R v L-D - [2018] SADC 126

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v L-D
Criminal Trial by Judge Alone
[2018] SADC 126
Reasons for the Verdict of His Honour Judge Millsteed
29 November 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - CONSENT - GENERALLY
Trial by judge alone - accused charged with one count of rape contrary to s 48(1) of the Criminal Law Consolidation Act - case of 'oath against oath' - no dispute that the accused had sexual intercourse with the complainant - sole issue whether or not sexual intercourse was consensual - consideration of whether or not alleged victim's evidence of experiencing episodes of dissociation was admissible.
Verdict - Not guilty.
Criminal Law Consolidation Act 1935 (SA) s 5, s 46, s 47, s 48(1); Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) s 34(3), s 34(4), s 34(6), s 34M, referred to.
Kilby v The Queen (1973) 129 CLR 460; Jones v R (1997) 143 ALR 52; R v S, D D (2010) 109 SASR 46; R v Usher (2014) 119 SASR 22; R v Jones [2018] SASCFC 80, unreported delivered 15 August 2018; R v Kooyman (1979) 22 SASR 376; R v Byczko (No 2) (1997) 17 SASR 460; R v Baltensperger (2004) 90 SASR 129; Woolmington v DPP [1935] AC 462; Moffa v The Queen (1977) 138 CLR 601; Howe v R (1980) 32 ALR 478; He Kaw Teh v The Queen (1985) 157 CLR 523; R v Calides (1983) 34 SASR 355; Douglass v The Queen (2012) 290 ALR 699; DPP v Morgan [1976] AC 182; R v Brown (1975) 10 SASR 139; R v Radford (1985) 42 SASR 266; R v Falconer (1990) 171 CLR 30; Osland v The Queen (1998) 197 CLR 316; R v Runjanjic (1991) 56 SASR 114, considered.

R v L-D
[2018] SADC 126
Introduction

The accused, A L-D, was tried before me sitting without a jury on one count of rape, contrary to s 48(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).[1] The particulars of the offence contained in the Information alleged that on 29 September 2013, at Blackwood, the accused engaged or continued to engage in sexual intercourse with the complainant, MM, by inserting his penis into her vagina without her consent, knowing, or being recklessly indifferent to the fact, that she was not consenting. For the reasons set out herein, I find the accused not guilty of the charge.
[1] The accused elected to be tried by judge alone pursuant to s 7(1) of the Juries Act 1927 (SA).
Overview
On 27 and 28 September 2013 members of a Melbourne-based gospel musical group (‘the band’) performed at the national annual conference of a church of which MM was a member. The accused was a member of the band who were of Congolese heritage. The accused and other members of the band stayed at the complainant’s Blackwood home on the nights of the conference. The complainant and the accused slept on separate bedding on the lounge room floor.
The complainant testified that in the early hours of Sunday 29 September 2013 she woke to find the accused kneeling on the floor next to her. She alleged that he made unwanted sexual advances and then raped her by inserting his penis in her vagina without her consent. The accused gave evidence at trial. He admitted having sexual intercourse with MM but asserted that the act was consensual. As a result of the act of sexual intercourse MM fell pregnant. She gave birth to the child in June 2014. The case was essentially ‘oath against oath’.
The Evidence
The prosecutor, Ms R Shell, called three witnesses namely the complainant, ETD (a member of the band) and AB (a friend of the complainant). Defence counsel Mr A Allen called the accused. No other witnesses were called by the defence. The oral evidence was supplemented by the parties’ tender of documentary exhibits, including a statement of agreed facts (Exhibit P6).
Background
At the time of the relevant events, the accused was 32 years of age, single and resided in Melbourne. He was born in the Congo but relocated to Mozambique when he was three years old. He came to Australia in 2007 and became an Australian citizen in 2011. MM was 32 years of age and lived at Blackwood with her two daughters, aged six and 13 years, and her son, aged 14. MM and the children’s father had separated but shared custody of the children. The children stayed with their father every second week.
On Friday 27 and Saturday 28 September 2013, MM’s church held its national conference in a hall behind a church in the eastern suburbs of Adelaide. The accused’s band travelled from Melbourne by bus to attend and perform at the conference. Married members of the band were accompanied by their wives and children. The band and its entourage consisted of 19 people.
The conference organisers had originally planned for the band and their families to stay in a youth hall at Blackwood. However, on the opening night, MM suggested to the conference organisers and senior members of the band namely ETD (a church minister) and another male, AA, that the hall would be too cold and uncomfortable. She offered to allow members of the band and their families to stay at her home because her children were staying with their father that weekend. The offer was accepted. Arrangements were made for the remaining members of the entourage to stay at another house in the Adelaide Hills.
After the conference concluded on the Friday night, the band travelled by bus to their accommodation. ETD, AA and their wives and children stayed at MM’s home. So did the accused. The remaining members of the band and their families were taken to the other house. MM gave ETD and his wife her bedroom, and placed AA and his wife, and two of their children, in the second bedroom. Four female children were given the third bedroom and two male teenagers the fourth bedroom. As mentioned, the accused and MM slept on the lounge room floor. It is common ground that MM asked the accused if he was comfortable sleeping in the same room as her because she did not want to cross any ‘cultural barrier’ and that he expressed no objection.
The lounge room was situated at the front of the house and had double glass panelled doors which provided access to a hallway which extended from the front door to the rear of the house. MM’s bedroom was located at the front of the house directly opposite the lounge room. The lounge room had polished timber floorboards covered by a rug, approximately three metres square. The rug occupied a central position in the lounge room and was surrounded by furniture including a sofa and two large single lounge chairs. The accused and MM slept on the rug. The accused slept in his sleeping bag and MM slept under a sheet and blanket on a mattress which had been removed from a swag.
The accused and MM chatted for about two to three hours in the lounge room before falling asleep on their bedding. They discussed a range of topics including their respective jobs, MM’s love of Africa and interests they shared. They further discussed the possibility of going for a drive that weekend in MM’s new car. There was a minor conflict in their evidence concerning the details of that discussion. According to the accused, MM proposed that the two of them should go for a drive. However, MM said that she suggested that the two of them should go for a drive with other members of the band.[2]
[2] Trial transcript (T) 63.
The accused admitted that he was interested in MM. He claimed that at one point he leant over from his sleeping bag and kissed MM, and that she kissed him back.[3] MM did not suggest in her evidence-in-chief, and it was not put to her in cross-examination, that any such kissing took place on the Friday night. I find that the accused was probably mistaken on this topic and that he has included in his account kissing that occurred on the following night.
[3] T 158.
Saturday 28 September
On the following day, MM was invited to accompany the band and their families on a bus trip to the northern suburbs where they had lunch at the home of a pastor. MM’s son who had returned home for the day joined them on the trip. Following lunch, the group returned to MM’s home.
Later that evening, MM and her son attended the second night of the conference. When the conference ended the band and their families travelled by bus to MM’s home arriving there at about 10.30pm. MM joined them a short while later, after taking her son to his father’s home where he spent the night with his siblings.
It was common ground that MM and the accused interacted in a friendly manner throughout the day. MM testified that from her perspective she was not romantically interested in the accused. The accused, however, deposed that ‘something was building up’ between them.[4] ETD considered that MM and the accused were developing ‘a closeness’ of which he disapproved because they had only just met.[5]
[4] T 159.
[5] T 126.
The meeting
MM testified that a short while after she returned home, the male members of the band held a meeting in the bus while the women and children remained inside the house. MM said that the meeting between the men did not finish until about midnight. Following the meeting three of the men S, P and M left and travelled to another house where they stayed the night. MM said that S, P and M came into the house before they left and invited the accused to go with them. He declined. A short while later the people who stayed at her house went to bed.[6]
[6] T 27-28.
ETD and the accused gave evidence of the meeting in the bus.[7] They both testified that ETD discussed his concern that the accused appeared to be getting too close to MM. ETD and other persons suggested that the accused should go with S, P, and M to spend the night at the other house. The accused resented the criticism and insisted that he would stay the night at MM’s home. After the meeting the men went inside the house where S, P, and M requested the accused to go with them. When he refused, they left and the people who remained at MM’s house went to bed. The bus remained at MM’s house and S, P, and M travelled to their accommodation by other means.
