to contain the recordings of her engaging in bondage activities and play them to him for his own sexual gratification. In holding the complainant's arm and forcing her to go to the shed and obtain the hard drives and in forcing her to attempt to play the recordings to him, the accused has detained the complainant.

84. I am, therefore, satisfied beyond reasonable doubt that, from the time that the accused had taken hold of the complainant's arm and forced her to go to the shed and obtain what was believed to be the recordings of her engaging in bondage activities, he has detained her in that she was not free to leave his company and he was interfering with her liberty. I am satisfied that he detained the complainant from that point until he left her premises. I am satisfied beyond reasonable doubt that he detained her with the intention of obtaining an advantage, being sexual gratification, being the sexual gratification he sought to obtain from the watching of what he understood were recordings of the complainant engaging in bondage activities.

85. I am satisfied beyond reasonable doubt that the complainant did not consent to be detained from the point that the accused has taken hold of her arm and I am satisfied beyond reasonable doubt that, from that point of her detention, the accused knew that she was not consenting. From the point the accused removed the handcuffs from the complainant he knew that the complainant was not consenting to any actions which were directed towards his sexual gratification. This included the obtaining of the hard drive and the attempt to play the recordings on it.

86. I am not satisfied beyond reasonable doubt that the actual bodily harm, being the scratching of the complainant's wrist, occurred during the period of detention when the accused knew the complainant was not consenting as I have found that the scratches occurred prior to the removal of the handcuffs. It follows from the findings I have made beyond reasonable doubt that I return a verdict of not guilty on count 2 on the indictment but guilty of the non‑aggravated form of the offence, being an offence under s 86(1) on the basis that I have explained.

Orders

87. Not guilty of Count 1 on the indictment.

88. Not guilty on Count 2 on the indictment but guilty of the non‑aggravated form of the offence.

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Amendments

07 August 2019 - 7/08/2019 - removal of repetition of citation in headnote

Decision last updated: 07 August 2019