R v L, J

[2018] SADC 143

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v L, J

Criminal Trial by Judge Alone

[2018] SADC 143

Reasons for the Verdicts of His Honour Judge Millsteed

19 December 2018

CRIMINAL LAW

Trial by judge alone – accused charged with aggravated assault (2 counts), assault (1 count), rape (2 counts), compelled sexual manipulation (1 count) – alleged offences committed against partner over a period of 12 months – whether uncharged acts of violence were admissible in relation to the charged counts – whether certain counts were cross admissible – accused exercised right to remain silent in court but made exculpatory statements when interviewed by police – consideration of probative value of exculpatory statements - complainant’s account in relation to history of violence supported by independent witnesses and admissions made by the accused to police - complainant’s account in relation to the charges of aggravated assault supported by independent witnesses – whether complainant gave credible and reliable evidence in relation to each count – guilty verdict on each count.

Juries Act 1927 (SA) s 7; Criminal Law Consolidation Act 1935 (SA) s 5, s 20(1), s 20(2), s 20(3), s 20(4), s 46, s 47, 48(1), s 48(4), s 48A, Div 11, ; Evidence Act 1929 (SA) s 34P; Summary Offences Act 1953 (SA) s 79A, referred to.
Woolmington v DPP [1935] AC 462; Moffa v The Queen (1977) 138 CLR 601; Howe v The Queen (1980) 32 ALR 478; He Kaw Teh v The Queen (1985) 157 CLR 523; Douglass v R (2012) 290 ALR 699; R v Calides (1983) 34 SASR 355; Azzopardi & Davis v R (2001) 205 CLR 50; M v R (1994) 62 SASR 364; R v McCarrol [2004] WASCA 131; Mule v R (2005) 221 ALR 85; R v Donovan [1934] All ER REP 207; R v C,CA [2013] SASCFC 137; Johnson v The Queen [2018] HCA 48; Roach v The Queen [2011] HCA 12; (2011) 242 CLR 610; R v El-Hayek [2004] NSWCCA 25; R v Nieterink (1999) 76 SASR 56; HML v The Queen [2008] HCA 16; (2008) 235 CLR 334; Harriman v The Queen (1989) 167 CLR 590; Abrahamson v The Queen (1994) 63 SASR 139; R v Maiolo [No2] (2013) 117 SASR 1; R v Grech [1997] 2 VR 609; R v Beserick (1993) 30 NSWLR 510; R v Power (1996) 87 A Crim R 407; Douglass v The Queen [2012] HCA 34; Palmer v R (1998) 193 CLR 1; Hargraves & Stoten v R (2011) 245 CLR 257, considered.

R v L, J
[2018] SADC 143

Introduction

1. The accused (JL) was tried before me sitting without a jury,[1] on Information that charged him with assault causing harm,[2] (counts 1 and 2), assault,[3] (count 3), rape,[4] (counts 4 and 6) and compelled sexual manipulation,[5] (count 5). The offences are alleged to have been committed against the complainant (KS) while she was living with the accused. It was the prosecution’s case that during a relationship of 15 months, the accused regularly subjected KS to acts of violence, including the charged offences, because he mistakenly believed that she had been unfaithful to him.

   [1] The accused elected to be tried by judge alone pursuant to s 7 of the Juries Act 1927 (SA).

   [2]    Criminal Law Consolidation Act 1935 (SA), s 20(4).

   [3] Criminal Law Consolidation Act 1935 (SA), s 20(3).

   [4]    Criminal Law Consolidation Act 1935 (SA), s 48(4).

   [5]    Criminal Law Consolidation Act 1935 (SA), s 48A.

2. In relation to the charged offences the prosecution contended that:

   ·on 24 December 2015 at Bowden the accused assaulted KS by punching her in the face and caused her harm by injuring her nose (count 1);

   ·in or about July 2016 at Plympton Park JL the accused assaulted KS by punching her in the face and caused her harm in the form of facial cuts, bruises and swelling (count 2);

   ·on 29 January 2017 at Plympton Park:

   -the accused assaulted KS by punching her in the pelvis (count 3);

   -raped KS by causing her to perform an act of fellatio upon him without her consent (counts 4 and 6); and,

   -compelled KS to engage in an act of sexual manipulation by making her lick his anus without her consent (count 5).

3. Following counsels’ closing addresses, I reserved my verdicts which I now deliver. I find the accused guilty of the charges for the reasons set out herein.

   The trial

4. The prosecutor, Mr W. Martin, called the complainant KS and the following witnesses: Scott Hall,[6] Anthony Hodge, Diana Livingstone (accused’s neighbours) and Detective Sergeant (DS) Kelly Weston (Investigating Officer). The accused was represented by Mr E. Jolly, of counsel. The accused did not give or call evidence but relied upon exculpatory statements that he made when interviewed by the police. The defence contended that it was reasonably possible that the exculpatory statements were true and that, in any event, I could not be satisfied beyond reasonable doubt that the complainant was a credible and reliable witness.

   [6]    Mr Hall gave evidence under a new surname. I will refer to him by his previous surname.

   Prosecution Case

5. In the course of outlining the evidence tendered by the prosecution, I will express certain findings, including my reasons for accepting the evidence given by the accused’s neighbours. Later in my reasons, under the heading ‘Consideration’ I will return to explain my reasons for accepting KS’s allegations in respect of each of the charged offences.

   Background

6. At the time of the relevant events, JL and KS were aged about 35 years and 42 years, respectively. They were unemployed and in receipt of social security benefits. Approximately 10 years earlier, KS was employed as a sex worker in an Adelaide brothel called ‘Stormy’s’.

7. JL and KS met in about October 2015 through a mutual acquaintance, Jamie Voakes. At the time KS was homeless and the accused resided at Bowden in a boarding house for men. A few weeks after they met, KS commenced a sexual relationship with JL and commenced living with him at the boarding house. In early January 2016 they moved into a Unit at Plympton Park where they lived together until the accused was arrested on 30 January 2017, the day after he is alleged to have committed counts 3-6.

8. During their relationship JL and KS used amphetamines intravenously, although KS claims that she stopped using the drug after they moved into the Unit at Plympton Park.[7] They also abused alcohol, primarily port, and were often drunk.[8] One of the occupants of the boarding house at Bowden, Scott Hall, testified that they were drunk almost every afternoon when he returned home from work. He also observed them on one or two occasions consuming methylamphetamine intravenously.[9]

   [7]    Trial transcript (T) 60

   [8]    T216.

   [9]    T216

   Accused’s jealousy and violence

9. KS testified that JL was jealous and controlling. He frequently accused her, without justification on her account, of having sexual relationships with other men. Sometimes if she left the boarding house at Bowden, or the Unit at Plympton Park, to go shopping or for some other reason, he would accuse her of having been out ‘jumping on cocks’.[10] He also deeply resented that she had previously worked as a prostitute, having been informed of that fact by Jamie Voakes, while she was living with him at Bowden. The accused subsequently told KS that he could remember seeing her at Stormy’s.[11]

   [10]   T266.

   [11]   T26-27, T51-53.

10. On KS’s account due to the accused’s jealousy and resentment he often subjected her to verbal and physical abuse, especially when he had been drinking or using amphetamines.[12] She estimated that he punched or ‘threw [her] around’ more than twice a month.[13] He would also choke her and pull her hair.[14] As a result of the assaults, she suffered two broken noses and injuries to her face, ribs, arms and legs.[15] She said that he sometimes punched her in the back knowing that she had back problems in the form of ‘osteo degeneration’.[16] KS further testified that the accused’s violent conduct was sometimes followed by expressions of remorse. He also sought to offer excuses for his suggesting that he was unable to recall his misconduct because he had ‘blanked out’ at the time. He would also suggest that he was not in his ‘right mind’ and that he was possessed by an ‘evil child’.[17]

    [12]   T24-25, T26-27, T47-48, T51-53.

    [13]   T25,75.

    [14]   T48-49.

    [15]   T25, T75.

    [16]   T48-49.

    [17]   T51.

11. At one point in-chief, KS said that she believed the accused punched her in the back at times because he wanted to cause her ‘renal failure’.[18] She explained that her belief was based on the following:[19]

    He mentioned it [the topic of renal failure] because I … had to put myself in bed to lay down, having trouble walking and he would come in the bedroom and check to see if I did have renal failure or not, see if there was blood coming out of my rear end …

    [18]   T49.

    [19]   T49.

12. KS agreed in cross-examination that she never alleged in any of her statements to police that he had punched her to cause renal failure or made any enquiry of her in that regard.[20] It is convenient to state at this point, that I accept that the accused punched her in the back from to time to time and enquired on at least one of those occasions about her condition. However, while KS may genuinely believe that he enquired about her condition to find out whether he had achieved what he had set out to do, it seems to me that such an enquiry is entirely consistent with the accused regretting his behaviour and checking to ensure that she had not been seriously hurt. This is consistent with KS’s evidence that on occasions he was remorseful after he had assaulted her.

    [20]   T133-134.

13. In addition to giving the general descriptions of physical and verbal abuse, discussed above, KS gave evidence of specific incidents of charged and uncharged acts of violence that occurred at Bowden and Plympton Park. I now turn to those incidents.

    Bowden

14. It is appropriate to briefly mention the layout of the boarding house at Bowden. Each boarder had his own bedroom but shared a bathroom, kitchen and living room. The bedrooms were located on either side of a hallway which extended from the front door to the rear of the premises where the kitchen and living room were located. The accused’s bedroom (No 1) was located immediately inside the front door. Mr Hall’s bedroom (No 4) was located on the opposite side of the hallway directly opposite the bathroom.

    TV incident: uncharged

15. KS testified that in late November 2015 she had an argument with JL after he had accused her of being a whore or slut for having worked at Stormy’s. In the course of the argument, KS accidentally bumped into a cupboard, causing a television sitting on top of the cupboard to fall onto the floor. JL accused her of having deliberately dislodged the television. He then ‘grabbed’ her, punched her in the face and ‘threw’ her on to the bed which resulted in the left side of her ribcage striking a metal bed rail. KS said that as a result of landing on the bed rail she suffered ‘cracked’ and bruised ribs and that the punch to her broke her nose. She believed her nose was broken because it was bleeding and, immediately after the assault, she went to the bathroom and could see in the mirror that her nose was ‘crooked’ so she ‘straightened it’. She did not seek medical treatment for her injuries or report the matter to police.[21]

    [21]   T29-32.

16. In cross-examination:

    ·    KS denied that the television fell as a result of her pushing the accused into the fridge. She further denied that the accused grabbed her and pushed her onto the bed after she had punched him.[22] I note that when the accused was interviewed by the police he was not questioned about the ‘TV incident’. Accordingly, there is no evidence, even if the form of an exculpatory out of court statement by the accused, which supports the version of the incident put to KS in cross-examination.

