R v L Os

[2021] SADC 125

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v L OS

Criminal Trial by Judge Alone

[2021] SADC 125

Reasons for the Verdict of her Honour Judge Deuter 

25 November 2021

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT - CONSENT - GENERALLY

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY

The accused is charged with one count of Causing Harm with Intent to Cause Harm; one count of Rape; and one count of Attempted Rape.

The complainant and the accused had known each other for several years whilst living in Darwin, when the accused was in a relationship with the complainant's daughter.  The accused lived with the complainant and her daughters in a home where all residents had a significant methylamphetamine habit, using the drug on at least a daily basis.

The complainant moved to Adelaide and the accused came to stay with her.  The complainant's daughter was to come to Adelaide soon after.  During the evening of the day the accused arrived in Adelaide, there was a sexual encounter between the accused and the complainant, whereby it was alleged that he  placed her head in a head-lock causing her to black out, and then attempted sexual intercourse, before having sexual intercourse with her.

There was no dispute that the parties engaged in sexual activity, and that the accused had sexual intercourse with the complainant.  The issues are whether the accused placed the complainant in a head-lock causing her harm; unsuccessfully attempted sexual intercourse with the complainant; and whether the sexual intercourse that took place was consensual.  The accused pleaded not guilty and gave evidence on oath denying all of the offending. 

The case is one of 'oath against oath', to determine whether the prosecution has proved that all of the alleged acts occurred, and that the accused knew or was recklessly indifferent as to the lack of consent by the complainant to sexual intercourse occurring.  The Prosecution case based upon the acceptance of the truth and reliability of the evidence of the complainant.

Consideration of the principles in s 34L(I)(b) of the Evidence Act 1929 (SA) regarding the accused's counsel being able to question the complainant as to her previous sexual activities.

Held:  The offences have not been proved beyond reasonable doubt.

Verdict:

Count 1 - Not Guilty

Count 2 - Not Guilty

Count 3 - Not Guilty

Criminal Law Consolidation Act 1935 (SA) ss 24(1), 46(2), 46(3)(a)(i), 47, 48(1), 270A; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) ss 13A, 34L(1)(b), 34L(2), 34M, 34M(4), 34M(6), referred to.
He Kow Teh (1985) 157 CLRA 523; R v Brown (1975) 10 SASR 139; R v Nieterink (1999) 76 SASR 56; Douglass v The Queen (2021) 86 ALJR 1086; Driscoll v The Queen (1977) 137 CLR 517; Kilby v The Queen (1973) 129 CLR 460; Jones v R (1997) 143 ALR 52; R v S, DD (2010) 10 SASR 46; R v Usher (2014) 119 SASR 22; R v Koonyman (1979) 22 SASR 376; R v Baltensperger (2004) 90 SASR 129, applied.

R v L OS
[2021] SADC 125

Criminal Trial by Judge Alone

Introduction

1. The accused is charged with three offences arising out of a sexual encounter that took place at the home of the complainant (WF) in the early hours of 4 May 2019 (the encounter).  He is charged with:

   1.Causing Harm with Intent to Cause Harm contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA);

   2.Rape contrary to s 48(1) of the Criminal Law Consolidation Act 1935 (SA); and

   3.Attempted Rape contrary to s 48(1) and s 270A of the Criminal Law Consolidation Act 1935 (SA).

2. It is alleged that the accused had vaginal sexual intercourse with the mother of his then partner (AL) without her consent.  The accused admits that an act of penile/vaginal sexual intercourse occurred but maintains that such intercourse was consensual.

3. As part of the encounter, it is alleged that the accused attempted to insert his penis into WF’s anus without her consent, and also caused harm to her by placing his arm around her neck in head-lock type hold (head-lock).  He denies that those acts took place.

4. The Information sets out in relation to both the Rape and the Attempted Rape charges that the accused did, or attempted to, engage in sexual intercourse with WF without her consent to engage in sexual intercourse, knowing or being recklessly indifferent to the fact that she was not so consenting.