[7] T 126-127 (ETD), T159-160 (Accused).
Sleeping arrangements
The people who had stayed at MM’s house on the Friday night also slept there on the Saturday night. However, because it was late several additional people chose to stay at MM’s home rather than drive to the premises where they had stayed the previous night. The accused and MM again slept in the lounge room in the positions, and on the bedding, previously discussed. One of ETD’s children (L) also slept in the lounge room having fallen asleep in one of the lounge chairs while the men were having their meeting in the bus. ETD testified that L was 22-23 years of age at the time.[8] The other people who spent the night at MM’s home slept in the bedrooms.
The incident
[8] T 121-122.
Complainant’s evidence
MM testified that at about 1.00am (29 September) she lay down on the mattress and covered herself with the sheet and blanket with the intention of going to sleep.[9] At the time she was wearing a blue singlet, loose fitting pyjama shorts and a G-string.[10] There were no lights on inside the house at the time.[11]
[9] T 29.
[10] T 25-26; Exhibit P1 (Photographs of singlet and G-string); Exhibit P7 (pyjama shorts).
[11] T 31.
A short while earlier the accused left the house through the front door to make a call on his mobile phone. MM sent him an SMS text message on her mobile phone asking if he had a key to get back inside the house. She was concerned that if she fell asleep that he would be locked out. MM said that he subsequently sent a return text message stating that the front door was unlocked. She replied ‘goodnight’ and went to sleep.[12]
[12] T 30-31.
The statement of agreed facts (Exhibit P6) contained a table of calls, based on call charge records, that were exchanged between MM’s mobile phone and the accused’s two mobile phones for the period 28 September 2014 to 12 October 2014. According to the table an SMS message was sent from MM’s mobile phone to one of the accused’s mobile phones at 2.23am and a return SMS message was sent from that phone to MM’s mobile phone at 3.15am. There was no record of a third SMS message. The timing of the SMS messages indicates that MM must have sent the message asking the accused if had a key at 2:23am and that he replied 52 minutes later. This is consistent with the accused’s evidence that he spent about one hour outside the house.
MM testified that she subsequently woke up startled when she realised that the accused was kneeling on the floor next to her head. She was unable to see what he was wearing because the room was in almost total darkness. All she could see were ‘shadows’ as a result of light filtering into the lounge room through the front window from a street light outside. MM said that the accused suggested that they go for a drive. She told him that it would not be a good idea because they were tired. She also told him that she was concerned that the other members of the band might regard such conduct as ‘deceptive’.[13]
[13] T31-33.
MM testified that the accused then leant over and kissed her on the mouth. She immediately put her hand on his chest, pushed him away and said ‘no’. They both stood up and MM said to him: ‘I like you, but I am not interested in that sort of relationship and I think we actually need to go to bed now’. The accused then put his left hand around her waist, placed it on her back and pulled her close to him. He then kissed her on the mouth and began rubbing her vagina on the outside of her pyjama pants with his right hand. MM then turned her head away so that she was looking over one of his shoulders. She then said to him, ‘No we can’t do this. We need to go to bed. It’s not right. This is not what I want to do’.[14]
[14] T 36.
MM said in-chief that she repeatedly told the accused that he needed to stop until she ‘blanked out’. She explained what she meant by that expression:[15]
I had been in a relationship where, like previously, where things would happen and I didn’t fight back, I didn’t say no and I blanked out. So, I allowed things to happen and let it go. So in this instance it was like being back there and I blanked out again until, you know, I realised that I was kissing [AL-D] back. I had responded to him and again stopped, came to my senses if you like for want of a better term and said again ‘No, you need to stop’ and I was then able to push him away. I turned around and stepped onto the head of my swag so that I was facing away from him.
(In relation my underlining, it should be noted that MM said in re-examination that she kissed the accused several times.[16])
[15] T 36.
[16] T 101.
In cross-examination, MM suggested that she lapsed into a dissociative state when she blanked out. The relevant passage was as follows:[17]
Since this time, I have had a lot of counselling and psychology appointments, through which I have learned what I’m describing to you here is called disassociation (sic). So it is where I, in my mind go elsewhere and for me, my elsewhere is just a blank place so that I am not fully present with what is happening. It’s something that I have been doing a lot throughout my life, having experienced various abuses throughout my life, and so I have come to understand this term to be disassociation (sic) and I believe that is what I was doing at the time when I describe blanking out or feeling fuzzy in my statement.
[17] T 72-73.
MM testified that after she turned away from the accused that he came up behind her and put his right arm around the front of her body. He then grabbed her right breast, kissed the left side of her neck and slipped his left hand inside her pyjama pants and underwear. She said that he then inserted his fingers into her vagina and moved them in and out. MM claimed that that she said to the accused, ‘You really can’t be doing this’. He then remarked: ‘Your body is telling me something different’. She replied: ‘Yes it is, and you need to stop’.[18] MM agreed in cross-examination that she became sexually aroused as a result of the accused touching her vagina but insisted that she did not want to have sexual contact with him.[19] According to MM, she then ‘dropped to the floor’ and sat on her mattress ‘because it was the easiest way to get his hands out’.[20]
[18] T 37.
[19] T 97-98.
[20] T 37.
MM said that she then heard the accused rustling through his bags of clothing and assumed he was changing into sleep wear. The accused subsequently stood near MM who had remained sitting on the mattress. The accused then took hold of her left hand and placed it on his erect penis. He then made her masturbate his penis while holding it close to her face. She then pulled her hand away and said ‘No. This is not part of my story. I’m not doing this. We need to go to sleep’. She then lay down and covered herself with the sheet.[21]
[21] T 38-40.
In cross-examination, MM agreed that she gave a written statement to Constable Watts on 27 October 2013 (first statement to police) in which she suggested that she also went into a dissociative state when the accused caused her to rub his penis. In the statement she said that when her hand was placed on the accused’s penis that she felt ‘fuzzy again’ which she believed ‘was a self-preservation technique that [she] had developed from a previous relationship which was abusive’. She said that the statement was true and refreshed her memory of the feelings she experienced at the time.[22]
[22] T 73-74.
MM testified that after she rubbed the accused’s penis for a while, he got down onto the floor and under the sheet. He then got on top of her, effectively pinning her to the floor. The accused then slipped one of his hands inside one leg of her pyjama pants, moved her G string to one side and touched her vagina.[23] MM pushed against his chest with her left hand and said to him:[24]
No you can’t do this … There’s a child in the room. I cannot have a child wake to see this sort of thing. This is not part of my story. You need to stop.
[23] T 41.
[24] T 42.
MM said that she referred to L being a child because at the time she believed that L was only 15-16 years of age.[25]
[25] T 59.
After the accused had placed a hand inside her clothing she unsuccessfully attempted to slide or wriggle out from underneath him. He subsequently removed his hand from her pyjama pants and inserted his penis into her vagina through the leg of her pyjama pants. MM said that she continued to tell the accused to stop and told him that she had just ovulated and did not want to get pregnant.[26] MM deposed that she spoke to the accused in a quieter than normal volume because she did not want to wake up L.[27] At times she was unable to speak at all because he had pressed his mouth against hers. MM said that the accused repeatedly said, ‘just wait’ and continued to have intercourse with her until he ejaculated. He then got up and went to bed. They subsequently went to sleep.[28]
[26] T 42-44.
[27] T 44.
[28] T 44.
In re-examination, MM elaborated on her purported episodes of dissociation. She said that that there were two occasions when she felt that she was in such a state. The first was after the accused had pulled her close to him, touched her vagina and kissed her whilst they were both standing. In relation to that event, MM said: ‘my kissing back is in that moment of feeling dissociated’. She added, ‘the second time is when he was holding my hand on his penis’.[29] MM said that she did not believe that she was in a dissociative state when the accused had sexual intercourse with her. She gave the following reasons for that belief:[30]
No, I don’t believe so because I was fully aware at that point that there was a child – well, I mean, we’ve shown obviously she wasn’t a child, but I thought she was a child. My job at that time was to protect children and when [the accused’s] penis was inside me, it was a point at which I was very aware it’s something that a child cannot wake to see …
[29] T 100.