    ·    KS admitted that in her statement to police dated 30 January 2017 she did not specifically allege that the accused ‘broke her nose’ and conceded that she may have been mistaken because there were two occasions when that had happened.[23]

    ·    KS explained that she did not report the matter to the police or leave the accused because he would not let her leave the room at the time and there was no phone in the boarding house. In any event, she loved him and had no place to go.[24]

    [22]   T135.

    [23]   T130-133.

    [24]   T53-54, T133-134, T138.

    Retaliation incident: uncharged

17. KS described an occasion when she hit the accused, at the boarding house, sometime after the ‘TV incident’ but before the ‘Christmas Eve’ incident (count 1). KS said that JL had punched her in the head, so she retaliated and punched him in the head. He then ‘hit’ her again. KS said that as a result of this incident, she decided to never retaliate again because she ‘feared him tremendously’.[25] It is to be observed that, when interviewed by the police, the accused admitted there was an occasion ‘when she broke [his] nose, so [he] broke hers back’.[26]

    [25]   T75-76.

    [26]   Exhibit P2 Appendix B line 146.

18. Mr Hall also gave evidence of an incident in which he observed KS strike the accused. He said he was sitting at the front of the boarding house with the accused when KS came outside and said: ‘fuck you’ and punched JL in the face. KS then went back inside.[27] In cross-examination he said that the accused and KS had a volatile relationship and were always arguing. He gained the impression from the nature of the arguments that they were ‘equally’ aggressive.[28]

    [27]   T75.

    [28]   T216-218.

19. It is convenient to mention at this point that I considered Mr Hall to be an honest and substantially reliable witness. Indeed, his evidence was not seriously challenged. I accept his evidence that KS punched the accused at the front of the boarding house. I also accept Mr Hall’s evidence that he witnessed KS being verbally aggressive at times, although I do not regard that as being inconsistent with the thrust of KS’s allegations.

20. The evidence given by KS and the statement made by the accused to the police were very broad. They were not questioned in any detail about the circumstances of the retaliation incident that each of them described. On their respective accounts, it is not known whether any person witnessed the incident or where each of the punches were thrown. Nevertheless, I find that they were probably referring to the same incident because each of them, KS in her evidence and JL in his police interviews, described only one occasion when KS punched JL and he retaliated in kind.

21. Furthermore, I think it is probable that Mr Hall saw part of the incident that they described. It is true that Mr Hall did not see KS strike JL but that may have occurred inside the boarding house and caused KS to go outside and punch the accused in the nose, as Mr Hall described. It is also true that Mr Hall never saw the accused retaliate by punching and injuring KS’s nose but that may have occurred after the accused had returned inside.

22. In any event, I am satisfied that there was an incident when the accused and KS punched each other in the nose. I further accept KS’s evidence, for reasons that I will canvass later, that the incident was triggered by the accused initially punching her.

    Christmas Eve incident: assault causing harm – count 1

23. KS deposed that, on the afternoon of 24 December 2015 she went Christmas shopping in the city and purchased food and presents for the accused and Mr Hall. While KS was shopping, she received a call from the accused who wanted to know where she was and what she was doing. When she explained what she was doing, he suggested that he did not believe her. He called her a ‘whore’ and a ‘slut’, asserted that she had been out ‘jumping on cocks’ and demanded that she return home and go shopping with him.[29]

    [29]   T33-34.

24. KS testified when she returned to the boarding house, JL was ‘wild and aggressive’. She again explained that she had been out shopping. He reiterated that he did not believe her because she had been away too long. He then ‘king hit’ her with a closed fist to the nose and proceeded to punch several more times about the head and body. As a result of the assault, she suffered a broken nose and bruises on her arms.[30]

    [30]   T34-35, T55.

25. Following the assault, KS left the accused’s bedroom and went to the bathroom. Prior to entering the bathroom, she saw Mr Hall who was in his bedroom with the door open. After KS entered the bathroom, she looked at her nose (presumably in a mirror) and noticed that it was ‘crooked’ so she ‘pushed’ it ‘back together’. Blood fell from her nose into the handbasin.[31] KS subsequently left the bathroom and returned to the accused’s room. Later that night she gave the accused and Mr Hall their presents. She said that when she gave the accused his present, he indicated that he felt ‘horrible’, for what he had done.[32]

    [31]   T55-57.

    [32]   T57-58.

26. Mr Hall gave evidence about these events. He said that on 24 December 2015 he came home from work at about 12.30 pm. As he was about to put his key in the front door lock, JL opened the door from inside and said: ‘You’re not [K]’. Mr Hall replied: ‘I’m not’. Mr Hall then went to his room and got changed. A short while later, Mr Hall left the boarding house and went shopping. When he returned, about 20 minutes later, the accused again opened the front door as Mr Hall was about to open it and remarked: ‘You’re not [K]’. Mr Hall walked past him and went to his room.[33]

    [33]   T218-219.

27. According to Mr Hall, the accused subsequently came into his room and gave him ‘a big sob story’ that KS ‘wasn’t really listening to his problems’. He remained in Mr Hall’s room complaining about KS for about 10 minutes. Mr Hall could not recall the details of the conversation because he wasn’t really interested, at the time, in what the accused had to say. After the accused returned to his room, Mr Hall heard him speaking loudly and angrily over the phone to KS. He said that he repeatedly demanded that KS come home and go out shopping with him.[34] The accused then went back to Mr Hall’s room and told him that KS was ‘coming home so that they could go shopping together’.[35]

    [34]   T220-221.

    [35]   T222.

28. About 20 minutes later, Mr Hall saw KS walk from the front door into the accused’s bedroom, as Mr Hall was walking from the kitchen to his room. He subsequently heard furniture being thrown around the room, doors slamming [that] type of thing’ and JL yelling at KS that she did not listen to his problems or care. He heard KS mumbling in reply, but he could not decipher what she said. However, she sounded upset. He estimated that the yelling lasted for about two to three minutes.[36]

    [36]   T222-223.

29. Mr Hall later saw KS walk past the open door to his bedroom and then enter the bathroom and close the bathroom door behind her. He did not see her face but recalled that she was ‘limping’. He estimated that KS was in the bathroom for about 10 minutes. He said that on more than one occasion the accused went to the bathroom, banged on the door and asked KS to let him in. On each occasion KS refused to let him in and told him to ‘piss off’. He then returned to his bedroom. When KS eventually came out of the bathroom, Mr Hall noticed that she had a mark on her nose and that her nose was bleeding. She then went back to the accused’s bedroom. He then went into the bathroom and saw blood in the wash basin.[37] Mr Hall confirmed that later that night, KS gave him and JL Christmas presents.[38]

    [37]   T224-225.

    [38]   T226.

30. The evidence Mr Hall gave in respect of this incident was clear, detailed and compelling. I accept his evidence of what he saw and heard. His evidence supports KS’s account in several material respects. He confirmed that the accused was angry with KS for having gone out alone; that he waited for her to return home, perhaps with increasing annoyance; and, that immediately after she returned home there was a heated argument in JL’s bedroom, from which she emerged limping and with a marked and bloodied nose. I will express my findings in relation KS’s evidence of what occurred in the bedroom, later.

    Plympton Park incidents

1. In January 2016 JL and KS moved into Unit 2, 72 Hawker Street Plympton Park. The Unit contained one bedroom and was one of 35 Units situated at that address. The Units were divided into several blocks. Unit 2 was in a block of three Units located at the front of the complex. The witness Anthony Hodge lived next door to JL and KS in Unit 3. A common wall separated their Units. The front door and windows of their Units faced Hawker Street. Their back doors faced a communal area containing clotheslines. Another prosecution witness, Dianne Livingstone, lived in a block of Units on the opposite side of the communal area.

   Collins incident: uncharged

2. KS testified that about one week after she and the accused had moved into the Unit, an acquaintance named Jason Collins stayed with them for several weeks. Collins slept on an air mattress in the lounge room while the accused and KS slept together in the bedroom. During Collins’ stay the accused suffered a grand mal epileptic seizure in the bedroom. Several days after Collins left the Unit, JL aggressively accused KS of having had sexual intercourse with Collins in the lounge room on the air mattress while he was having, or recovering from, the seizure. Although she told JL that he was wrong he repeatedly called her a whore and a slut and punched her in the head about 4-5 times.[39]

   [39]   T63-65.

3. KS was not questioned in-chief as to whether she suffered any injuries as a result of the blows to the head. In cross-examination, she was asked whether the accused broke her nose on that occasion, and replied ‘no’.[40] However, she then admitted that she told the police in a statement dated 16 May 2017 that as a result of JL punching her in the face:

   I think he has broken my nose and it started bleeding and I could feel my bone moving. I ended up with black eyes.

   [40]   T131.

4. When asked to explain the inconsistency between her evidence and her statement to police, KS said:[41]

   I did say that there was many incidents of violence and he had broken my nose twice … He used to hit me so often; yes. So then I will say if it’s what’s in the statement it is true what I said, I’ve not read them, I’ve not recollected a lot of it in my mind.

   [41]   T131.

5. Before I leave the Collins incident it is appropriate to mention an aspect of Ms Livingstone’s evidence. Ms Livingstone testified she first met KS and JL about one week after they had commenced living in Unit 2. She saw KS, for the first time, in the communal area which separated Blocks A and B. At the time KS was sitting on the ground underneath a clothesline, ‘sobbing and crying’.[42] She spoke to KS and then got her something to drink. KS then went inside her Unit.

   [42]   T183.

6. On the following day, or shortly thereafter she saw the accused, for the first time, and spoke to him about having seen KS in an upset state. The accused told Ms Livingstone ‘that he had been telling [KS] off because her behaviour upset him’.[43] He complained that KS was used to selling her body for drugs and that she had been coming on to a friend. He further said that he was ‘very upset’ with KS and that Ms Livingstone ‘shouldn’t be giving her any sympathy’.[44]

   [43]   T184.

   [44]   T184.

7. I find that Ms Livingstone was an honest and substantially reliable witness. I accept her evidence in relation to her observations of, and conversations, with KS and JL, as set out above. I note that the timing of those events correlates with when Jason Collins was staying in Unit 2, on KS’s account. Whether the accused was referring to Collins when he spoke to Ms Livingstone, cannot be determined and probably does not matter. The significance of Ms Livingstone’s evidence is that it supports KS’s allegations that JL resented her for having worked as a prostitute and that he held continuing concerns about her fidelity.

   Hall incident: assault causing harm - count 2

8. After Collins left the Unit, KS’s relationship with JL continued to deteriorate. He continued to accuse her of ‘jumping on cocks’ whenever she was away from the Unit longer than he wanted. He also accused her of having sexual relations with several of their male friends, including Scott Hall, who visited them at the Unit from time to time. He constantly complained of feeling ‘deceived and humiliated’.[45]

   [45]   T66-68.