   Overview

5. The accused first met WF in late 2015 as a result of his friendship, and later relationship, with her daughter AL.  He was then 18 years old.[1]  Soon after, the accused moved into a house in Darwin (the Lee Point Road property) where AL, WF, and her other daughter (JF) lived.  Other persons also lived at the house from time to time.  All persons living at the Lee Point Road property, including the accused, WF and WF’s two daughters were addicted to, and daily users of, the drug crystal methylamphetamine.[2] 

   [1]     T448.12-34.

   [2]     T131.36-T132.15.

6. In late 2016 or 2017 WF moved to Adelaide.[3]  In May 2019 she was living in a one-bedroom unit at Plympton (the Plympton unit).  The accused and AL continued their relationship in Darwin and later in Queensland.  This was a turbulent relationship contributed to by heavy methylamphetamine use.

   [3]     T50.4-10.

7. In early to mid-2019, when the accused was then 22 years of age, he and AL decided that they would move to Adelaide for a fresh start.  They would initially live with WF so that they could care for her.  WF who was then 54 years of age, had been unwell.  It was agreed that the accused would travel to Adelaide first and that AL would arrive sometime later.  The accused arrived in Adelaide on the afternoon of 3 May 2019 and was driven from the airport to the Plympton unit by WF.  It is alleged that in the early hours of 4 May 2019 there was a non-consensual sexual encounter between the accused and WF.  It is alleged that the accused applied a head-lock to WF by wrapping his forearm around her neck causing her harm (Count 1).  While he had his arm around her neck, it is alleged that the accused unsuccessfully attempted to insert his penis into WF’s anus, without her consent (Count 3).  When the accused was unsuccessful in his attempt at anal sex it is alleged that he then raped WF by engaging in penile/vaginal intercourse. (Count 2).

8. WF gave evidence at trial and the Prosecution relies upon her evidence to prove its case beyond reasonable doubt.  The accused denies that he applied a head-lock to WF and denies the factual basis for Count 1.  The accused also denies that he ever attempted anal sexual intercourse with WF.  In relation to the charge of Rape the accused denies that there was any lack of consent from WF.  The accused’s case is that both he and WF consumed a large amount of methylamphetamine after he arrived in Adelaide, and that they then engaged in sexual intercourse, that was completely consensual.  The case is essentially ‘oath against oath’.

9. The accused pleaded not guilty to all charges. A trial began before a jury. As a result of delays, potential jury issues, and issues with the evidence of AL and JF the accused made an application on day six of the trial that the jury be discharged. That application was granted, and the jury was discharged. The accused then made an out-of-time application for the trial to continue by Judge Alone, pursuant to s 7 of the Juries Act 1927 (SA). That application was not opposed by the Prosecution, and I granted the application.

10. The re-trial immediately commenced before me without a jury.  The evidence in the jury trial was tendered by consent being, the evidence of Brevet Sergeant Merritt, the first part of the evidence in chief of WF, including the recording of that evidence, and the tendered exhibits.

11. The opening remarks of the Prosecution were also tendered by consent into the trial before me, and it was agreed that as I had heard the first part of the evidence of WF, and had the recording to review, I could take account of her demeanour in giving that evidence.  In relation to WF’s evidence, it continued before me in the re-trial, including her cross-examination. 

    Elements of the offences

    1. Causing Harm with Intent to Cause Harm

12. The offence of Causing Harm with Intent to Cause Harm is comprised of six elements.  Each must be proved beyond reasonable doubt by the Prosecution.  The six elements are that:

    i)the accused performed an act involving WF;

    ii)the accused’s act must have been voluntary and deliberate;

    iii)WF must have suffered harm.  This can be physical or mental harm, and either temporary or permanent;

    iv)the accused’s voluntary and deliberate act caused the harm suffered by WF;

    v)the accused intended to cause the harm to WF;

    vi)the accused’s act upon WF must been unlawful.