[30] T 102-103.

In the following passage MM elaborated on how she feels when experiencing an episode of dissociation:[31]
QIn the moments that you’re feeling in this particular state, do you have any control over what you’re are doing?
ANot control as in what I’m doing being at the forefront of my mind. It’s – it’s a feeling of actually removing myself from the situation, where emotionally and mentally I go somewhere else and I can’t describe it much better than that, than to say I take myself out of there so that I don’t have to be part of, in presence of mind, as part of what’s going on.
QAnd when the disassociation period finishes, do you become aware of what you’re doing?
AYes, it’s more of a – the action comes to the forefront of the mind, like, you know,’ I want a drink, I’m going to reach for the cup’, so that ‘I’m going to’ is absent during that dissociative time, and then the end of it is coming back to present of mind and going ‘I’m going – I can choose now’. It’s at the front of my mind I’m going to do it.
[31] T 100-101.
Before leaving MM’s evidence it is appropriate to further discuss her evidence that she told the accused that she did not want a child (L) to wake up and see what was happening. For that reason, she also did not protest loudly to the accused’s conduct. The defence argued that MM’s evidence on this topic was implausible because L was in fact 22-23 years of age at the time. The defence contended that MM could not have genuinely believed that L was 15-16 years of age, as she testified. In support of that contention, the defence relied on a photograph of L that was one of several photographs taken at the conference on Sunday 29 September 2013.[32]
[32] Exhibit D3-photograph 3.
In my opinion, L appears in the photograph to be about her true age. However, it is not uncommon for people to make mistakes when estimating the age of another person. Estimating the age of a person of African descent may be particularly difficult for a non-African. It should also be borne in mind that MM’s belief may have been based not merely on L’s appearance but on other factors such as her demeanour and level of maturity, in respect of which there is no evidence. Nevertheless, I find it difficult to accept that MM could have genuinely thought that L was a ‘child’ or a teenager as young as 15 to 16 years of age.
The defence further emphasised that in MM’s written statement to Constable Watts, dated 27 October 2013, there is no mention of her expressing to the accused concern about the presence of a child in the room. In cross-examination, MM denied that she had failed to mention this to Constable Watts. Her evidence was as follows:[33]
QIs that something that you have remembered today?
ANo, it’s not. I had described that to the police officer when I made the statement, and she took down a number of them and said there was no need to list all of them because if it came to court, the opportunity to say all of it, she only needed to record some of the things that I said because I had made reasonable attempts to say no.
QSo is it your evidence that the police officer who was taking the statement told you that there was no need to record what you said to the person that was raping you, on your version?
ANot no need to record it, however that some of what I’d said – because I’d said a lot of things, like the same thing in a different way, she was recording a number of them but expressed that she didn’t believe I needed to note all of them expressly.
[33] T 75-76.
MM’s suggestion that Constable Watts had indicated that it was not necessary to record in her statement that she had expressed concern to the accused about a child being in the room is difficult to reconcile with the following agreed facts, set out in Exhibit P6:
10.On 27 October 2013, Constable Kerrie-Anne May Watts took a statement from the complainant.
11.Constable Watts recalls taking a statement from [MM] but does not recall the specifics of how that statement was taken and what was said during the statement taking process.
12.The standard practice for Constable Watts when taking a statement is to type directly into a document as the person is giving a narrative of what occurred.
13.Constable Watts does not type the entire narrative verbatim but an account in the person’s words is taken from start to end.
14.In the context of a rape matter, if a complainant was to give evidence of what she said during the course of the alleged rape, Constable Watts’ standard practice is to include word for word what was said as part of that conversation between the complainant and an accused.
15.At the conclusion of taking a statement, Constable Watts’ general practice is for the person to check the statement that has been typed prior to signing it. (my underlining)
Police officers taking statements from witnesses are not immune to making mistakes. However, I do not accept that Constable Watts deliberately omitted MM’s allegation that she told the accused that she was concerned about L’s presence. I find that this was a fresh allegation made at trial. The fact that it was first made at trial does not necessarily mean that it was false. However, the lateness of the allegation coupled with my rejection of MM’s assertion that Constable Watts deliberately failed to record it in her statement serve to undermine MM’s credibility and reliability to an extent.
Accused’s evidence
The accused testified that after S, P and M left MM’s home to travel to their accommodation that he spoke to MM in the lounge room for a while. During the conversation MM told him that she was planning to go to Melbourne on the following weekend. In cross-examination MM agreed that such a conversation may have taken place. The accused said that he then left the house through the front door and returned to the bus which was parked outside to make a phone call to his parents in the Congo. Before he exited the house, MM told him to make sure that he did not lock himself outside.[34]
[34] T 161-162.
The accused said that he remained outside for about one hour. After speaking to his parents, then he got undressed in the bus and put on his flannelette pyjamas. He then went inside and joined MM in the lounge room. The house was in darkness and, as far as he was aware, MM was the only person awake at the time. He said that he was unaware that L was asleep in the lounge room at the time. The accused testified that his sleeping bag and MM’s mattress were positioned close together on the lounge room floor.[35] When he got onto his sleeping bag MM asked if he had locked the front door. He replied ‘yes’. The accused then suggested that it was too late for them to go for a drive. She agreed. They then discussed going for a drive together when MM went to Melbourne.[36]
[35] T 162-163.
[36] T 163-164.
The accused testified that he talked to MM for a while and then leant over and kissed her. She placed one of her hands behind his neck and kissed him back. The accused then caressed her breasts and legs and placed one of his hands inside one leg of her pyjama pants and fondled her vagina. She responded by rubbing his chest and touching his penis. After about 20 minutes of foreplay, he lay on top of MM between her legs and exposed her vagina by pulling one leg of her pyjama pants and underwear to one side. He then inserted his penis into her vagina and continued to have intercourse for about 10 minutes until he ejaculated. He then kissed MM and returned to his sleeping bag. The two of them then went to sleep.[37]
[37] T 164-167.
The accused said that MM gave no verbal or physical indication that she did not want to have sexual contact with him. He denied that she expressed concern about getting pregnant and denied saying to MM ‘You’re telling me no, but your body is telling me something different’ or words to that effect.[38]
[38] T 168-169.
I will further discuss the conflicting accounts given by MM and the accused in relation to the incident, and set out my findings, later in these reasons.
Coffee table
Before I leave the evidence relating to the events in the lounge room it is appropriate to mention a conflict in the evidence relating to the position of a coffee table in the lounge room. MM deposed that on both the Friday and Saturday night, her bedding was separated from the accused’s bedding by a coffee table.[39] However, the accused testified, as mentioned above, that his sleeping bag was positioned close to the mattress upon which MM slept. This allowed him to lean or roll over from his sleeping bag in order to have sexual contact with MM. As I understood the accused’s evidence, the coffee table was positioned on the rug but towards one side of the room.[40]
[39] T 22-23.
[40] T 154-155.
ETD also gave evidence on this topic. He said that on the Friday night he got up at about 3.00am to go to the toilet and walked down the hallway past the doors to the lounge room. He looked inside the lounge room because he had heard MM and the accused talking. In chief he said: [41]
I saw [the accused] in the lounge on the floor with [MM] around approximately 3 am when I was going to the toilet … they were talking, there was a table between them, so [MM] was on the other side, so that’s what I saw. I heard the conversation – I didn’t hear what they were talking about, but I heard they were talking. I was half asleep. I went to toilet, I came back, just then I went to my room.
[41] T 114.
In cross-examination, ETD reiterated that at the time he made his observations, he was half asleep and it was dark. He conceded that he was possibly mistaken about the location of the coffee table:[42]
QI am going to suggest to you that you are mistaken about that [position of coffee table], that the table wasn’t in between them, that it was off to the side. Do you agree that that’s a possibility?