9. KS testified that shortly before her birthday in July 2016, JL detained her in the Unit for an ‘evening and half the following day’. For much of the time she sheltered in the bathroom. KS said that she could not leave the Unit ‘because he was ‘laying’ into, and ‘punching’, her ‘the whole time’, resulting in her suffering a blackened left eye and substantial bruising and swelling to the left side of her face. KS said that she also had ‘breaks’ in her facial skin, which I understood to mean minor cuts or splits.[46]

   [46]   T69-70.

10. KS said that on the following day she went with JL to meet Scott Hall in the carpark of the ‘Highway Inn’ hotel, located on the corner of Anzac Highway and Marion Road, South Plympton. She said JL was remorseful and wanted to discuss his conduct with Mr Hall. At the time her face was still swollen. After meeting in the car park, Mr Hall drove them home and went inside with them. KS said that the accused told Mr Hall ‘how bad he felt’ and claimed that he could not remember what he had done. He also suggested to Mr Hall that he was possessed by ‘the devil child’.[47]

    [47]   T70.

11. Mr Hall also gave similar evidence. He recalled that that incident happened in about September 2016, rather than July 2016, as KS testified. Mr Hall said that as result of receiving a text message from the accused the night before he went to JL’s Unit at about 9.30 am. Both the accused and KS were at the Unit when he arrived. He saw that KS’s left eye was ‘pretty badly bruised’ and blackened and that the bruising and associated swelling extended down to her left cheek. There were also small abrasions on her face. Mr Hall said when he asked what had happened ‘they shrugged it off and changed the subject’. He was concerned that her eye-socket may been damaged and offered to drive JL to hospital for her to be x-rayed. The offer was declined.[48].

    [48]   T230-232.

12. Mr Hall said that he subsequently drove JL and KS to the Highway Inn bottle‑shop where KS and JL purchased drinks. He then sat with them in the hotel car park for about half an hour while they drank. He said that KS and JL did not speak to each other and that the atmosphere was ‘weird’. Mr Hall then drove them back to their Unit and left.[49]

    [49]   T232.

13. Mr Hall testified that about one week later, he returned to the accused’s Unit. He said that in the course of conversation the accused referred to having assaulted KS and remarked that ‘people shouldn’t let him get away with it’ and that ‘people should knock him out or punch him as well’. He admitted injuring KS but claimed that the incident occurred when he had ‘blacked out’.[50] The accused disclosed that following the incident he and KS ‘went to the GP [where] they got anti‑depressants’.[51]

    [50]   T23.

    [51]   T23.

14. I accept Mr Hall’s evidence that the accused made admissions to him. In my view, it matters not whether the incident occurred in July (KS’s evidence) or September (Hall’s evidence) or whether Mr Hall went inside the Unit and spoke to JL about the incident after they had attended the hotel (KS’s evidence) or whether Mr Hall spoke to JL at the Unit about one week later (Hall’s evidence). His account confirms that KS suffered a black eye and badly bruised face which the accused effectively admitted were caused by him.

15. Mr Hall said that he did not have much to do with the accused and KS after that visit and last saw them around Australia Day 2017.[52] In cross-examination, it was suggested to Mr Hall that on the last occasion he saw KS and JL taking or acquiring drugs. The relevant passage was as follows:[53]

    Q. That’s the very last time you saw [J] and [K] together, was that an occasion when they were either taking or acquiring drugs? I suggest that it was around Australia Day 2017.

    A.Yeah, they were buying, yeah.

    Q.So you were with them around Australia Day 2017?

    AI’m not sure of Australia Day, but I know there was a public Holiday around Australia Day. I’m…not sure if it was.

    Q.And that was both of them acquiring drugs. Sorry, you’ll need to actually say-

    A.Yes, yes, sorry, yes, yes.

    [52]   T234.

    [53]   T236.

16. There was no further questioning on the topic in cross-examination or re‑examination.

17. I accept Mr Hall’s evidence. However, it does not necessarily contradict KS’s evidence that she stopped using amphetamines at Bowden. First, it is to be observed that Mr Hall’s evidence does not identify the nature of the drug that was acquired. Secondly, and more significantly, even if it was amphetamines his evidence is silent on the circumstances of the transaction. For example, it is not known whether more than one lot or package of the drug was acquired. If only one lot was obtained, Mr Hall may have wrongly assumed that, because KS was with JL at the time, the drugs were for her as well.

    Front yard incident: uncharged

18. KS testified that, sometime after the July incident, the accused assaulted her at the front of the Units. KS said that the incident happened in the carpark and that she could not recall what she was doing in the carpark at the time. She initially said in-chief that she believed she was ‘going for a walk’ to ‘see one of the neighbours’[54] but subsequently said that she was ‘going to the letterbox which was ‘near the carpark’.[55] It is to be observed that the letterbox was situated at the entrance to the driveway of the complex and close to a garden which separated the front block from the footpath in Hawker Street. In other words, the garden was in front of the block containing the Units occupied by JL and Mr Hodge.

    [54]   T72.

    [55]   T73.

19. KS said that before she left the Unit the accused was taunting her and accusing her of ‘jumping on cocks’. After she exited the Unit, and while in the vicinity of the letter box, the accused ‘grabbed [her] by the hair and dragged [her] back inside’.[56] He then continued to ‘verbally have a go at her’, calling her a whore and a slut. He also accused her of having sex with one of the neighbours.[57] KS did not suggest that the accused physically abused her in any way after she had been taken into the Unit.

    [56]   T73.

    [57]   T73-74.

20. KS said that one of the neighbours must have seen or heard what had happened because two uniformed police officers arrived at the Unit some time later. She answered their knock on the front door and stepped outside to speak to them. KS said that JL stayed inside and stood behind the front door,[58] presumably to prevent the police from seeing him. When the police officers asked her what had happened, she told them that she was ‘okay’ and they left. KS said that she failed to make a complaint because she was aware that the accused would be able to overhear the conversation.[59]

    [58]   T74.

    [59]   T74.

21. In cross-examination, KS refuted defence counsel’s suggestion that there was never an occasion when the accused grabbed her by the hair and dragged her back into the Unit.[60]

    [60]   T142.

22. Mr Hodge gave evidence of an occasion when he saw JL assault KS in the front yard. His description of the incident shares similarities with the incident described by KS. At the time, Mr Hodge was sitting in his loungeroom looking through the front window and saw KS in the front garden. He believed that she was planting seedlings. He also made some of his observations of the incident through the closed front external security door because the internal wooden door was open.[61]

    [61]   T16.

23. Mr Hodge saw JL approach KS and overheard him say that he wanted her to go inside, or words to that effect. He then grabbed KS around the throat from behind with his left arm and dragged or made her walk backwards into the Unit.[62] Mr Hodge said that KS was upset and asked the accused, to ‘leave her alone’. She also tried to push him away but was unsuccessful.[63] Mr Hodge said that two to three days later, he observed that KS had a blackened left eye. [64]

    [62]   T164-166.

    [63]   T16.

    [64]   T168.

24. I was impressed by Mr Hodge. He was a convincing witness who performed reasonably well under cross-examination. I note that he admitted, in cross‑examination, that he gave evidence on two matters inconsistent with his statement to police dated 18 September 2017.[65] I need not detail the inconsistencies. In my view, they related to matters of relatively minor detail. They did not cause me to doubt that Mr Hodge gave an honest, cogent and substantially reliable account.

    [65]   T176-177.

25. There are some differences between the incident described by KS and the incident described by Mr Hall. KS said that she was grabbed by the hair whereas Mr Hall said she was grabbed around the throat and Mr Hodge made no reference to the police attending the Units. Mr Martin suggested that KS and Mr Hodge may have been referring to different incidents, but I think that is unlikely. I am satisfied that there was an occasion when KS was pulled or dragged back from the front yard into the Unit. I am satisfied that he either had her by the hair or with his arm around her throat, or both.

26. As mentioned, Mr Hodge made no reference to the police attending the Units. He was not examined or cross-examined on whether he saw them attend. However, Ms Livingstone testified that one afternoon she heard KS screaming from the direction of Unit 2. At the time Ms Livingstone was inside her own Unit. She repeatedly heard KS scream or call out ‘don’t hurt me, don’t hurt me’. Ms Livingstone estimated that the screaming lasted for about 30 minutes, however I think she is possibly mistaken on that point. In any event, Ms Livingstone said that she rang the police and reported the matter. She did not see the police attend the Units in response to her call but indicated that she would not have been able to see them from her Unit if they did attend Unit 2 that day.[66]

    [66]   T192-193.

27. I accept Ms Livingstone’s evidence. I am further satisfied that she called the police on the occasion when KS was dragged or pulled back into the Units as KS and Mr Hodge testified, noting that there is no suggestion in the evidence that there was any other occasion when the police were summoned to attend Unit 2, prior to the accused’s arrest.

    Threats against Mr Hodge

28. Ms Livingstone testified that ‘just weeks’ after JL had moved into Unit 2, she overheard him speak to Mr Hodge. At the time she was standing near the rear of her Unit and JL was standing in the communal area a few metres from her position. Mr Hodge was near the clothes lines, apparently, in the near vicinity of JL. However, Ms Livingstone’s view of Mr Hodge was obstructed by a fence. She could only see one of his shoulders. Ms Livingstone’s evidence of the conversation was as follows:[67]

    Q.What did you hear?

    A. It was terrible. He threatened Tony. He said to Tony that if he ever spoke to his missus ever again, because Tony had said ‘hello’ to [KS], that he would burn him alive in his house.

    Q. What did Tony say?

    A. Nothing.

    [67]   T189.

29. Immediately before the prosecutor elicited this evidence, defence counsel objected to its tender. Mr Jolly submitted that the evidence was inadmissible on two grounds: first, it constituted discreditable conduct evidence under s34P of the Evidence Act 1929 and the prosecution had failed to provide notice of its intention to tender this item of evidence; and, secondly, the prosecution had failed to question Mr Hodge, who was called before Ms Livingstone, as to whether he had been threatened by the accused.

30. The prosecutor, Mr Martin, said that he did not question Mr Hodge on this topic because there was no reference to it in Mr Hodge’s statement and the prosecution had not sought to question him prior to trial as to whether Ms Livingstone’s allegations were true. Mr Martin submitted that the evidence was admissible under s34P(2)(a) for the following non-propensity reasoning purposes:[68]

    It’s relevant because the prosecution case is the accused committed these offences out of jealousy. He was extremely possessive and above what could be considered normal and this is an example of how possessive he was with respect to [KS], such that he was willing to go to these lengths, make these threats if someone so much as spoke to her.

    [68]   T188.