13. The act alleged to find the first element is the act of the accused placing WF in a head-lock by wrapping his forearm around her neck and throat.  It is alleged that the accused deliberately applied the head-lock to WF to restrain her while he attempted anal intercourse. 

14. WF’s evidence was that as a result of the pressure placed upon her neck and throat by the head-lock she suffered pain in her neck, could not breathe, and eventually passed out.  This is the physical harm which it is alleged forms the third element of the offence.  The Prosecution case is that the accused voluntarily applied the head-lock to WF thereby causing her harm; that he intended to cause her harm so that he could restrain her for the purposes of sexual intercourse; and that the action of applying a head-lock to WF was unlawful.

15. The accused denies that he applied a head-lock to WF, or that he did any act that caused her harm.

    2. Rape

16. The offence of Rape is comprised of three elements that must be proved beyond reasonable doubt by the Prosecution.

17. The first element is that the accused had sexual intercourse with WF.  It is not disputed by the accused that he and WF engaged in penile/vaginal sexual intercourse on WF’s bed at the Plympton unit on 4 May 2019. 

18. The second element is that the accused had sexual intercourse with WF without her consent.  A person gives consent if they agree freely and voluntarily to engage in the sexual activity with the other person.[4]  Importantly in this case, where there is an allegation of a head-lock being applied, if a person agrees to sexual activity because of the application of force, or an express or implied threat of force, they cannot be taken to have freely and voluntarily agreed to the sexual activity.  There is no consent.[5]

    [4] Criminal Law Consolidation Act 1935 (SA) s 46(2).

    [5] Ibid s 46(3)(a)(i).

19. This second element is in dispute.  WF says she did not consent to sexual intercourse with the accused, but rather was forced into such sexual intercourse by the physical harm suffered as a result of the head-lock, and the physical threats of the accused.  She was terrified that the accused was going to hurt or even kill her.  The accused denies this and says that WF willingly participated in the sexual intercourse.[6]

    [6] T476.41-T477.34; T509.17-T510.10.

20. The third element is that the accused either knew that WF was not consenting or was recklessly indifferent as to whether she was consenting.  An accused is recklessly indifferent to the fact that another person is not consenting to sexual intercourse if they:

    a)are aware of the possibility that the other person might not be consenting to the sexual intercourse, or has withdrawn their consent, but decides to proceed regardless of that possibility; or

    b)are aware of the possibility that the other person might not be consenting to the sexual intercourse, or has withdrawn their consent, but fails to take reasonable steps to ascertain whether the other person does, in fact, consent, or has in fact withdrawn consent to the sexual intercourse, before deciding to proceed; or

    c)does not give any thought as to whether or not the other person is consenting to sexual intercourse or has withdrawn consent before deciding to proceed.[7]

    [7] Criminal Law Consolidation Act1935 (SA) s 47.

21. The accused maintains that not only did he believe, but there was no doubt, that WF was a consenting and willing participant in the act of sexual intercourse.  It is the Prosecution case that the accused knew or should have known that WF was not consenting by her clear and unambiguous words and actions at the time of the act of sexual intercourse.

22. The issues in contention are whether the prosecution has established beyond a reasonable doubt that:

    (i)WF did not consent, or had withdrawn consent, to sexual intercourse; and

    (ii)the accused knew or was recklessly indifferent to the fact that WF did not consent or had withdrawn consent.

23. If it is reasonably possible that the accused had an honest but mistaken belief that WF consented, the Prosecution will have failed to prove that he possessed the requisite mental element of the crime of Rape.[8]

    [8] He Kaw Teh (1985) 157 CLR 523; R v Brown (1975) 10 SASR 139.