ANot sure. I saw a table, I saw a table, I’m not sure, what I remember it might be a mistake, but I saw a table.
[42] T 124.
I am not satisfied that the coffee table separated MM’s bedding from the accused’s bedding. ETD conceded that his evidence was possibly wrong and the accused’s evidence on this topic was no less plausible than MM’s.
Sunday 29 September
On the Sunday morning, after breakfast, MM and the band attended a service at MM’s church at Blackwood. MM drove her motor vehicle to the church and the band travelled in their bus. Following the service, the band returned to MM’s home and collected their belongings. They then drove back to Melbourne in the bus.
It is common ground that on the Sunday MM did not discuss the alleged rape with the accused or anyone else. In chief, MM gave several reasons for failing to make a complaint on that day:[43]
QDid you tell any of the other members of the … group the next morning what had happened between yourself and [the accused] that previous night?
ANot on the Sunday morning because there wasn’t an opportunity. I don’t believe that I was ready to tell anyone either emotionally. However, on the Sunday morning, because things were so busy in preparing to go to church, there wasn’t an opportunity to tell any of them privately because there were so many people, and once church and finished it was a very quick gather the things and head back home because it was late in the day, it’s a long drive, and so I didn’t get an opportunity then either.
[43] T 48 (see also Re-XN T 98-99).
The accused suggested in his evidence that his interaction with MM on the Sunday was a continuation of the relationship they had developed over the weekend. He testified that shortly before he got on the bus at MM’s home to leave for Melbourne, she told him that she would be coming to Melbourne on the following weekend and that she wanted to be open about their relationship. He agreed with her.[44] MM disputed that she told the accused that she wanted to be open about their relationship and painted a different picture of the nature of her interaction with accused on the Sunday. According to MM, she tried to steer clear of the accused but reluctantly interacted with him at times to avoid arousing suspicions that something had happened between them.[45] In cross-examination, she said:[46]
I had been talking with him the whole weekend and I didn’t want to have to explain to people at that point in time in the middle of a church of over 100 people, why I wasn’t talking to him, so I acted as natural as possible. If there were times where we needed to stand together, then so be it, grin and bear it, and move on – I can move away as soon as possible.
[44] T 171.
[45] T 80.
[46] T 80.
The defence contended that certain aspects of MM’s conduct on the day belied her assertion of reluctant interaction with the accused. In particular, the defence emphasised the following:
·Photographs were taken at the church on the Sunday morning (exhibit D3) which included four photographs of MM and the accused standing shoulder to shoulder, facing and smiling at the camera (photographs 5-8). Photographs 5 and 6 further show the accused with his right arm around the back of MM and his right hand resting on her left shoulder. Photograph 6 also shows MM with her left arm behind the accused’s lower back. In cross-examination, MM agreed that her left arm was resting on his back.[47]
·The accused hugged MM before he got on the bus to travel back to Melbourne. The accused testified that before he got onto the bus, he hugged MM and kissed her on the cheek.[48] In cross-examination, MM agreed that they had ‘hugged each other’ and described the contact as ‘extremely uncomfortable’.[49] (She did not say whether or not the accused had kissed her).
[47] T 81.
[48] T 171.
[49] T 80.
In my view, if MM reluctantly interacted with the accused to avoid arousing suspicion that something had happened between them, it is not implausible that she would have allowed herself to be photographed with the accused. However, I find it difficult to understand why she would have voluntarily put her arm around a man who, on her account, had raped her the night before. Similarly, her conduct in allowing the accused to hug her when he was about to get on the bus is not necessarily inconsistent with reluctant interaction but hugging him back, as she admitted, seems odd. However, care must be taken in attempting to objectively assess the post offence conduct of alleged victims of rape and other forms of sexual assault. There is no such thing as standard human behaviour. While MM’s behaviour is consistent with the defence case of consensual sexual intercourse, I do not think that it is necessarily inconsistent with her having been raped. Of course, it must be remembered that the prosecution bears the onus of proving the accused’s guilt, a matter of importance, to which I will return later.
Before I leave the events that occurred on the Sunday, I should mention, at least for the sake of completeness, that it was an agreed fact that the accused and MM exchanged three SMS text messages after they got up that day.[50] It was agreed that: (i) MM sent a text message to the accused at 8.45 am; (ii) the accused sent a text message to MM at 8.52am; and (iii) the accused sent a further text message to MM at 11.10am.[51]
[50] Agreed facts (Exhibit P6 – table of calls).
[51] Agreed facts (Exhibit P6, [45] and table of calls).
MM testified that she sent the first message before they left her home to attend the church service. She said that the accused was the last person to get on the bus. She sent him the message to inform him that the other members of the band were on the bus waiting for him. MM said that she chose to send the message rather than re-enter the house and speak directly to the accused because she did not want to be alone with him. She could not recall whether the accused sent the return message at 8.52am. She was not questioned about the third message sent by the accused at 11.10 am.[52] The accused was not examined or cross-examined about any of the three SMS messages and failed to give any evidence as to whether he was late getting onto the bus to go to church at the time MM sent the first message.
[52] T 47, 78-79.
I accept MM’s evidence that she sent the first message at 8.45am for the purpose of informing the accused that he was late for the bus. Her evidence was not contradicted by the accused. However, that fact and the fact that there was an exchange of two further text messages between the accused and MM throws no light on the pivotal issue of whether the act of sexual intercourse was consensual or non-consensual. I have derived no assistance from the exchange of text messages on the Sunday morning.
Monday 30 September: MM complains
MM testified that at the time of the relevant events she was in a ‘close relationship’ with a male person, AB. In examination-in chief, she described the relationship in the following terms:[53]
We were in a relationship. We didn’t name it as such, like boyfriend – girlfriend, partners, we didn’t name it that way, but it was well known amongst other friends that we were together and we had intentions of … getting married later on down the track.
[53] T 50.
MM said that on the afternoon of Monday 30 September 2013, the day after the band left for Melbourne, she received a call on her mobile phone from AB. He stated that he needed to talk to her and she replied that they needed to talk. She added that she could not speak to him at that moment because she was out shopping with her children. She told him that she would ring him when she returned home.[54]
[54] T 48.
After completing her shopping, MM drove home. MM remained in her motor vehicle and her children went inside. MM said that she then rang AB and told him about the rape. She said that she was upset and emotional. According to MM the conversation was to the following effect:[55]
·AB asked if she was okay. She replied: ‘no’.
·AB asked if she had been hurt. She replied: ‘yes’.
·AB asked if ‘it was it someone in the group’. She replied: ‘yes’.
·AB asked if she been raped. She replied: ‘yes’.
[55] T 49.
MM testified that AB asked her further questions which she answered. However, she could only remember telling AB that she was sorry that she did not do more to stop what had happened. MM said that she didn’t speak to AB about the incident while her children were present because, quite naturally, she did not want them to find out what had had happened.[56]
[56] T 49.
There were some variations between AB’s evidence and the evidence given by MM as to the nature of their relationship and the terms and circumstances of the complaint she made on 30 September. AB said that he had been in an intimate relationship with MM between November 2012 and March 2013. Following the termination of that relationship they remained friends,[57] and contemplated the ‘possibility’ of renewing their romance.[58]
[57] T 132-133.
[58] T 139.
AB testified that he rang MM at about 2pm and told her that he had obtained new employment. She initially seemed pleased for him and then said: ‘Ah, there is something that I need to talk to you about as well’. AB said that MM sounded anxious and worried. He asked her whether she was pregnant because that was something she had worried about during their relationship. She told him that it was a possibility. He then asked if she had slept with someone. She replied: ‘not by my choosing’. He then asked: ‘who was it?’ She replied that it was one of the African men who had been staying at her home. She said that she did not intend to report the matter because she felt humiliated. AB said that MM had indicated that she had the children with her and terminated the call.[59]
[59] T 133-134.
AB said that about 30 minutes later, MM rang him. He asked her what had happened. She told him that she was awoken by the man kneeling over her. AB asked her if he had entered her bedroom. MM explained that she was sleeping in the lounge room at the time because a family was sleeping in her bedroom. She said that the man gave her the impression that he was ‘looking for action’. However, she told him that it would not be appropriate and that she was not interested. The next thing she knew he was on top of her.