31. I ruled that I would receive the evidence de bene esse and expressed the view that it would be appropriate for the prosecution to re-call Mr Hodge to determine if he could recall such a threat having been made against him.

32. Towards the end of the prosecution case, Mr Martin announced that Mr Hall would not be re-called. With counsel’s agreement I indicated that I would rule on the admissibility of the threat evidence when I delivered reasons for my verdicts. which I now do.

33. I exclude Ms Livingstone’s evidence in relation to the alleged threat on grounds of unfairness, and on the basis that the evidence is more prejudicial than probative. In my view it would be unfair to admit into evidence against the accused the alleged threat in circumstances where the evidence was not insignificant, and the prosecution had failed to obtain a statement from Mr Hodge prior to trial and to question him whilst he was in the witness box, as to whether any such threat was made. Furthermore, the absence of any evidence on this topic from Mr Hodge substantially reduces the probative value of Ms Livingstone’s evidence to the point where, in my view, it cannot be said that its probative value exceeds its prejudicial effect, noting as well that Ms Livingstone only purported to see Mr Hodge’s ‘shoulder’ at the time the accused spoke to him.

    January 2017 incident: counts 3 – 6

34. KS testified that on Sunday 29 January 2017 she spent the day at home with JL. She said that the accused was in a ‘horrible’ mood because he had consumed amphetamines during the preceding days and had not slept.[69] In cross-examination, KS said that on the day of the incident she and JL drank port, however, she did not drink a lot. She said that JL consumed methylamphetamine during the day, but she could not recall whether he consumed any during the night. She denied consuming any methylamphetamine.[70]

    Penis incident

    [69]   T 92.

    [70]   T129.

35. KS said that during the afternoon,[71] JL accused her of being flirtatious with other people and called her ‘a dog, a beach (sic) whale, a whore, a slut [and] treacherous’.[72] He subsequently asked KS to get a carving knife and tongs from the kitchen drawer and bring them to him. At the time he was sitting at the kitchen table. When she brought the implements to him, he pulled down his pants and asked her to cut off his penis. He suggested that due to her infidelity he had no use for his penis and cutting it off would be a way of getting back at her.[73] When she refused to help him, he became angry.

    [71]   T 88.

    [72]   T 77-78.

    [73]   T 79.

36. It is not clear on KS’s account what happened immediately thereafter, but at some stage, she left the kitchen and sat down in the loungeroom.

    Rape (fellatio) – count 4

37. KS said that while she was sitting in the loungeroom JL approached her and gave her a ‘choice’ of giving him a ‘head job’ or getting bashed. She then put his semi-erect penis in her mouth. She said that he moved his penis in and out of her mouth for about 4-5 minutes but did not ejaculate. While she performed the act of fellatio, JL continually called her a whore and a slut and demanded that she ‘do the job properly’. He also ‘hit’ her about the head.[74]

    [74]   T80.

38. At one point the accused commented that KS liked it ‘rough’ and pulled her hair. He also bit her ‘really hard’ on the right side of her neck and ‘took a chunk’. KS said that she did not mean that the accused took a chunk out of her flesh, rather she was trying to explain that it was ‘a really menacing bite, a very bad bite’.[75] Later in cross-examination, KS admitted being unsure as to whether she was bitten on the neck during the act of fellatio or at another stage during the events in the loungeroom.[76] (I note that KS was not asked how she and the accused were dressed, if at all at the time.)

    Assault (pelvic punches) – count 3

    [75]   T 84.

    [76]   T146.

1. KS testified that as she got up from the chair or sofa in which she had been sitting the accused ‘king hit her twice in the pelvic area using his fist’.[77] She admitted having trouble recalling accurately the sequence of events and was unable to remember whether the act of fellatio the subject of count 4, occurred before or after the assault the subject of count 3.[78]

   Compelled sexual manipulation (anus licking) – count 5

   [77]   T81.

   [78]   T81.

2. KS said in-chief, whilst they were in the loungeroom, the accused ‘aggressively’ pulled off a pair of long pants she was wearing and directed her to take off her ‘top’. She could not remember whether she was wearing underwear at the time, and if she was wearing underwear how it was removed. In any event, she was left with no clothes on.[79]

   [79]   T85-86.

3. In cross-examination, KS admitted that when she gave her statement to police on 30 January 2017 she did not assert that the accused pulled off her pants, rather she said:[80]

   He stripped off his clothes and forced me to get undressed. He gave me the choice of taking off my clothes or he would crack me in the head. I took off my clothes. We were at the kitchen table and I was sitting down.

   When asked why she had alleged in-chief that the accused had pulled off her pants aggressively, KS said:[81]

   Because he forced me to take, like take my pants, my clothes off, well I got my pants down my legs, halfway down, he yanked them off, he (indicates) took them off.

   She denied that this further evidence was a fabrication.

   [80]   T127-128.

   [81]   T128.

4. KS said that following the events in the loungeroom the accused, with his ‘pants down’, took her from the lounge room into the bedroom and sat her on the bed. [82] He then turned around, pointed his exposed buttocks at KS, ‘pulled his arse cheeks apart’ and demanded that she lick his anus. She complied because he was continually hitting her around the head.[83]

   [82]   T81.

   [83]   T81-82.

5. KS also said that during the anal licking incident, JL continued to call her a slut and a whore and threatened to chop off her head. KS deposed that she took his threat seriously because he had previously told her that he had served time in jail for chopping off a man’s leg.[84] No evidence was tendered as to whether, or not, the accused has been imprisoned for such an incident. I will discuss the admissibility of this evidence later.

   Fellatio: rape – count 6

   [84]   T82-83.

6. KS testified that about 10 minutes after she was forced to lick the accused’s anus, he demanded that she perform another act of fellatio upon him. She said that she was sitting on the bed at the time and that the accused stood over her and forced his penis into her mouth and told her to be ‘a good whore and slut’ and that she had ‘better do it properly this time’. KS deposed that while performing the act of fellatio the accused was ‘cracking [her] in the head at the same time’. KS estimated that this act of fellatio lasted about 20 minutes.[85] He then pushed her backwards on the bed, pulled her hair and bit her on the vagina.[86]

   [85]   T83–84.

   [86]   T84-85.

7. In cross-examination, KS agreed that she failed to tell the police in her statement dated 30 January 2017 that the accused bit her on the vagina but maintained that her evidence was true. She explained that she ‘was heavily traumatised and in a very bad way’ when she was taken to the Sturt Police Station to give her statement.[87]

   [87]   T118-120.

8. KS further testified that at some point during the sexual acts the accused told her that he was going to fly her daughter over from Perth and ‘fucking rape her’.[88] Towards the end of evidence-in-chief, KS reiterated that she did not want to engage in any of the sexual acts and submitted because she was ‘forced to’.[89]

   Purchase of alcohol and cigarettes

   [88]   T88.

   [89]   T97.

9. KS said that at about 10pm[90] she left the Unit with the accused and walked for about 10-15 minutes to the Highway Inn bottle shop where they purchased port. She also purchased cigarettes from a service station near the hotel. During the walk back to the Unit they stopped and sat down on a seat, near the tramline, and drank port.[91] KS said that the accused continued to call her a whore and a slut.[92] In cross‑examination KS she said that he was grabbing her left arm during the walk back to the Unit..[93] She further said that after they returned to the Unit he continued to ‘beat’ and ‘hit’ her..[94]

   [90]   T89.

   [91]   T89–90.

   [92]   T91.

   [93]   T125.

   [94]   T105.

10. It is to be observed that, in the course of her examination-in-chief, KS estimated that from the time the incident commenced on the Sunday until it finished that some 40 hours had elapsed..[95] It is clear from subsequent questioning in-chief[96] and cross-examination,[97] indeed it is self-evident, that the complainant was grossly mistaken in respect of her estimate of the duration of the incident. I reject Mr Jolly’s argument that she deliberately exaggerated her evidence on this topic.

    [95]   T91–92.

    [96]   T88-89 (XN), T123 (XXN).

    [97]   T121-124.

    Accused and KS attend shopping centre

11. On the afternoon of Monday 30 January 2017 KS and JL rode their bicycles from their Unit to Glenelg. There was a degree of confusion in KS’s evidence, as to the sequence of events that followed their arrival at Glenelg, which was clarified in cross-examination.[98] KS said that they initially went to a pharmacy where she obtained her regular prescription of suboxone, which she took to overcome her addiction to amphetamines.

    [98]   T92-94 (XN), T110-114, T146-151 (XXN).

12. They then attended a shopping centre on the corner of Jetty Road and Brighton Road where they locked their bicycles near a bench in the vicinity of the front entrance. The accused told her that he was going to the Centrelink office and walked off in that direction. KS remained in the vicinity of the shopping centre.

13. The accused later re-joined KS and went with her into the shopping centre where they purchased port from a liquor store. KS said that she then went outside and spent some time sitting on the bench, drinking port to ‘relax’. In cross-examination, KS disputed that the accused drank port with her. She said that he remained inside the shopping centre while she was drinking.[99]

    [99]   T149-150.

14. KS said that she subsequently asked the accused, who had re-joined her at some stage, if she could borrow one of his two mobile phones. Upon obtaining the mobile phone she went into the shopping centre toilets and rang her daughter. KS said that she stayed in the toilet, on and off, for about two hours because she was frightened and traumatised and did not want to go back to the Unit with the accused. At one point she went outside and returned the mobile phone to the accused. He was sitting on the bench at the time allegedly looking at ‘porn’ on his other mobile phone.

15. Some time later, whilst KS and the accused were sitting outside the shopping centre, Jamie Voakes arrived and spoke to them. According to KS, the accused told Mr Voakes that she had ‘just confessed to all the cocks she’s been jumping on’.[100]

    [100]  T92.

16. KS said that she was upset by JL’s lie and realised that his mistreatment of her would continue for as long as he wanted.[101] KS then went into the shopping centre and attended Woolworths’ service counter and asked a member of the staff to call the police. KS said that uniformed police officers later arrived at the service counter and spoke to her, by which time the accused had left.[102]

    [101]  T93.

    [102]  T93-94.

17. Before I turn to the subsequent events, I note that in cross-examination Mr Jolly established that in her statement to police, dated 30 January 2017, KS did not mention meeting Jamie Voakes or seeing porn on the accused’s mobile phone.[103] There is no substance in Mr Jolly’s implied criticism of KS on this issue because only a very brief reference was made in KS’s statement to the events at the shopping centre. The relevant passage in KS’s statement, upon which she was cross‑examined, was as follows:

    Today we went to Woolworths at Glenelg together. [JL] has still been calling me a liar and threatening me and asking me how many cocks I have jumped on. He has been saying …

    When I was at Woolworths, I called the police because there was no way … I was going to go home tonight with him.        

    [103]  T116-117.