    3. Attempted Rape

24. In relation to Attempted Rape the mental elements are the same as for the offence of rape.  The Prosecution must prove beyond reasonable doubt that:

    i)the accused intended to have anal sexual intercourse with WF without her consent; and

    ii)the accused knew or was recklessly indifferent to WF's lack of consent.

25. In addition to the mental elements of Rape, to prove the accused guilty of attempted rape, the Prosecution must also prove beyond reasonable doubt that the accused had engaged in conduct that was sufficiently proximate or sufficiently close to commit the offence of Rape. 

26. The offence of Attempted Rape arises from WF’s allegations that the accused, before raping her vaginally, attempted to insert his penis into her anus, but was unsuccessful in doing so as a result of his penis remaining flaccid.  Her evidence was that the accused attempted on several occasions to insert his penis and his fingers into her anus. 

27. The accused denies that he attempted anal intercourse with WF at any time during the encounter on 4 May 2019. 

    Trial matters

    (1) Complainant’s Evidence

28. Before the trial commenced an application was granted, pursuant to s 13A of the Evidence Act 1929 (SA), for special arrangements for the taking of WF’s evidence. Those arrangements were for WF to give her evidence via CCTV from a witness suite; that her evidence be recorded; and that she have a court companion with her. At trial WF also gave her evidence with the assistance of a Thai language interpreter. I warn myself that I must not draw any adverse inference against the accused because of these arrangements for WF’s evidence, nor should I allow the fact that they were in place influence the weight that I give to her evidence.

    (2) s 34L of the Evidence Act

29. During the trial before the jury, Defence Counsel made an application pursuant to s 34L(1)(b) of the Evidence Act 1929 (SA) to question WF on previous sexual activities with the accused that had taken place before the alleged offending; and in relation to assertions made that she had previously worked, and was continuing to work, as a sex worker. In considering this application I was advised by Defence Counsel that as a result of the accused having lived in WF’s home and with other members of her family in Darwin, and as a result of his close relationship with WF’s daughter AL, he had personal knowledge of her work as a sex worker as a way to finance her drug habit.

30. The accused in making this application pointed to the Prosecution’s clear case that there was no consent to the sexual acts carried out by the accused, including the penile/vaginal sexual intercourse.  The Prosecutor in opening her case, described a violent struggle between the accused and WF, that involved the accused wrapping his arm around WF’s neck and cutting off her breathing as he attempted sex with her, and then throwing her onto the bed so he could force his penis into her vagina. 

31. WF was conveyed by ambulance to the Royal Adelaide Hospital several hours after the sexual intercourse with the accused.  She was examined by a Doctor Lyndall Young.  In her opening to the jury, the Prosecutor told them that Dr Young had performed a genital examination.  She went on to say:

    She [Dr Young] noted abrasions and a bruise around the complainant’s vaginal opening and also an abrasion around her anus; injuries which on the prosecution case, were consistent with forceful sex.

32. The accused brought his s 34L(1)(b) application upon the basis that:

    (a)he had personal knowledge that WF had worked as a sex worker whilst living in Darwin;

    (b)he and WF had a previous sexual encounter whilst both were living in Darwin;

    (c)the circumstances of the previous sexual encounter were not dissimilar to the circumstances of the sexual encounter before the court, and as set out in WF’s statements to police;

    (d)the previous sexual encounter between the accused and WF was very much connected with WF’s previous sex work in Darwin, in that it occurred at a location where the sex work was being undertaken;

    (e)WF was involved in sex work whilst living in Adelaide and at the time of the offending before the court.

33. It was submitted that in all the circumstances permission should be granted by the Court to allow the accused’s counsel to ask questions of WF as to her sexual activities before, and at the time of, the alleged sexual offending, and to provide an alternative explanation for her injuries.