AB testified that he asked MM: ‘Did you say no? Did you tell them to stop?’ She said that she told the man: ‘You can’t, you can’t’. During the ensuing conversation MM explained that she was sleeping in the lounge room that night with two other people including a young African female. MM said that she was separated from the other two people by a coffee table.[60] AB said that during his conversation with MM over the phone that she sounded upset and extremely distressed and that he could hear her sobbing.[61]
[60] T 135-136.
[61] T 137.
In cross-examination, AB agreed that following his conversation with MM, he rang Yarrow Place and spoke to a person about the availability of the ‘emergency contraceptive’ pill (ECP). He then rang MM and discussed it with her. As a result of that conversation, he drove to a pharmacy and obtained the ECP for her. He then drove to MM’s home and witnessed her take it.[62] In re-examination, AB was asked how MM presented when she took the ECP. He said:[63]
So she was standing in the kitchen of her house in Blackwood. She had her pyjamas on and she – I remember when I originally got there, she just grabbed me and hugged me really tightly and just sobbed and sobbed and sobbed, and it took me properly five or 10 minutes to actually comfort her and get her to actually stop crying. The best way I can describe it to you is it looked like her parents had just died. She was pale, she was, like she was looking at the ground, her eyes just looked sunken, she looked like she had just been through shock. That’s the only way I can explain it to you.
[62] T 138.
[63] T 139-140.
MM was not examined or cross-examined as to whether AB attended her home and gave her the ECP on that Monday. She was merely asked, in cross-examination, whether she took the ECP at any time after the alleged rape. MM replied that she did not take the ECP and was unaware of its availability until she consulted a doctor on 2 October 2013. She said that the doctor informed her that it was too late to take it.[64]
[64] T 90-91.
I accept AB’s evidence that MM took the ECP on 30 September 2013. I am in no doubt that in the days following the act of sexual intercourse with the accused, MM was very concerned about the possibility of having fallen pregnant. Indeed, even on MM’s account she was concerned about that possibility. In my view, that concern was heightened by the nature of her relationship with AB. As mentioned, MM said that at the time of the incident she and AB were contemplating marriage sometime in the future. AB said that, although their sexual relationship had terminated several months earlier, they contemplated renewing their romance. On either account, falling pregnant would have jeopardised or destroyed MM’s prospects of continuing or renewing her relationship with AB.
Admissibility of complaint and distress evidence
This is a convenient point to deal with the admissibility of the evidence concerning the complaint of rape made by MM to AB and the distress that MM exhibited when she spoke to AB over the phone and later saw him at her home.
Complaint evidence
Section 34M of the Evidence Act 1929 (SA) governs the law relating to complaint in sexual cases. Pursuant to s 34M(3) evidence related to the making of an ‘initial complaint’ is admissible in a trial of a charge of a sexual offence. An ‘initial complaint’ in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint, whether provided at the time of the initial complaint or at a later time (s 34M(6)).
Complaint evidence is admitted (i) to inform the trier of fact (jury or judge as the case maybe) as to how the allegation first came to light; and, (ii) as evidence of the degree of consistency of conduct of the alleged victim (s 34(M). In relation to the latter use, the complaint is to be viewed as a prior consistent statement, which because of its consistency suggests that the complainant is more likely to be telling the truth at trial.[65] The evidence is admissible for those two purposes only. It may not be used ‘as evidence of the truth of what was alleged’ (s 34M(4)). Before complaint evidence is admitted the court must be of the view that the evidence constitutes an initial complaint and that it is capable of demonstrating consistency of conduct.[66] However, it is for the trier of fact to determine the significance, if any, of the evidence.[67]
[65] See Kilby v The Queen (1973) 129 CLR 460; Jones v R (1997) 143 ALR 52.
[66] R v S, D D (2010) 109 SASR 46 at [109].
[67] R v Usher (2014) 119 SASR 22 at [48].
I accept MM made a complaint to AB. There are differences between their evidence as to whether she made a complaint during the first phone call and elaborated upon it during the second phone call (as MM testified) or whether the complaint was confined to the second phone call (as AB testified). However, nothing turns on this discrepancy. On either version, the complaint satisfies the definition of ‘initial complaint’. In relation to the terms of the complaint, AB’s evidence was more expansive than MM’s. However, if MM was distressed at the time of their conversation it would not be surprising if her recollection of the details of the conversation was deficient. In any event, I am satisfied, that AB’s account of the terms of the complaint is substantially correct.
The complaint made by MM is admissible under s34M because it is capable of demonstrating consistency of conduct on her part. Defence counsel did not contend otherwise. However, it remains for me to determine, as the trier of fact, the significance of the evidence. This gives rise to a preliminary question of whether, for the purposes of assessing its significance, I can have regard to the fact that MM made no complaint of rape to anyone at any stage after she got up on the Sunday.
Section 34M(2) provides that ‘in a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim’s credibility or consistency of conduct’.[68] Section 34M(4) prescribes mandatory directions that must be given to a jury by the trial judge when complaint evidence is admitted. The judge is obliged to direct the jury, inter alia, that ‘there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person’ (s 34M(4)(c)).
[68] In the present case, counsel did not breach s 34M(2).
In R v Jones,[69] the Court of Criminal Appeal (SA) held that while the evident purpose of s 34M(2) is to preclude counsel or the trial judge suggesting that a delay in making a complaint is of probative value in relation to the complainant’s credibility, the section ‘does not prohibit a jury from taking into account delay in making a complaint in assessing the complainant’s credibility’.[70] It seems to me that if a jury can take into account delay in making so can a judge sitting without a jury in his or her capacity as trier of fact.
[69] R v Jones [2018] SASCFC 80, unreported delivered 15 August 2018.
[70] R v Jones [2018] SASCFC 80 at [129].
Does MM’s failure to make a complaint on the Sunday detract from her credibility? I do not think that it necessarily does. As the Court observed in Jones, s 34M(4)(c) ‘is clearly intended as a caution to the jury before using evidence of delayed complaint adversely to the complainant’s credit’.[71] In determining whether the failure to complain on the Sunday adversely impacts on MM’s credibility, it is necessary to have regard to all of the surrounding circumstances. If MM was raped it is understandable that she may have been upset, embarrassed and reticent to discuss the incident with others, particularly people she had met for the first time that weekend.
[71] R v Jones [2018] SASCFC 80 at [116].
What then is the significance of the complaint made by MM to AB? Plainly the complaint is consistent with MM’s allegations. However, it is equally consistent, in my view, with the complainant having fabricated her allegations because she regretted having engaged in consensual sexual intercourse with the accused. She may have feared criticism from family, friends and members of her church and the end of her relationship with AB should her conduct be exposed, which would occur if she had fallen pregnant. For these reasons, I am of the view that the complaint made by MM to AB has little probative value for the purposes of evaluating MM’s credibility.
Distress
Evidence of distress exhibited by an alleged victim may constitute evidence of a lack of consent where the distress is only referable to lack of consent and there is neither reasonable explanation for it.[72] Otherwise, the distress of the victim is not evidence of guilt and can only be used in relation to assessing the victim’s credibility or as evidence of consistent behaviour supporting the credibility of the victim.[73]
[72] See, for example, R v Kooyman (1979) 22 SASR 376.
[73] R v Byczko(No 2) (1977) 17 SASR 460; R v Baltensperger (2004) 90 SASR 129.
In the present case, AB’s evidence of MM sounding distressed on the phone and appearing distressed when he later saw her does not constitute independent circumstantial evidence supportive of her contention that she was raped. The distress evidence is relevant only for the purpose of evaluating her credibility and consistency of conduct in the same way as the complete evidence. I have gained no assistance from the distress evidence in that regard. The reasons which neutralise the significance of the complaint evidence, discussed above, also neutralise the significance of the distress evidence. In other words, while the evidence of distress is consistent with rape it is equally consistent with MM having engaged in consensual sexual intercourse. For example, MM may have feigned distress to bolster false allegations or she may have been genuinely distressed because she regretted what she had done.