18. It is apparent that KS was not asked to explain, in any detail, what occurred at the shopping centre prior to the arrival of the police. Furthermore, when the accused was later interviewed by police, he gave an account which was not dissimilar to KS’s account of the events at the shopping centre, including Mr Voakes attending and speaking to them prior to KS disappearing into the shopping centre. The absence of any reference in KS’s statement to Mr Voakes, or to the accused viewing porn on his mobile phone, does not undermine KS’s credibility or reliability, in the slightest.

    KS attends police station

19. KS was subsequently taken to the Sturt Police Station where a signed written statement was taken from her. At about 9.45 pm a police officer took several photographs of KS (exhibit P3) which showed the following:

    ·    Photograph 1- substantial bruising on the back of KS’s right upper arm, extending from a point just below her armpit to near her elbow (‘right arm bruises’)

    ·    Photograph 3 - bruise on the right side of KS’s neck (‘neck mark ’)

    ·    Photograph 3 - vertical linear mark on KS’s right cheek (‘linear mark’)

    ·    Photograph 4 - bruise on the back of KS’s left upper arm (‘left arm bruise’)        

    Causes

20. KS gave evidence in relation to the causes of the injuries photographed by police.

    Neck mark

21. In-chief, KS said that the mark was caused by the accused biting her during the sexual assault.[104] In cross-examination, she denied that it was a ‘lovebite’ left by the accused during consensual sexual activity.[105] No expert witness was called to interpret the mark. There do not appear to be any teeth marks on KS’s neck, but it must be remembered that the photographs were taken about 24 hours after the incident. I am not able to determine the cause or likely cause of the mark.

    Linear mark

    [104]  T83-84, T96.

    [105]  T102.

22. In chief, KS said that this was a fingernail ‘gouge mark’ caused by the accused grabbing her face during the sexual assault.[106] The mark in the photograph is consistent with her description of a ‘gouge mark’ that has crusted or commenced to crust. However, I am not able to determine the age of the injury or whether it was necessarily caused in the manner described by KS. In cross-examination, KS maintained that the injury was inflicted during the sexual assaults.[107] However, she conceded that in the statement she made to the police on 30 January 2017 she failed to mention the ‘gouge mark’.[108]

    Left arm and right arm bruises

    [106]  T96-97.

    [107]  T108.

    [108]  T107.

23. In relation to the left arm bruise, KS said in-chief that it was a ‘thumb’ or ‘finger’ mark caused by the accused grabbing or holding her down. However, she did not expressly assert that it occurred on the night of the alleged sexual assaults.[109]

    [109]  T97.

24. In relation to the right arm bruises, KS gave the following evidence in‑chief:[110]

    Q. Do you know how you got that?

    A.That was when [JL], grabbing at me, and pulling me around, like here at the back of my arm here (indicates). 

    Q.Was he grabbing that area the day before the sexual incident?

    A.Yes, yes.    

    (my underlining)

    [110]  T94-95.

25. In cross-examination, Mr Jolly mistakenly put to KS that it had been her evidence that the right arm bruises were caused ‘during the night of the sexual assault’. However, when he asked, if that was right, KS replied ‘That is right’.[111]

    [111]  T105.

26. Mr Jolly then cross-examined KS in relation to the left arm bruise. The relevant evidence was as follows:[112]

    Q.So, the bruising we can see on your [left] upper arm … was caused during the night of the sexual assault?

    A.… Yes, I did say that. When I returned back to the house, after going to Anzac Highway bottlo, going back to the house, he did continue to beat, to hit me and like grab at me. Okay I did say I was not sure, and I kept inside all of those things and those times.

    [112]  T105.

27. In the course of giving that answer, KS demonstrated that the accused left the mark on the inside of her left upper arm by grabbing it with his fingertips.[113]

    [113]  T105.

28. Subsequently KS admitted to being uncertain as to when the left and right arm bruises were inflicted on the night of the sexual assaults but maintained they were not present on her arms ‘before the sexual assaults occurred’.[114] KS was then cross-examined on the contents of the statement she gave to police dated 30 January 2017. She admitted that in her statement:

    ·she said that the ‘bruise on my right arm and my left arm … are from last week’[115]  

    ·she failed to mention that she had suffered a gouged cheek.[116]

    [114]  T106.

    [115]  T106.

    [116]  T107.

29. When asked to explain why she had said that to the police, KS replied:

    He was being violent with me before the sexual assault. Its because of the sexual assault that I went to the police and I was very heavily traumatised and in a very bad state.[117]

    [117]  T108.

30. KS then added that the ‘bruises occurred in the sexual assault, throughout the whole time’.[118]

    Findings

    [118]  T108.

31. Leaving aside the neck bruise, I am not satisfied that any of the marks that KS exhibited when she spoke to police were necessarily caused during the incident on the Sunday 29 January 2017.  In my view, there was genuine confusion in KS’s testimony as to when the marks were inflicted. In relation, to the gouge mark on the KS’s cheek, and the substantial bruises on her right upper arm, I am satisfied that they were caused by the accused in the course of some assault on her, but I am not satisfied that they were inflicted during the incident in question.  As I have said they may well have been caused at an earlier point in time.  As for the minor bruise on KS’s left arm this may have been caused in any one of a number of ways. Unbeknownst to KS, it may have been inflicted accidentally in quite innocent circumstances. I accept that the neck mark was caused on Sunday 29 January or possibly the following day, but as I have said I cannot determine objectively its cause or likely cause.

32. In short, the marks exhibited by KS when she was spoken to by the police neither strengthen nor weaken the prosecution case, as to what occurred during the sexual incident.  I regard the evidence as equivocal. 

    Police arrest accused

33. At about 10pm on Monday 30 January 2017 DS Kelly Weston and DS Dwayne Longbottom, and two other members of the Sturt Criminal Investigation Branch, attended the accused’s Unit where he was questioned and arrested by DS Weston. He was then conveyed to the City Watch House (CWH) where he was charged. DS Weston’s conversations with the accused at the Unit and further conversations she had with him during the trip to the CWH were recorded on an audio-visual recorder (disc of recording - Exhibit P1). A transcript of the recording (‘Appendix A’) was used at trial as an aide-memoire. The following is an outline of the recorded conversation.

34. After the police knocked, the accused opened the front door, and was informed by DS Weston that they were police officers. He replied: ‘No worries, I’m not in any trouble, am I?’ When asked if there was anyone in the Unit, the accused replied that he was waiting for his girlfriend to come home. He was then advised that KS had attended the police station ‘to report something’. Subsequently, he was asked for identification and said: ‘What she told you about ex-husband’s raping her and shit, is that what you are talkin’ about?’ DS Weston told him that she would discuss KS reasons for attending the police station later.[119]

    [119]  Appendix A lines 3-32.

35. After obtaining the accused’s personal details, DS Weston informed the accused that KS had reported to police that he had assaulted and sexually assaulted her. The accused denied the allegations and added that they had been ‘on speed for the last four days’. The accused was then arrested and then given his arrest rights under s79A of the Summary Offences Act 1953 (SA). In the course of being informed of his rights, the accused volunteered the following statements:

    ·‘I’m incapable of doing something like that’[120]

    ·‘I’ve been protecting her’[121]

    ·‘[KS] and I have been on amphetamines … neither of us have slept since …we woke up on Thursday morning’[122]

    [120]  Appendix A line 96.

    [121]  Appendix A line 97.

    [122]  Appendix A lines 105-107.

36. During the trip to the CWH, DS Weston informed the accused, in broad terms, of KS’s sexual allegations. He admitted that there had been sexual activity between them the night before but stated that it was consensual. He said it commenced with him ‘giving her oral sex’ and concluded with her performing ‘oral sex’ on him. The two acts of oral sex were separated by the accused and KS engaging in ‘penis vagina intercourse’.[123] The accused denied that he made her lick his anus and further denied using any force, or making any threats, against KS.[124] He said that they engaged in ‘lovemaking’, which he described as ‘soft and sensual’.[125]

    [123]  Appendix A lines 149-157.

    [124]  Appendix A lines 159-178.

    [125]  Appendix A line 180.

37. The accused suggested that KS may have made false allegations because they had argued the previous night, as a result of KS having ‘finally admitted to playing up’.[126]  He said that they had clashed over the weekend but it was nothing out of the ordinary for them.[127] He commented that he had a ‘bee in his bonnet’ about her ‘playing up’ on him[128] but insisted that he still adored her.[129] He then said:[130]

    I catch her out for playin’ up on me and suckin’ a guy’s dick and she’s sayin’ that I forced her to suck mine. Not a chance. What the hell are you doin’ [KS]? Not a chance.

    [126]  Appendix A line 182.

    [127]  Appendix A line 200.

    [128]  Appendix A line 204.

    [129]  Appendix A line 252.

    [130]  Appendix A line 253.

38. Towards the end of the conversation, the accused volunteered that he had been violent to KS. He said:[131]

    I’ve been violent with her er I jobbed her in the head that was another play-up that she did. … we had a guy over and she gets up in the middle of the night, drops heaps of Valium and goes and jumps on his dick and ridin’ him while he’s asleep. No worries [KS], good on you girl.

    [131]  Appendix A line 257.

39. The accused also said that KS liked ‘rough’ sex, but he could not bring himself to do it.[132]

    [132]  Appendix A line 260.

    Police interview accused at CWH

40. At 11.04 pm DS Weston and DS Longbottom commenced an audio-visual recorded conversation with the accused at the CWH. The interview concluded at 11.44pm (disc of recording - Exhibit P2). A transcript of the recorded interview (Appendix B) was used at trial as an aide-memoire. The following is a summary of the account the accused gave during the interview.

    Relationship with KS

41. The accused was not questioned in relation to the specific incidents of violence (charged and uncharged) that KS alleges were perpetrated by the accused prior to the night of 29 January 2017 when the sexual incidents are alleged to have taken place. However, in the course of the interview, the accused made general admissions to having engaged in threatening and physically abusive conduct against KS. For example, he said:

    ·he ‘hit her in the jaw’ in about ‘May, June, July’ of 2017;[133]

    ·she stayed in a ’domestic violence house’, several months earlier, because he had been ‘verbally aggressive’[134] and uttered some ‘pretty nasty words;’[135]

    ·(KS was not examined or cross-examined as to whether she had in fact sought refuge in domestic violence accommodation)

    ·he was ‘always threatening’ KS because he was ‘just an angry person’;[136]

    ·he had called her a whore and a slut;[137]

    ·he had made threats to ’crack her in the head’ and to ‘cut off her head’;[138]

    ·he had made ‘all kinds of verbal threats but as far as carrying any of it out nah’.[139]

    [133]  Appendix B line 103.

    [134]  Appendix B line 105-105.

    [135]  Appendix B line 107.

    [136] Appendix B line 72-82.