34. It was argued that such questioning was particularly important in circumstances where the Prosecution relied upon the findings of Dr Young as to WF’s vaginal and anal injuries as important facts in issue, and to sheet home the blame for the alleged forcible sexual intercourse to the accused.  It was submitted that it was likely that the Prosecution would rely upon that evidence to argue that there was no consent to the sexual intercourse with the accused.  This put the cause of the injuries to WF very much in issue.

35. This issue was further compounded by a DNA Report from Forensic Science SA dated 8 November 2019[9] that indicated that a swab taken from WF’s endocervical region found a mixed DNA profile of three contributors.  These contributors included the accused and WF, but also an unknown third person.

    [9]     Later to become Exhibit P8.

36. The Prosecution opposed the Application, arguing that the issues raised by the accused had never previously been raised, and were highly prejudicial. The Prosecutor argued that there was no proper basis upon which the court could be satisfied of the matters required by s 34L(2), and that it would therefore be inappropriate for questions to be asked about sexual promiscuity. It was submitted that there was no evidence at all that WF had previously had a sexual relationship with any other person around the time of the encounter with the accused on 4 May 2019.

37. The Prosecution submitted that Police Investigations had included a search of WF’s phone in January 2021.  No messages consistent with WF being a sex worker, or being in a relationship at the relevant time, had been found.  It was argued that there was no evidence of any previous sexual encounter between WF and the accused, and if there had been any such encounter, no detail as to whether it had involved consensual sexual intercourse or not.  In the circumstances, to put to WF that she had engaged in sexual intercourse with the accused, at some former time, given their extreme age difference, would be inappropriate and very prejudicial if there was not a proper basis upon which to do so.  She also raised the relevance of such questioning.

1. In all of the unusual circumstances of this matter I was satisfied that the line of questioning both in relation to previous sexual encounters between the accused and WF, and in relation to her sex work was of substantial probative value in explaining the context of the relationship between the accused and WF and was in the interests of justice.[10]

   [10]  Evidence Act 1929 (SA) s 34L(2).

2. I was also satisfied that the line of questioning, limited as it was, would not cause unnecessary distress, humiliation, or embarrassment to WF.  The accused at the time of the previous alleged sexual encounter was only 10 years younger than WF’s then boyfriend.  I therefore allowed the cross-examination on the basis that this was not to include questions as to WF’s sexual activities or reputation generally. 

3. As the trial did not continue before a jury, the prejudicial matters raised by the Prosecution are matters I take into account when considering the evidence on this topic.  I will use the evidence only if I find it to be true, and then only to assess and understand the direct evidence upon which the charges are based.  The evidence is to be used for no other purpose.[11]  I am not to reason that because the accused and WF had engaged in sexual intercourse previously, or that WF had engaged in sex work, that the encounter with the accused on 4 May 2019 was more likely than not consensual.  Nor am I to reason that WF is a bad person and someone whose evidence should not be accepted as being true.

   [11]   R v Nieterink (1999) 76 SASR 56.

   Legal Directions

4. The Prosecution bears the onus of proving the guilt of the accused at all times.  The accused does not have to prove that he did not commit the offences of which he is charged. 

5. The standard of proof is the standard in all criminal matters being proof beyond reasonable doubt.  I cannot find the accused guilty of any of the offences of which he is charged, unless the evidence I accept satisfies me beyond reasonable doubt of his guilt in relation to the charge under consideration.  In these reasons, if I use the words proved, established, or satisfied I will always mean, in each case, to an extent which excludes a reasonable doubt. 

6. The accused is presumed by law to be innocent of the charges unless and until, the evidence that I accept satisfies me that each element of the charge under consideration, has been proved beyond reasonable doubt.  If, however, the evidence fails to satisfy me beyond reasonable doubt of any of the elements that must be proved for each offence, then the accused remains innocent in relation to that offence and I must return a verdict of not guilty. 

7. I must assess each witness as to their truthfulness and their reliability and I must determine whether I can rely upon the evidence given by that witness.  I can reject or accept all or part of a witnesses’ evidence.