Trip to Melbourne
On the weekend of the conference MM informed the accused and other members of the band of her intention to travel to Melbourne on the following weekend or shortly thereafter.
After the band returned to Melbourne, ETD remained in contact with MM over their mobile phones, via voice calls and SMS text messages. MM testified that when ETD first contacted her over the phone that she told him ‘what had happened’ between herself and the accused. MM testified that ETD suggested that MM should find out from the accused where he lived so that, when she came to Melbourne, he and AA (another member of the band) could accompany her to the accused’s home and confront him with her allegations.[74] ETD gave similar evidence.[75]
[74] T 50-51.
[75] T 119.
MM and ETD did not give evidence of the details of the allegations that MM related to ETD or the date upon which that occurred. However, it would appear from the terms of a text message sent from MM to ETD on 4 October 2013 that the plan had been hatched by that time.[76] For the purpose of ascertaining the accused’s address, MM subsequently contacted the accused by voice call or text message and arranged to stay at his home. The accused claimed that he told MM he was living at St Kilda at the time.[77] However, MM testified that the accused never supplied his address during that communication or in response to subsequent text message requests she sent him.[78]
[76] Exhibit P1 (Photographs of SMS text messages sent between the mobile phones of the complainant, the accused and ETD for period 4 October 2013-27 October 2013) - in particular, photos 20, 22 and 23.
[77] Accused T 173.
[78] T 52-54; Exhibit P1 – photographs of text messages (10 and 11).
On Sunday 6 October 2013 the accused left his accommodation in St Kilda and commenced living with ETD and his family.[79]
[79] ETD T 128-129; Accused T 173; see also Exhibit D5 (Text messages sent between the accused at ETD on 6 October 2013).
On Monday 7 October 2013 the accused informed MM over the phone (voice call or text message) that he had arranged for her to stay with S and J in Melbourne,[80] and later provided her with their address in a text message.[81] The accused suggested in his evidence that he made that arrangement because he did not have the right to invite her to stay at ETD’s home.[82] It would appear, although the evidence is unclear, that neither the accused, nor ETD, informed MM that the accused had by this time moved in to live with ETD and his family. That would appear to be so, because after MM was informed by the accused of the arrangement he had made with S and J, she sent him a text message later that day indicating that she would prefer to stay with him. She did not receive a reply.[83]
[80] T 86.
[81] Exhibit P1 – photograph of text message (12).
[82] T 174.
[83] T 84 – 85; Exhibit P1 – photographs of text message (12 and 13).
On Tuesday 8 October 2013 MM drove to Melbourne with her friend AB. They stayed at the home of A and his wife. During the drive to Melbourne, MM remained in contact with the accused and ETD on her mobile phone.[84]
[84] Exhibit P1 – photographs of text messages (14, 28 and 29).
MM testified that following her arrival in Melbourne she had discussions with ETD over the phone in relation to the plan to confront the accused at his home. She said that they abandoned the plan because the accused had failed to provide her with his address. MM said that ETD proposed holding a dinner at his home to which he would invite MM, the accused and the other members of the band and their families so that she could confront him with her allegations in the presence of the others.[85] Later that evening, MM sent the accused a text message indicating that she had caught up with friends and would be staying with them.[86] Strangely, on MM’s account, she was not told by ETD that the accused was staying with him at that time. ETD was not questioned about this oddity.
[85] T 53-54, 84.
[86] T 55, 84; Exhibit P1 – photograph of text message (15).
In any event, there is no dispute that a dinner was held at ETD’s home on the night of 10 October 2013 which was attended by MM, AB, the accused and the other members of the band and their families who attended the church conference. MM testified that at one point during the evening ETD announced to the gathering that she had something to say. MM said that AB was not present at that point because she had asked him to leave because she did not want to expose him further to what had happened.[87] MM told them that something happened on the Saturday night when they were staying at her home. She asked the accused if he wanted to let everybody know. According to MM, he replied that he did not remember anything happening and that if she wanted to say something, she should just say it.
[87] T 93.
MM said that she then ‘described briefly to everyone that [the accused] had raped her’ but did not tell them the nature or circumstances of the incident.[88] According to MM, the accused responded that he could not remember anything except that she had told him that she liked him.[89] ETD then intervened and asked MM ‘if a girl says that she likes you does that mean she wants sex’. The accused replied: ‘No’. MM testified that she then asked the accused: ‘So did I at any time say ‘no’ to you?’ to which he replied ‘Yes you did’. MM then asked: ‘How many times did I say no?’ and he allegedly replied: ‘A few’.[90] In cross-examination, MM agreed that ETD asked the accused to apologise and that he replied: ‘I am sorry for all this mess, for the situation’.[91]
[88] T 56, 94-95.
[89] T 56.
[90] T 56.
[91] T 95.
ETD also gave evidence of the discussions that took place at his home. He said that everybody was in the lounge room when the discussions commenced. He said that he remembered MM saying to the accused: ‘You know what happened, it wasn’t right’. The accused replied: ‘Oh, but you said you like me’. MM then said to the accused: ‘Didn’t I tell you ‘stop, stop, stop?’. ETD said that he could not remember the accused’s reply. He could only recall a ‘couple of people’, including himself, criticising the accused.[92] In cross-examination, ETD agreed that he asked the accused to apologise to MM. He said that the accused initially remarked: ‘I’m not going to apologise to something I haven’t done.’ ETD further agreed that the accused said: ‘I’m sorry for all this, the mess and the situation that happened’, or words to that effect.[93]
[92] T 121.
[93] T 130.
The accused gave evidence about the gathering at ETD’s home. He said that when he arrived AB was just leaving. A short while later, ETD asked him to join them (presumably in the lounge room). The accused said that after he sat down with the others, ETD asked if he knew the person who had just left. The accused replied that he did not know him. ETD then told him that the person was MM’s fiancé and that she wanted to say something to everyone who was present. According to the accused MM then said: ‘you know what happened between us I didn’t want to happen’. He replied: ‘what do you mean what are you talking about I thought you liked me’.
The accused testified that ETD then accused him of raping MM which he immediately denied. He said that the people in the house started yelling at him and calling him names in French, English and Congolese. When the yelling stopped, ETD said to the accused that MM wanted him to apologise. The accused responded: ‘I can’t apologise for something I didn’t do’. In-chief the accused was asked whether he replied at some stage. He gave the following answer:[94]
I didn’t apologise for what they were accusing me of, but I know in the end I said sorry; sorry for the situation we were all in because everyone was yelling calling me names, you know. I felt like attack, attacking me, so I thought sorry, sorry for all this, sorry for the mess.
[94] T 176-177.
The accused said that after he apologised, ETD said that he could not stay at his home anymore, so he left.[95]
[95] T 177.
It is convenient to express, at this point, my findings in relation to the discussion that took place at ETD’s home. I accept that in the course of the discussion MM effectively asserted that the accused had had sexual intercourse with her despite her having said to him, on more than one occasion, ‘no’ (as MM testified) or ‘stop’ (as ETD testified). However, I am not satisfied beyond a reasonable doubt that he responded to her allegation or, if he did, that he responded in a manner that amounted to an acknowledgement that her assertion was the truth. The accused denied that he made any such admission and ETD’s evidence was of no assistance on this point. The accused’s denial was no less plausible than MM’s assertion. Also I am not satisfied that the accused apologised because he had raped the complainant. It is reasonably possible that he apologised for the reasons he expressed.
Medical consultation
On 2 October 2013 MM consulted her general practitioner and provided blood samples for the purpose of determining whether she was pregnant or had contracted a sexually tran. The tests later returned negative results.
MM testified that during the consultation she informed the doctor that she had been raped. In cross-examination, MM agreed that she had also said in her statement to police, dated 27 October 2013, that she reported to the doctor that she had been raped.[96] The doctor was not called by the prosecution. However, a copy of his notes of the consultation on 2 October 2013 were annexed to the agreed facts (Exhibit P6). The notes, set out below, purportedly record the history provided by the complainant and her reasons for consulting him:
[96] T 89-90.