    [137]  Appendix B line 451-452.

    [138]  Appendix B line 457-458.

    [139]  Appendix B line 458.

1. The accused suggested in the interview that KS was also aggressive. He said that they both had ‘violent pasts’ and referred to an occasion when KS allegedly ‘unleashed a barrage of punches and kicks’ because he had ‘smiled at a girl in the city’.[140] This alleged incident was put to KS, and denied by her, in cross‑examination.

   [140]  Appendix B line 460.

2. The accused referred to another incident that occurred after they ‘first met’.[141] He said that on that occasion he broke KS’s nose after she had broken his.[142] As earlier mentioned, this admission is broadly consistent with KS‘s description of one of the uncharged incidents at Bowden.[143]

   [141]  Appendix B line 474.

   [142]  Appendix B line 468.

   [143]  See [17]-[22] herein.

3. The accused insisted that despite the violence he loved KS and that every day they would say to each other ‘we’re soul mates’ and that they were ‘so lucky to be with each other’.[144]

   [144]  Appendix B line 473.

4. The accused was further questioned on the topic of ‘rough sex’. Consistent with his earlier remarks, he suggested that KS had previously wanted to engage in sex of that kind, however he was ‘incapable of it’ and had ‘always knocked her back’.[145]

   Days leading up to night of sexual incidents

   [145] Appendix B line 441-444.

5. The accused stated that since the preceding Friday he and KS had injected amphetamines, approximately 3-4 times,[146] and that neither of them had slept.[147] When asked to explain what had happened on the night of the incident the accused suggested that the previous days and nights had blended together because of the drugs he had consumed.[148] The accused suggested that during that period, they had numerous arguments regarding his belief that she had been unfaithful. He said the arguments had been ‘going on for days’[149] and that they had been ‘up and down’ and ‘in tears at different times’.[150]

   Night of sexual incidents

   [146]  Appendix B line 483-508.

   [147]  Appendix B line 48.

   [148]  Appendix B line 48.

   [149]  Appendix B line 108-109.

   [150]  Appendix B line 323-326, 557.

6. The accused claimed that on the night of the incident they were both drinking and using drugs. They eventually went to bed and began cuddling and ‘worked into [a] soft general lovemaking session’. KS then climbed on top of him.[151] He then gave her ‘heaps of oral sex’ which caused her to ‘right off’. He said that ‘she was loving it’. They then engaged in penile vaginal sexual intercourse, after which she performed ‘oral sex’ on him[152] until he eventually ejaculated.[153] He insisted that their sexual activity was consensual and denied using any force,[154] and specifically denied punching KS in the pelvic area.[155]

   [151]  Appendix B line 52-62.

   [152]  Appendix B line 54.

   [153]  Appendix B line 353.

   [154]  Appendix B line 65-70, 338, 517-518.

   [155]  Appendix B line 588.

7. The accused said that after the sexual activity came to an end, he sat down in the loungeroom where he downloaded some material on his mobile phone while KS cleaned the house, remarking that she did ‘a top job’.[156]

   [156]  Appendix B line 540-545.

8. The accused said that they subsequently had an argument about her having been unfaithful to him. He claimed that KS admitted masturbating and performing oral sex on ‘a guy that she used to get on with’.[157] He stated that he knew KS had been lying to him for the past 15 months and described her conduct as a painful betrayal.[158] He later added that the ‘lies’, ‘treachery’ and ‘betrayal’ annoyed him.[159] The accused said that they were both verbally, but not physically, aggressive, during the argument.[160] He admitted that at one point, while he was sitting at the kitchen table, he asked KS to grab a carving knife and hold his penis while he cut it off, if she considered that it was important to have affairs with other men.[161] The accused told the police that he was not serious and that his remarks were an expression of the pain he was feeling.[162] He claimed that following that conversation he suffered a grand mal seizure.[163]

   Purchase of alcohol and cigarettes

   [157]  Appendix B line 52, 370-385.

   [158] Appendix B line 119.

   [159]  Appendix B line 510-512.

   [160]  Appendix B line 111-117, 126-128.

   [161]  Appendix B line 142-152, 197-208, 564-580.

   [162]  Appendix B line 153-160.

   [163]  Appendix B line 186-195, 207.

9. The accused said that at about midnight, after he had recovered from the seizure, he left the Unit with KS and walked to a service station near the Anzac Highway Inn hotel where KS purchased cigarettes. They then went to the hotel bottle shop and purchased drinks. They sat in the carpark drinking and waited for a person to deliver the ‘dope’. After they obtained the drugs they walked home. He said that when he returned home, he looked at his mobile phone and saw that the time was 2:09am. They then went to bed.[164]

   Accused and KS attend shopping centre

   [164]  Appendix B line 385-395, 233.

10. The accused claimed on the following morning, KD initiated consensual sexual activity which resulted in the two of them performing ‘oral sex’ on each other.[165]

    [165]  Appendix B line 526-532.

11. Later that day they rode their bicycles to Glenelg where they called into a pharmacy for KS to obtain Suboxone. They then went to the shopping centre where they purchased port and lemonade. He then attended a nearby Centrelink office to obtain a pension loan. He said that after ‘they’ returned to the shopping centre KS went into Woolworths and purchased food for dinner. When she re-joined him, they sat outside the shopping centre drinking port and smoking cigarettes.[166]

    [166]  Appendix B line 92, 249-259.

12. The accused said that, at some point, her ‘ex-boyfriend’ Jamie arrived on a pushbike. He told Jamie that it looked like KS had ‘grown up’ and was ‘finally starting to admit all the affairs’.[167] (The accused then volunteered to DS Weston that he was ‘not holding that against her’ and that he loved her.)[168] KS then told him that she had to go to the toilet and went inside the shopping centre with her handbag containing the food and drinks they had purchased. Because he was looking forward to having tea and getting a good night’s sleep, the accused told her not to be long.[169] When asked whether KS was upset at the time, the accused replied that they were both upset.[170]

    [167]  Appendix B line 96; see also 307-311.

    [168]  Appendix B line 98.

    [169]  Appendix B line 96, 293-294, 278-307.

    [170]  Appendix B line 314-315.

13. When she failed to come out of the shopping centre he went home.[171] He denied being in the vicinity of Woolworths when the police arrived to speak to KS. He said he had ‘no idea’ what was going on, and that he was expecting KS at the door when the police arrived at the Unit, later that night.[172]

    Complainant’s injuries

    [171]  Appendix B line 302-303.

    [172]  Appendix B line 273-275.

14. The accused was questioned about some of the bruises the police had observed on KS when speaking to her earlier that night.

15. He denied biting KS’s neck during the incident on the Sunday night. He said that the mark on her neck was a ‘hickie’ which he gave her while they were engaging in sexual activity on the Monday prior to going to the shopping centre.[173] In relation to the bruises on KS’s right arm, the accused said that he did not know how they were caused.[174] However, he claimed that on the Monday morning he asked KS: ‘What’s that under your arm?’ and enquired whether she had fallen over. According to the accused KS said that she had fallen in the shower that morning and hit ‘the middle of her head’ on ‘the corner of the mirror and wall beside the sink near the shower cubicle’.[175] He was not questioned about the other marks.

    APPLICABLE LAW

    [173]  Appendix B line 611-612.

    [174]  Appendix B line 644-648.

    [175]  Appendix B line 658-666.

    Fundamental principles

16. I have kept in mind, the following fundamental principles.

17. In relation to each charge the accused is presumed to be innocent of the charge unless and until the prosecution proves his guilt by establishing beyond a reasonable doubt all of the elements of the charge. No onus is cast upon the accused.[176] The accused cannot be convicted of a charge unless I am satisfied beyond reasonable doubt that KS gave a truthful and reliable account which established the essential elements of the charge.[177]

    [176]  Woolmington v DPP [1935] AC 462; Moffa v The Queen (1977) 138 CLR 601 at 607-8; Howe v The Queen (1980) 32 ALR 478 at 438; He Kaw Teh v The Queen (1985) 157 CLR 523;

    [177] Douglass v R (2012) 290 ALR 699; R v Calides (1983) 34 SASR 355

18. The accused exercised his right to remain silent in court. The accused’s silence in court is not evidence against him, does not constitute an admission by him, may not be used to fill gaps in the evidence tendered by the prosecution case and may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt.[178]

    [178]  Azzopardi & Davis v R (2001) 205 CLR 50 at [51].

19. The accused, however, answered questions when interviewed by the police. The accused made inculpatory statements or admissions and exculpatory statements. It is well established that where a record of interview is put into evidence the trier of fact can act on the exculpatory parts as well as any admissions. In other words, exculpatory parts of interviews are evidence of the facts available to the trier of fact for their consideration.[179] However, the trier of fact is entitled to give the exculpatory statements less weight having regard to their self-serving nature and the fact that they were not made on oath or subject to cross-examination. In Mule v R[180] the High Court said:[181]

    It was not a derogation from the appellant’s right to silence for the trial judge to point out that the statements made in the course of the interview were not on oath. The expression “right to silence” is used to refer to a number of distinct legal rules. It is a useful shorthand expression but it is a general description which does not always provide a safe basis for reasoning to a conclusion. In the present case what is important is that the appellant did not give evidence at his trial. In the days when, in most Australian jurisdictions, accused persons were entitled to make unsworn statements in court, it was not regarded as a derogation from their rights for judges to direct juries that what an accused said in these circumstances was to be regarded as “a possible version of the facts” and that jurors should “consider it with the sworn evidence, giving it such weight as it appears to be entitled to in comparison with the facts clearly established by evidence”. Nor was it regarded as such a derogation for a judge to comment that a statement was not on oath, and was not tested in cross-examination, and might not be considered as weighty as the evidence of witnesses under oath. The trial judge had already, uncontroversially, referred to the fact that the appellant had elected not to give evidence in court. It is difficult to explain the right to silence without drawing attention to the silence. Furthermore, as the judge pointed out, the appellant’s silence was not complete. Having referred to the fact that the appellant did not testify on oath in court, having explained that it was his right to remain silent in court, and having warned the jury against inappropriate reasoning, the judge, when he came to deal with the out of court statements made by or on behalf of the appellant, could well have thought it proper to tell the jurors that it was open to them to evaluate those statements in that light. They could also evaluate those statements in the light of the fact that they were self-serving. As a matter of law, it was correct to tell the members of the jury that they were not obliged to attach the same weight to all the statements made in the interview, and that it was for them to decide the weight to be given to particular statements. As an observation on the facts, in the circumstances of this case, it was not inappropriate to point out that, while the admissions of possession were accepted by both sides at the trial to be true, the assertions about purpose were in dispute, that they were not supported by any sworn testimony and that they were self-serving. It would also not have been inappropriate to point out that the jury might think them to be of less weight than the admissions.