8. The accused gave evidence in this trial.  He was not obliged to give evidence but chose to do so.  His evidence must be considered in the same way as all other evidence and assessed with all other evidence.  He cannot be found guilty if I find his evidence is true or if there is a reasonable possibility that it is true.[12]

   [12]   Douglass v The Queen (2021) 86 ALJR 1086.

9. I remind myself by giving evidence and presenting a case the accused does not assume any burden of proof.  That burden always remains with the Prosecution.  Even if I reject any explanation that was given by the accused in his evidence that is not an end to the matter.  I must still be satisfied by the evidence as a whole that each of the elements of the charge I am considering has been proven beyond reasonable doubt by the Prosecution, notwithstanding the case presented by the Defence, before I can return a verdict of guilty in relation to the charge.[13] 

   [13] Ibid.

10. A person, Darren Binsaris (DB), who was described as JF’s former boyfriend, was mentioned in evidence, as being with the accused the night of the alleged offending and also the next morning.  WF’s evidence was that a first complaint of Rape was made to DB.  I will return to that evidence.  DB was not called to give evidence by either the Prosecution or the accused.  I have not speculated as to what he may have said if he had been called.  I draw no adverse inference against either party for not calling DB to give evidence.  I am left to decide the verdict only on the evidence before the court. 

11. I must bring an open and unprejudiced mind to my deliberations in this case.  I cannot make my decision influenced by sympathy, prejudice or fear and must not be influenced by public opinion. 

    Multiple Charges

12. Each of the three charges concerns separate offending and I must treat each separately and consider only the evidence relative to that charge.  If I were to find the accused guilty of one of the charges, on the evidence relevant to that charge alone, I must not use that evidence nor the fact of that finding, to prove either of the other charges.  However, such evidence may be relevant to the background, or circumstances, surrounding the events said by the Prosecution to give rise to each of the offences charged.

13. The charges do not stand or fall together.  If I were to find that the accused committed one of the offences charged, it does not follow that he should be found guilty of either of the other offences.  The onus remains on the prosecution to prove the elements of the other offences beyond reasonable doubt.  However, if I were not to be satisfied beyond reasonable doubt that WF was truthful and reliable with respect to one or more of the charges, I must then consider whether I can be satisfied as to the guilt of the accused on any remaining charge.  That is, the lack of satisfaction with WF’s credibility and reliability will be a relevant factor in my consideration of the other charges to the extent that her evidence is critical to those charges.

    The Evidence

14. The Prosecutor, Dr Lake, called nine witnesses namely: WF; her two daughters AL and JF; three investigative police officers; Doctor Lyndall Young, who examined WF in hospital; and two expert scientific witnesses to give evidence regarding DNA, and the results of a urine sample provided by WF.

15. Defence Counsel, Mr English, called the accused and Professor Jason White, an expert in Pharmacology. 

16. In relation to the expert evidence that was called it is for me to determine the significance and weight to be given to that evidence.  I remind myself that I must not disregard unchallenged evidence without reason, and that I should take into account the qualifications, and the impartiality of the expert witness and the extent to which their evidence accords with other evidence I accept.

17. The oral evidence was supplemented by the parties’ tendering of documentary exhibits including photographs of the Plympton unit, and items of clothing and jewellery.  There were also two agreed facts, namely:

    1.that WF was brought by ambulance to the Royal Adelaide Hospital Emergency Department on Saturday, 4 May 2019 at 11.14am and attended upon by Dr Antonio Rodriguis;

    2.as part of the account provided to Dr Rodriguis as to the alleged assault and her injuries, WF indicated that she also had pain over her right cheekbone where she said the accused had punched her.

    Background

18. At the time of the alleged offending, the accused was 22 years of age and had been living in Queensland.  Since 2015 he had been in a volatile relationship with WF’s daughter AL.  That relationship was negatively impacted by both the accused and AL’s serious, and longstanding addiction to methylamphetamine.