History
1. needs STDs screening
Also would like to try depo Provera
She had unprotected sex
…
Reason for contact
STD screening/counselling
The notes contain no reference of MM having complained of rape to the doctor, contrary to her evidence. The defence submitted that this discrepancy served to undermine her credibility. I reject that submission. In my view, if MM had made a complaint of rape it is not implausible that the doctor may have failed to record the complaint in his notes. The possibility of the doctor having wittingly or unwittingly having done that could have been better assessed if he had been called to give evidence.

In any event, even if MM had failed to mention that she been raped that fact, in my view, has little forensic significance. Such a failure may have assumed significance if MM had first complained of rape sometime after she consulted her doctor on 2 October. In those circumstances the notes could arguably amount to a prior inconsistent statement or her subsequent complaint of rape could arguably be characterised as a recent invention. However, no such argument can be mounted for the simple reason that by the time MM had consulted her general practitioner, she had already made a complaint of rape to AB on 30 September. For these reasons, I am of the view that if MM had failed to mention to the doctor that she had been raped, that could hardly undermine her credibility and reliability.
Further medical consultations
MM gave evidence that after 2 October 2013 she had further medical consultations at Yarrow Place and additional pregnancy tests. She said that the first couple of tests produced negative results, and that she did not discover she was pregnant until she received the results of the final blood test on, or about, 22 October 2013.[97]
[97] T 56, 89-90.
MM gave birth to the child in June the following year. Comparisons of DNA profiles obtained from the child, the accused and MM were conducted. It is an agreed fact that the probability of obtaining a child with the DNA profile of MM’s child is approximately 61 million times more likely if the accused is the biological father of the child rather than an unknown male.[98] There is, as earlier mentioned, no dispute that the accused is the child’s father.
[98] Agreed facts (P6 - [39]).
Police investigation
MM first reported the matter to the police on 26 October 2013 and provided a statement to the police the following day. Efforts made by the police to locate the accused during the ensuing weeks were unsuccessful. In November 2013 the police applied for a warrant for the arrest of the accused. The warrant was issued out of the Adelaide Magistrates Court on 12 February 2014.
The accused was not located by police until 6 September 2017 when he was arrested in Melbourne. The accused was granted bail the following day to attend the Adelaide Magistrates Court on 8 September 2017. The accused attended the Adelaide Magistrates Court in answer to his bail on the required date
There is not dispute that the accused was unaware that he was wanted by the police in relation to this matter until he was arrested, and that it was through no fault of his that the police were unable to locate him until then.[99]
Legal Issues
[99] Agreed facts (P6-[1]-[8]).
Fundamental principles
A person charged with a criminal offence is to be presumed innocent of the charge unless and until the prosecution proves his or her guilt by establishing beyond a reasonable doubt each of the elements of the charge. No onus is cast upon the accused to prove his or her defence. If the accused raises a defence the prosecution is required to rebut the defence beyond a reasonable doubt.[100] Where a trial is essentially, as in the present case, a conflict between the complainant’s evidence and the accused’s evidence (‘oath against oath’), it is not sufficient that the trier of fact prefers the complainant’s evidence.[101] Even if the trier of fact (judge or jury as the case maybe) rejects the accused’s evidence, he or she cannot be convicted unless the trier of fact is satisfied beyond reasonable doubt that the complainant has given a truthful and reliable account which establishes all of the essential elements of the charged offence.[102]
[100] Woolmington v DPP [1935] AC 462; Moffa v The Queen (1977) 138 CLR 601 p 607-8; Howe v R (1980) 32 ALR 478 p 438; He Kaw Teh v The Queen (1985) 157 CLR 523.
[101] R v Calides (1983) 34 SASR 355.
[102] Douglass v R (2012) 290 ALR 699; R v Calides (1983) 34 SASR 355.
Elements of offence
Rape is an offence under Division 11 of the CLCA. Pursuant to s 48(1) a person (the offender) is guilty of rape if he or she engages, or continues to engage, in sexual intercourse with another person who (a) does not consent to engaging in the sexual intercourse; or (b) has withdrawn consent to the sexual intercourse, and the offender knows, or is recklessly indifferent to, the fact that the other person does not so consent or has so withdrawn consent (as the case may be). Sexual intercourse is defined in the CLCA to include various sexual activities including penetration of a person’s vagina or labia majora by any part of the body of another person (s 5).
Section 46 defines the notion of consent for the purposes of rape and other sexual offences created under Division 11. The section relevantly provides:
(1)    In this section – sexual activity includes sexual intercourse.
(2)    For the purposes of this Division, a person consents to sexual activity if the person freely and voluntarily agrees to the sexual activity.
(3)    Without limiting subsection (2), a person is taken not to freely and voluntarily agree to sexual activity if –
(a)the person agrees because of –
(i)   the application of force or an express or implied threat of the application of force or a fear of the application of force to the person or to some other person; or
(ii) an express implied threat to degrade, humiliate, disgrace or harass the person or some other person; or
(b)      the person is unlawfully detained at the time of the activity; or
(c)      the activity occurs while the person is asleep or unconscious; or
(d)the activity occurs while the person is intoxicated (whether by alcohol or any other substance or combination of substances) to the point of being incapable of freely and voluntarily agreeing to the activity; or
(e)the activity occurs while the person is affected by a physical, mental or intellectual condition or impairment such that the person is incapable of freely and voluntarily agreeing; or
(f)      the person is unable to understand the nature of the activity; or
(g)the person agrees to engage in the activity with a person under a mistaken belief as to the identity of that person; or
(h)      the person is mistaken about the nature of the activity.
…
‘Reckless indifference’ is defined in s 47 of the CLCA, which states:
For the purposes of this Division, a person is recklessly indifferent to the fact that another person does not consent to an act, or has withdrawn consent to an act, if he or she –
(a)    is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but decides to proceed regardless of that possibility; or
(b)    is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the other person does in fact consent, or has in fact withdrawn consent, to the act before deciding to proceed; or
(c)    does not give any thought as to whether or not the other person is consenting to the act, or has withdrawn consent to the act before deciding to proceed.
In the present case, there is no dispute that the accused engaged the complainant in an act of sexual intercourse by inserting his penis into her vagina. The key contentious issues are whether the prosecution has established beyond a reasonable doubt: (i) that the complainant did not consent or had withdrawn consent to sexual intercourse; and, (ii) that the accused knew or was recklessly indifferent to the fact that the complainant did not consent or had withdrawn consent. If it is reasonably possible that the accused had an honest but mistaken belief that the complainant consented, the prosecution will have failed to prove that he possessed the requisite mental element for the crime of rape.[103]
[103] He Kaw Teh (1985) 157 CLR 523; DPP v Morgan [1976] AC 182; R v Brown (1975) 10 SASR 139.
Dissociation
Before I turn to discuss my findings in relation to the incident, it is necessary to discuss the admissibility of evidence given by MM on the topic of dissociation.
The psychiatric textbook Diagnostic and Statistical Manual of Mental Disorders (DSM-5)[104] recognises dissociative disorders as mental disorders characterised by a disruption of and/or discontinuity in the normal integration of consciousness, memory, identity, emotion, perception, body representation, and behaviour. The text states:[105]
Dissociative symptoms are experienced as a) unbidden intrusions into awareness and behaviour, with accompanying losses of continuity in subjective experience (i.e., “positive” dissociative symptoms such as fragmentation of identity, depersonalisation, and derealisation) and/or b) inability to access information or to control mental functions normally are readily amenable to access or control (i.e., “negative” dissociative symptoms such as amnesia).
The dissociative disorders are frequently found in the aftermath of trauma, and many of the symptoms, including embarrassment and confusion about the symptoms or a desire to hide them, are influenced by proximity to trauma. In DSM–5, the dissociative disorders are placed next to, but are not part of, the trauma– and stressor-related disorders, reflecting the close relationship between these diagnostic classes. Both acute stress disorder and posttraumatic stress disorder contain dissociative symptoms, such as amnesia, flashbacks, numbing, and depersonalization/derealization.