    Citations omitted

    [179]  M v R (1994) 62 SASR 364; R v McCarrol [2004] WASCA 131 at [19].

    [180] (2005) 221 ALR 85.

    [181] (2005) 221 ALR 85 at [22].

    Elements of offences

    Assault (count 3) and Assault Causing Harm (counts 1 and 2)

20. Assault is an offence against s20 (1) of the Criminal Law Consolidation Act 1935 (CLCA) which provides that ‘a person commits an assault if the person, without the consent of another person (the victim)’, inter alia, ‘intentionally applies force (directly or indirectly) to the victim’. However, under s20(2) an intentional application of force does not amount to an assault if (a) the conduct ‘lies within limits of what would be generally acceptable as normal incidents of social interaction or community life’ and (b) the conduct is justified or excused by law’. An accused person’s conduct would be excused by law if he acted in lawful self-defence. No issue of self-defence arises in the present case.

21. If the assault causes the victim ‘harm’, then the person is guilty of the more serious offence under s20(4). Harm is not defined in the CLCA, for the purposes of s20(4), but takes its meaning from the common law; namely, any hurt or injury calculated to interfere with health or comfort of the victim, not necessarily permanent, but more than merely transient or trifling.[182]

    [182]  R v Donovan [1934] All ER REP 207.

22. Accordingly, in relation to each of the first three counts in order to establish the accused’s guilt, the prosecution must prove beyond reasonable doubt that he intentionally applied force to KS by punching her in the manner alleged. In relation to counts 1 and 2 the prosecution must further prove that the assault caused KS harm, in the sense explained above.

    Rape (counts 4 and 6)

23. Rape is an offence under Division 11 of the CLCA. Pursuant to s48(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 or anus by any part of the body of another person, fellatio and cunnilingus (s5). In the present case the accused is charged in each of counts 4 and 6 with raping KS by causing her to perform an act of fellatio.

24. 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;

    (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.

    …

25. ‘Reckless indifference’ is defined in s47 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, 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.

26. In the present case in relation to each of the alleged acts of fellatio, there is no suggestion that KS initially consented and withdrew her consent after the accused had inserted his penis into her mouth and before he removed it. Accordingly, in relation to each of counts 4 and 6, in order to prove that the accused is guilty, the prosecution must prove beyond reasonable doubt that: (i) he inserted his penis into KS’s mouth; (ii) she did not consent to the act; and (iii) he knew she did not consent or he was recklessly indifferent in that regard.

    Compelled Sexual Manipulation (count 5)

27. Pursuant to s48A(1) of the CLCA, ‘a person (the offender) is guilty of an offence ‘if he or she, for a prurient purpose, compels a person to engage, in’ inter alia. ‘an act of sexual manipulation of the offender’. Section 48A(2) provides the following relevant definitions:

    compels - a person compels another person if he or she controls or influences the other person’s conduct by means that effectively prevent the other person from exercising freedom of choice

    prurient purpose - a person acts for a prurient purpose if the person acts with the intention of satisfying his or her own desire for sexual arousal or gratification or of providing sexual arousal or gratification for someone else

    sexual manipulation means the manipulation by a person of another person’s genitals or anus (whether or not including sexual intercourse)

28. In order to prove that the accused is guilty of count 5 the prosecution must prove beyond reasonable doubt that: (i) KS manipulated the accused’s anus by licking; (ii) he compelled KS to perform the act (by means that prevented her from exercising freedom of choice); and (iii) that he acted for a prurient purpose in the sense defined above.

    Discreditable conduct evidence: admissibility and use

29. Following the accused’s arraignment at the commencement of the trial, and prior to opening the case for the prosecution, Mr Martin informed the court of the prosecution’s intention to tender evidence of discreditable conduct on the part of the accused in the form of the uncharged acts of violence allegedly committed against KS. He submitted that the evidence was relevant and admissible pursuant to s34P(2)(a) of the Evidence Act 1929 (SA) for the following purposes:[183]

    ·to place the charged offences in their ‘proper context’;

    ·to explain why KS ‘stayed in the relationship’;

    ·to explain why KS ‘failed to complain or report [her] allegations at an earlier time’; and,

    ·to explain why she submitted to the accused in relation to the sexual offences (counts 4, 5 and 6)

    [183]  T7.

1. Mr Jolly conceded that the evidence of the uncharged acts of violence were admissible for the purposes contended for by the prosecution. Nevertheless, I indicated that I would prefer to rule on the admissibility of the evidence after I had heard the evidence.

2. Before I deliver my ruling, I should point out that Mr Martin conceded that the prosecution could not rely on the evidence of uncharged acts to establish that JL had a ‘particular propensity or disposition’ to use violence against KS, pursuant to s34P(2)(b). He conceded that he was estopped from using the evidence for propensity purposes because the prosecution had failed to file a notice of an intention to use the evidence for that purpose (s34P(4)). Section 34P(5) vests in a court a discretion to dispense with the notice requirement. However, no application was made under s34P(5).

3. In my view, there is a cogent argument that the evidence of uncharged acts would have been relevant and admissible in relation to each of the charged offences because the evidence showed that the accused, had a propensity or disposition to threaten and physically abuse KS.  However, the point was not argued, and it would be unfair to now consider admitting the evidence on that basis when the defence was not afforded the opportunity to make submissions on the point.

   Ruling:

4. Pursuant s34P(1) discreditable conduct evidence is inadmissible when it is sought to use the evidence for the purpose of suggesting that ‘the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct’ (impermissible use). In other words, the provision prohibits reasoning that a person who has engaged in discreditable conduct is, by reason of that fact alone, more likely to have committed the charged offence.[184]

   [184] R v C,CA [2013] SASCFC 137 at [74] (Kourakis CJ).

5. The section, however, provides for the admission of ‘discreditable conduct’ for permissible uses that rely on proof of the defendant’s particular propensity as circumstantial evidence of a fact in issue and for permissible, non-propensity uses. The test for the admission of the latter use is less demanding than the test for admission for a propensity use. Provided the probative value of the discreditable conduct evidence substantially outweighs any prejudicial effect the evidence may have on the defendant it may be admitted for one or more non-propensity uses.[185]

   [185] See Johnson v The Queen [2018] HCA 48 at [2].

6. In the present case, the evidence of uncharged acts of violence (including threats of violence) falls into the following categories:

   ·evidence given by KS;

   ·evidence given by Mr Hall;

   ·evidence given by Mr Hodge;

   ·evidence given by Ms Livingstone (except of course the evidence I have excluded); and,

   ·admissions made by the accused in his police interviews.

7. In my view, each category of evidence is relevant and admissible under s34P(2)(a) for the non-propensity purposes. If the evidence of the uncharged acts is accepted, then it serves to show the existence of a relationship marked by the accused’s ongoing use of violence against KS which was motivated by his jealousy of other men and his resentment of her past.

8. The evidence is relevant to on the following grounds:

   ·First, to explain that the charged offences were not committed ‘out of the blue’. Without the history of violence, it may have appeared unusual that the accused would have resorted to violence on isolated occasions. In other words, the uncharged acts place the charged offences in context in circumstances in which evidence of the charged offences might otherwise present as inexplicable.[186] 

   ·Secondly, KS’s failure to leave the accused, to report him to the police and to resist him on the charged occasions can only be properly understood in the light of the history of abusive conduct to which she was subjected.[187] The reasonable inference to be drawn from KS’s evidence is that she became inured to his violent and demeaning treatment. That circumstance, together with her dependence on the accused serves to explain her failure to leave or to report him. 

   ·Thirdly, KS’s failure to complain or to leave the accused may also explain an increasing confidence in the accused to act as he did, culminating in the alleged sexual offending on 29 January 2017.[188]

   ·Fourthly, the history of violence and other demeaning treatment tends to show that the accused harboured a smouldering resentment of KS which provides a motive for him to have acted as he allegedly did on each of the charged occasions.[189] 

   [186] Johnson v The Queen [2018] HCA 48 at [19 per the Court; Roach v The Queen [2011] HCA 12; (2011) 242 CLR 610 at 624 [42] per French CJ, Hayne, Crennan and Kiefel JJ.

   [187] See Johnson v The Queen [2018] HCA 48 at [19} per the Court and authorities cited therein; see also R v El-Hayek [2004] NSWCCA 25; R v Nieterink (1999) 76 SASR 56 at [41].

   [188] See Johnson v The Queen [2018] HCA 48 at [19]; HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 at [23] per Kieffel J.

   [189] see Harriman v The Queen (1989) 167 CLR 590 at 631 (McHugh J) and authorities discussed therein.

9. In my view, the probative value of the discreditable conduct evidence, substantially outweighs any prejudicial effect it may have on the accused and, accordingly, is admissible under s34P(2)(a).

10. Indeed, in a case of trial by judge alone, the judge is expected when considering relevant evidence to have the capacity to ignore inadmissible evidence or put aside the prejudicial effect of admissible evidence. That is the primary reason for defendants electing for trial by judge alone. The following remarks of King CJ in Abrahamson v The Queen [190] are germane:[191]

    The principle that a judge should exclude evidence, the prejudicial effect of which outweighs its probative force, can have very little part to play in a trial by judge alone. The rule is designed to protect juries from exposure to prejudicial material which has but little probative force. The learned judge in this case was quite able to discard any prejudicial effect of evidence of this kind and to focus on such probative weight as he considered that it properly bore. In my opinion, therefore, the evidence was properly admitted.

    [190] (1994) 63 SASR 139.

    [191] (1994) 63 SASR 139 at 143.

11. The evidence of uncharged acts had been used by me for the non-propensity reasons I have identified. The evidence had not been used to reason that because the accused committed one or more of the uncharged acts that he is by reason of that fact alone more likely to have committed the charged offence, as prohibited by s34P(1) or that he has a particular propensity or disposition to engage in violent conduct (s34P(2)(b)). Further, I have borne in mind the ‘anti-substitution’ warning viz that proof the accused committed one or more of the uncharged acts cannot be used as a substitute for proof that he committed any of the charged offences.[192]   

    [192] R v Maiolo [No2] (2013) 117 SASR 1 at [81]-[84]; R v Grech [1997] 2 VR 609; R v Beserick (1993) 30 NSWLR 510.

    Cross-admissibility

12. In the trial no submissions were made on the issue of cross-admissibility in relation to the charged offences. In my view, the evidence relating to each of counts 1 and 2 is relevant and admissible in evaluating the evidence concerning the other count for the same reasons that make the uncharged acts relevant and admissible for non-propensity purposes. Furthermore, the evidence relating to those two counts is relevant and admissible on the same grounds in relation to the offences alleged to have been committed on 20 January 2017 (counts 3-6). I emphasise that in this context I have not used the evidence in contravention of the general prohibition in s34P(1), or as evidence of a particular propensity or disposition, or as a form of substitution evidence.