19. The accused’s relationship with AL commenced in Darwin when they lived at the Lee Point Road property with WF, AL’s sister JF and others, including JF’s boyfriend DB, and WF’s 28-year-old boyfriend Russell Williams.  The accused, DB and JF were all between 18 and 20 years of age, and AL was 21-22 years old.[14]  The house at Lee Point Road was regarded as a party house, where the residents all used methylamphetamine daily, often multiple times per day and where noise continued into the night.  WF agreed with that description of life at the Lee Point Road property.[15]  Ultimately the residents were evicted, and WF and her boyfriend initially moved in to live with his mother.[16]  The drug use continued.  After a few months there was a further move until sometime in 2016 when WF was living in hotel rooms in Darwin, at times with her daughter JF.  I pause to note that none of the witnesses when giving evidence could be precise about the dates, or even at times the years, when events happened in their life.  Only approximate dates were ever provided.

    [14] T140.12-22 (however later in WF’s evidence she said that she did not know how old DB was: T325.27-28).

    [15] T132.9-37; T139.28-33.

    [16] T132.38-T133.6.

20. It is not in dispute that while WF and the accused lived in Darwin they both had a very serious methylamphetamine habit.  The accused used between three points and half a ball (1.5g) of the drug each day by smoking and injecting it.[17]  WF had been using methylamphetamine for more than 10 years, generally by smoking it.[18]  The amount of methylamphetamine consumed each day by WF was not clarified except that she used the drug ‘day and night’ and as at 2016 she had a serious addiction to methylamphetamine.[19]  She agreed that she was hopelessly addicted.[20] At this time she said she was spending more than $200.00 - $300.00 per fortnight on methylamphetamine, from her sickness benefits of between $400.00 and $600.00.[21]

    [17] T449.31-T450.8.

    [18] T137.23-26.

    [19] T134.16-19; T136.11-13; T136.28-31.

    [20] T136.11-13.

    [21] T134.20-36; T136.8-33.

21. At some time after the eviction from the Lee Point Road property, the relationship between AL and WF broke down.  WF described this as a mother/daughter falling out, caused by arguments over AL’s drug use.  She elaborated by explaining that she used to sell drugs, and that AL over time bought all the drugs she had, and never paid for them:[22] 

    Q.So you argued about drugs with AL, what was it about drugs that you and AL argued about?

    A.Before I used to sell drugs and AL was causing me I couldn’t sell drugs.  Before I selling drugs AL come and buy drugs from me, but never pay for it and she bought all the drugs that I had, so I don’t have any more, so we argue, we split up.

    [22] T143.29-35.

22. WF explained that AL had stolen over an ounce of methylamphetamine, worth $15,000.00.[23]  WF also said that she and JF were scared of AL, because AL sold drugs.[24] 

    [23] T144.6-19; T433.19-26.

    [24] T143.15-19.

23. AL in her evidence denied not paying her mother for drugs, and said she never had $15,000.00 worth of drugs, or not paid monies back. [25]  JF in her evidence denied that WF was scared of AL and described how WF and AL got on fine.[26]

    [25] T408.19-38.

    [26] T391.5-T392.9.

24. AL did not see WF in Darwin again after WF left her boyfriend’s mother’s home.  Their relationship had completely broken down.  AL blamed the accused and drug use for this.  She said the accused controlled her.  AL had therefore not seen her mother for several years before the alleged offending and rarely spoke to her.[27]

    [27] T408.11-22.

25. The accused’s evidence was that after everyone left the Lee Point Road property, he remained in contact with WF, primarily to pick up drugs from her, or to take drugs to her.  This continued after WF moved to live in hotels.  He used drugs with her on every occasion that he met up with her.[28]  He also at times acted as a driver for her work as a sex worker.  He said that WF had worked as a sex worker from the time she lived at the Lee Point Road property, and this continued whilst she was living in Darwin hotels.[29]

    [28] T455.4-T456.2.