Depersonalization/derealization disorder is characterised by clinically significant persistent or recurrent depersonalization (i.e., experiences of unreality or detachment from one’s mind, self, or body) and/or derealization (i.e., experiences unreality or detachment from one’s surroundings). These alterations of experience are accompanied by intact reality testing. There is no evidence of any distinction between individuals with predominantly depersonalisation versus derealisation symptoms. Therefore, individuals with this disorder can have depersonalization, derealization, or both.
[104] Diagnostic and Statistical Manual of Mental Disorders (DSM–V-TR), American psychiatric Association 5^th ed, 2013.
[105] Ibid p 291.
There have been several cases where Australian Courts have held to be admissible expert psychiatric evidence that the accused was in a dissociative state at the time of the charged offence to support a defence of non-insane automatism. For example, in both R v Radford[106] and R v Falconer[107] the accused maintained at trial that, as a result of their exposure to traumatic stressors, they were in a state of dissociation or derealisation at the time they shot the victims. In each case, expert evidence was permitted to provide a foundation for the accused’s contention. Similarly, expert evidence has been admitted to assist juries to understand the effects of psychological syndromes on victims, such as long-term, repeated domestic violence upon a victim’s reactions to threats, provocation and physical or mental cruelty from their assailant (battered woman syndrome).[108]
[106] R v Radford (1985) 42 SASR 266.
[107] R v Falconer (1990) 171 CLR 30.
[108] Osland v The Queen (1998) 197 CLR 316; R v Runjanjic (1991) 56 SASR 114; See I. Freckelton and H Selby, Expert Evidence, 5th.ed. Lawbook Co, Chapter 10. F35 (‘Syndrome Evidence’) for comprehensive discussion of authorities.
For the purposes of rape and other sexual offences, created in Div.11 of the CLCA, a person is taken not to freely and voluntarily agree to sexual activity if, inter alia, ‘the activity occurs while the person is affected by a physical, mental or intellectual condition or impairment such that the person is incapable of freely and voluntarily agreeing’ (s 46((3)(e)). Evidence that a complainant was suffering from a mental disorder, including dissociation, at the time of the relevant sexual activity may, depending on the nature of the evidence, be relevant and admissible in relation to the issue of consent.
In the present case, it was permissible for MM to give evidence of the feelings she was experiencing during the incident and to explain her reasons for engaging in certain conduct. Accordingly, it was permissible for her to say, for example, that at times she ‘blanked out’, felt ‘fuzzy’, and felt as if her mind had gone elsewhere (whatever that might mean). However, MM’s evidence that since the incident she had attended ‘counselling and psychology appointments’ through which she learned that feelings described above resulted from her being in a state of dissociation is inadmissible. The implication of this evidence is that the person or persons she consulted were of the view that MM’s feelings were the product of her being in a state of dissociation at the time. This constitutes inadmissible hearsay. Accordingly, I have disregarded this aspect of her evidence.
Even if it did not constitute hearsay, the evidence lacked probative value because, among other things, it is unknown whether the person, or persons MM consulted:
·referred to dissociation, as defined in DSM-V or in some other context (possibly non-medical/ psychiatric);
·possessed the requisite expertise to express an opinion; or
·obtained an adequate history upon which to express an opinion.
There is a further problem. It is not permissible, in my opinion, for a judge to take judicial notice of dissociation as described in DSM-V or in any other medical/psychiatric publication. I have referred to DSM-V merely for the purpose of explaining the potential relevance of dissociation, as defined in that text, to the issue of consent. The recognition of dissociation as a mental condition, its aetiology and symptomology are matters that require evidence from a suitably qualified expert. No such evidence has been put before me.
Consideration
In this case, I was presented with two conflicting accounts in respect of the incident the subject of the charge. There were aspects of the accused’s evidence I consider to be unconvincing. For example, he claimed that just before he got on the bus to return to Melbourne that MM said she wanted them to be open about their relationship which is difficult to reconcile with MM making a complaint of rape the following day. But in the main the accused was a reasonable witness who gave a plausible account, sufficient to generate, in my mind, a reasonable doubt as to his guilt.
MM is intelligent. She gave her evidence in a careful and articulate manner. I do not find that she was necessarily untruthful. She may have told the truth. However, in addition to the accused’s evidence, the following aspects of her evidence have caused me to doubt the credibility of her allegations.
First, there is MM’s evidence, as to how she responded to the accused’s initial sexual advances. MM said after the accused first kissed her, they both stood up. He then put his hand around her waist, kissed her on the mouth again and proceeded to fondle her vagina. Although MM claims that she verbally protested and did not consent, she offered no physical resistance. Furthermore, she kissed him back ‘several times’ and allowed him to touch her vagina to the point of becoming sexually aroused.
The complainant suggested that she reacted to the accused in this manner because she had lapsed into a mental state that caused her to allow things to happen (a state of helplessness) as a result of having been abused in the past. For the following reasons, I am not prepared to accept that explanation beyond a reasonable doubt:
·No expert evidence was produced to show that there is a credible psychological or psychiatric explanation for MM’s response.
·Despite the importance of the alleged abusive relationship, in relation to explaining MM’s state of mind, no evidence was elicited from MM as to the circumstances of that relationship – when she was abused, the identity of her abuser and the nature of the abuse.
·There is no dispute that the accused and MM were on friendly terms before the incident. Furthermore, the accused had not used, or threatened to use, any form of violence against MM before he kissed her and held her around the waist. It is difficult to understand why such relatively benign conduct would trigger overpowering and disabling thoughts of prior abuse.
·While MM was purportedly ‘dissociating’ and allowing the accused to do things to her, she was not entirely passive. On her account, she was still capable of telling the accused to stop what he was doing. Furthermore, MM responded to the accused’s sexual advances by kissing and allowing him to touch her to the point of sexual excitement. The reasonable inference to be drawn from the evidence, in the absence of expert evidence to the contrary, is that MM freely and voluntarily engaged in those activities – activities which immediately preceded the act of sexual intercourse.
·It is curious and seemingly contradictory, that on MM’s account she lapsed into a ‘dissociative’ state when the accused was kissing her lips and fondling her vagina, and when she later rubbed his penis, but did not dissociate whilst being raped, the most serious form of sexual abuse to which she was subjected.
Next, there is MM’s evidence that after the accused had got on top of her on the floor she pushed against his chest and said that she could not have sex with him because she did not want to wake up the ‘child’ sleeping in the room. For the reasons previously discussed, I find it difficult to accept that MM could have genuinely believed that L was a ‘child’. But even if she did, it is curious that MM did not take some action to wake up L or any of the other people in the house. One would have thought that any embarrassment that that may have caused her, or them, would have been preferable to the accused raping her.
Also, there was little physical resistance offered by MM. On her account while they were standing and kissing she pushed him away and later, when he was lying on top of her, she tried to wriggle out from underneath him. I do not mean to suggest that a person is obliged to offer physical resistance for a charge of rape to be sustained. Rape and other forms of sexual offending may occur in circumstances where little to no physical resistance is provided. However, the failure to offer physical resistance may provide evidence supportive of an accused person’s contention that the relevant sexual activity was consensual, particularly when the accused is not alleged to have engaged in violent or threatening conduct that might cause a victim to submit. In the present case, the accused engaged in no such conduct. Furthermore, it is not unimportant to note that MM did not suggest that she was put in fear by the accused, at any time during the incident.
Finally, there is the combined effect of other items of evidence that I have already canvassed, namely, MM’s conduct on the Sunday in putting her arm around the accused while posing to be photographed; her failure to tell Constable Watts that she expressed concern to the accused that there was a child in the room; her assertion that Constable Watts deliberately left that allegation out of her statement; and, her motive to make up a false story of having been raped i.e., her concern that she may have fallen pregnant, disclosure of which may have significantly embarrassed her and put in jeopardy her relationship with AB.
None of these factors necessarily point to MM having given a false account. However, they have contributed to my conclusion that the prosecution has failed to prove its case beyond a reasonable doubt.
Verdict
For the reasons expressed above I return a verdict of not guilty.