    CONSIDERATION

13. I turn to express my findings on KS’s evidence, and other key features of the evidence items, and to apply my findings to the charges.  

    Accused’s interviews: assessment

14. A convenient starting point is to consider the accused’s records of interview.

15. The whole of the contents of the interviews amounted to evidence to which I have had regard. However, the accused’s statements were not sworn testimony or subject to cross-examination and I have given them less weight than the sworn evidence put before me. Furthermore, the exculpatory statements made by JL were not made against his interests.  I have given them less weight than the admissions he made in relation to his use of violence and threats of violence against KS. 

16. But more than that, I regard his exculpatory account as inherently improbable. According to the accused, on the night of 29 January 2017 they engaged in ‘soft …lovemaking’ against the background of the two of them over several days having used drugs, suffered sleep deprivation and argued over his allegations that she had continually lied and betrayed him. More significantly, the accused told police that following the episode of consensual sexually activity, and after KS had done a ‘top job’ of cleaning the house, the night suddenly and remarkably turned gravely sour as a result of JL again accusing her of treachery and infidelity. The suggestion of gentle lovemaking sandwiched between bouts of animosity and hostility does not ring true. Furthermore, according to the accused’s interviews, following the further arguments on the Sunday night KS initiated consensual sexual activity on the Monday prior to the trip to the shopping centre.

17. There were other aspects of the accused’s conversations with police that were curious.  The accused agreed that on the afternoon or early evening of 30 January 2017 he left the shopping centre sometime after KS said that she wanted to go to the toilet. He said that he was expecting her home when the police attended the unit at about 10pm that evening, apparently having made no enquiries as to whether she was safe or anything had happened to her.  The prosecution conceded[193] that there was no evidence that the accused saw the police and fled the shopping centre out of a consciousness of guilt.[194] However, Mr Martin argued, as I understood him, that the accused’s conduct was inconsistent with his claimed love and affection for KS but dovetails with the nature of his general relationship with KS, as described by her.  I accept that argument although I must say this is a minor aspect of the evidence.

    [193] T 193.

    [194] Cf R v Power (1996) 87 A Crim R 407.

18. Another matter relates to a statement the accused made shortly after he opened the front door to the police. As mentioned earlier the accused remarked: ‘What she told you about ex-husband’s raping her and shit, is that what you are talkin’ about?’  This was a curious question because the police had not previously suggested that they wanted to speak to the accused or anyone else in relation to a rape allegation.  The accused had merely been told that KS had attended the police station ‘to report something’.

19. No evidence was put before me as to whether KS had been previously married and, if she had, whether she or anyone else ever told the accused that her husband had raped her. Be that as it may, the accused’s remarks suggest a curious concern about KS making rape allegations when there appears to have been no sensible context for the accused to have thought that she might make such allegations against her previous husband at that time. However, once again it is fair to say that this is a relatively minor feature of the evidence. My primary reason for concluding that the accused’s account is inherently improbable lies in the matters discussed above at [155].

20. However, it must be remembered that mere rejection of the accused’s exculpatory statements does not equate to proof of guilt. The prosecution must prove his guilt beyond a reasonable doubt on the basis of evidence which is accepted.[195] I turn to that evidence.

    [195] See generally Douglass v The Queen [2012] HCA 34.

    Complainant: credibility assessment

21. The case against the accused is based substantially, though not entirely, on the evidence of KS.  In relation to each of the charged offences the accused cannot be convicted unless I am satisfied beyond reasonable doubt that KS was an honest witness who gave a reliable account in relation to the incident upon which the charge is based. It is true, as set out in my summary of the evidence, that KS has made prior inconsistent statements on various topics However, in the main they relate to peripheral matters. She has been consistent in relation to the allegations upon which the charges have been framed.

22. On KS’s own account, however, she is a former prostitute and drug addict. At the time of the offences she also had a serious problem with alcohol. On one interpretation of Mr Hall’s evidence she may also have been using amphetamines as late as January 2017. Those factors have caused me to warn myself that I must not convict the accused of any charge unless, after having carefully scrutinised KS’s evidence, I am convinced that she has given an honest and reliable account in respect of that charge.

23. KS was an unsophisticated and inarticulate witness who at times had difficulty relating events without rambling. At times she had trouble, not unnaturally, of recalling the detail and sequence of certain events. However, she impressed me as an honest witness whose account in relation to both the charged and uncharged acts was substantially true.

    Findings

    Uncharged acts

24. I am satisfied beyond reasonable doubt that KS gave a substantially truthful account of her relationship with the accused during their relationship. I accept the evidence she gave in relation to each of the uncharged acts.  Her account received support from the inculpatory statements made by the accused to the police regarding his jealousy and suspicions of infidelity and his use, and threatened use, of violence against KS.  Also, her account was bolstered by aspects of the evidence given by the prosecution witnesses Hall, Hodge and Livingstone. In particular, Mr Hall’s evidence supported her account in relation to the ‘Collins incident’ while the evidence given by Mr Hodge and Ms Livingstone supported KS’s account of the ‘front yard incident’.

    Count 1: Christmas Eve incident

25. I am satisfied beyond reasonable doubt that the accused assaulted KS in his bedroom at Bowden on 24 December 2015 by unlawfully and intentionally punching her in the head and body thereby causing her to suffer a bloodied and injured nose, as she testified. 

26. As earlier discussed, her account received compelling support from Mr Hall.  He confirmed that the accused was annoyed with KS for having gone out alone and that the accused argued with her immediately upon her return home. Furthermore, Mr Hall’s unchallenged evidence establishes that shortly after the argument KS left the accused’s bedroom with a bloodied nose. I was left in no doubt that KS gave a truthful account of this incident. I accept that she suffered a fractured or broken nose which she tried to re-align herself. Even if her nose was not broken, I do not regard a marked and bloodied nose as trifling. I am satisfied beyond reasonable doubt that prosecution has established the elements of the offence of assault causing harm and, accordingly, find the accused guilty of the offence.

    Count 2: Hall incident

27. I am satisfied beyond reasonable doubt, as KS alleged, that during an incident in 2016, at the Plympton Park unit, the accused punched KS in the face causing her to suffer bruising and swelling to her left eye and the left side of her face and splits in her skin. Her evidence was supported by Mr Hall’s post-incident observations of her injuries and the admissions the accused made to him.  On the evidence that I have accepted, it cannot be doubted that the punches were unlawfully and intentionally administered causing KS bodily harm. The elements of the charged offence have been made out. I find the accused guilty of assault causing harm.

    Counts 3-6: 29 January 2017

28. The prosecution case in relation to these counts is substantially founded on KS’s testimony. As mentioned, the marks exhibited by KS when photographed by the police are of no assistance in determining what happened inside the unit. However, the accused’s admissions that there was an argument about her alleged infidelity, which extended to the accused asking her to cut off his penis, serve to bolster her account of a violent sexual attack. In any event, while KS’s evidence of the incident was somewhat disjointed at times, I found her to be a convincing witness. She was substantially consistent in relation to her core allegations and her descriptions of those incidents were detailed and compelling. I am satisfied beyond reasonable doubt that she did not make them up.     

29. Mr Jolly made a lot of the fact that on the following day KS went with the accused to the shopping centre and spent time shopping and drinking port before she contacted the police. I do not regard her conduct as inconsistent with her allegations.  I accept that she lived in fear of the accused but was also dependent on him emotionally and had nowhere else to live. 

30. For many people, it might seem odd that a woman who alleges she was raped by her partner would remain in his company in such circumstances rather than contact the police as soon as a safe opportunity arose. 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.  I believe that KS had become inured to violence and mistreatment that caused her to react in a way that a person from a more normal domestic relationship would not.

31. I accept KS’s evidence that what tipped her over the edge is that, after they were joined by Jamie Voakes outside the shopping centre, the accused continued to taunt and demean her regarding her alleged infidelity despite his gross sexual misconduct the night before. She realised that the relationship was doomed to continue in the same direction. Mr Jolly, however, submitted that the accused’s behaviour in continually asserting that KS was running around with other men, is equally consistent with her making false allegations against him in retaliation.  I have taken that possibility into account bearing in mind that there is no onus on the defence to establish, or point to, a motive for a complainant to fabricate sexual allegations. I have also borne in mind that there may be an unknown reason for a complainant to fabricate her or his allegations.[196] However, I am satisfied upon a consideration of the whole of the evidence that KS gave a truthful account of having been sexually assaulted in the manner she described and that she contacted the police for that reason.

    [196] See Palmer v R (1998) 193 CLR 1; Hargraves & Stoten v R (2011) 245 CLR 257.

32. I make the following findings in relation to the incident on 29 January 2017:

    ·In relation to count 3, I am satisfied beyond reasonable doubt that the accused intentionally and unlawfully punched KS in the pelvic area without lawful excuse and is, therefore, guilty of assault.

    ·In relation to count 4, I am satisfied beyond reasonable doubt that the accused inserted his penis into KS’s mouth after telling her that she had a choice of giving him a head job or getting bashed. Against the history of violence to which she had been subjected, KS had every reason to believe that she had no real choice but to submit. By force of s46(3) KS cannot be taken to have freely and voluntarily engaged in the act of fellatio. Having regard to the threats he had made the accused must have known that KS did not consent. Even if he did not know, which I do not accept, he must have been, at the very least, recklessly indifferent in that regard. I find the accused guilty of rape.

    ·In relation to count 5, I am satisfied beyond reasonable doubt that the accused compelled KS to engage in an act sexual manipulation (licking his anus) by hitting her about the head and threatening to chop off her head.  I am satisfied that KS took that threat seriously because of (i) the violence he had used against her on the night and in the past and (ii) his previous assertion that he had served a sentence of imprisonment for chopping off a man’s leg, regardless of whether the assertion was true or not.[197] I am further satisfied that the accused directed KS to lick his anus to satisfy his own sexual arousal or gratification.   The accused must have known that the complainant did not consent. Even if he did not know, which I do not accept he must have been, at the very least, recklessly indifferent in that regard. I find the accused guilty of compelled sexual manipulation.

    ·In relation to count 6, I am satisfied beyond reasonable doubt that the accused inserted his penis into KS’s mouth after menacingly telling her that she had better do a good job and against the background of the violence he had already used against her. I am satisfied that he continued to hit her about the head while she performed the act of fellatio. By force of s46(3) KS cannot be taken to have freely and voluntarily engaged in the act of fellatio. Having regard to his violent and threatening conduct the accused must have known that KS did not consent. Even if he did not know, which I do not accept, he must have been, at the very least, recklessly indifferent in that regard. I find the accused guilty of rape.

    [197] I have not used KS’s statements as evidence of the truth of what the accused told her. 

    CONCLUSION

1. I return a verdict of guilty on each count.