    [29] T456.11-27.

26. On one of the occasions in 2016, when the accused visited WF at a hotel in Darwin, he says that having smoked some methylamphetamine together, they engaged in sexual intercourse.[30]  They both realised it was wrong and he did not tell AL about the encounter.  However, the accused did tell DB, and eventually both AL and JF found out.  The accused’s case is that this is what led to AL becoming very angry with her mother and contributed to them falling out.  AL lost trust in her mother, who the accused said, in the past, had liked to flirt with him and touch his body in front of others.[31]

    [30] T456.3-11; T456.32-T457.18.

    [31] T457.26-36.

27. This earlier sexual encounter with the accused was vehemently denied by WF.  She also denied ever working as a sex worker, giving evidence that she only paid for her drugs from her Centrelink payments.  AL also denied ever being told of a previous sexual encounter between the accused and WF, and that being the reason for her falling out with her mother.  I will address the conflicting evidence regarding the relationship of AL and WF when considering the evidence of all witnesses.

28. After the accused and AL had moved to Queensland, they had ongoing issues and AL was removed back to Darwin where her two children live.  They then decided that they needed a fresh start and to make an attempt to break free from drugs.  They spoke to WF about coming to Adelaide and living with her until they got on their feet.  WF’s evidence was that they were coming down to look after her, as she had been unwell.

29. There is conflicting evidence as to what, if any, arrangements were made regarding AL’s and the accused’s travel to Adelaide.  WF’s evidence was that AL and the accused rang her on Wednesday 2 May 2019 to tell her that they would be arriving the next day.  AL in her evidence said that there were discussions with WF around one month before May 2019.  The plan was always for the accused to go to Adelaide first, as he had outstayed his welcome in Queensland, and she would come later after she had sorted out her life in Darwin.[32]  I will consider the evidence on this topic later in these reasons.

    [32] T402.3-27.

30. There is also a conflict between the evidence of AL and WF regarding WF’s ongoing drug use as of May 2019.  AL’s evidence was that her move to Adelaide was to enable her to remove herself from the drug scene in Darwin, as her mother was no longer using drugs.  WF had told her that.[33]  WF’s evidence was that she was continuing to use drugs when she could afford methylamphetamine.  This was once per day maximum, although she did not use drugs on the morning of 3 May 2019 as she had a doctor’s appointment and did not want the doctor to detect her drug use.[34]  Her evidence was that she smoked a very small amount of methylamphetamine each morning, less than a point, before walking her dog.  That WF was continuing to use methylamphetamine was confirmed by the Forensic Scientist, Kerryn Mason, in her evidence.  A sample of WF’s urine, taken at 4.05pm on 4 May 2019 detected methylamphetamine.[35]  Ms Mason was not however able to assess when that methylamphetamine was ingested.

    [33] T420.12-29.

    [34] T65.15-22; T147.27-33.

    [35] T246.6-T247.17.

31. WF, in cross-examination, was asked to confirm what she had told AL about her methylamphetamine use in 2019.  She first agreed that she had told AL that she had completely given up the drug.  When put to her that this was untrue, WF said that she could not stop suddenly and had to cut down gradually.  When that conflict was pointed out to WF she said that she could not remember her first answer.  Pushed further, WF’s response was that she didn’t want to smoke methylamphetamine again, and that she had told AL that she would quit.  She had told AL that she was still using methylamphetamine but had a future intention to give it up.[36]

    [36] T433.34-T434.34.

32. The accused in his evidence said that WF had never given up using methylamphetamine.  In conversations before he travelled to Adelaide, WF told him how cheap drugs were in Adelaide.[37]  They openly discussed the use of drugs.  WF agreed that this was the case.[38]

    [37] T66.6-10; T134.37-T135.9; T498.8-T499.21.

    [38] T134.37-T135.6.

33. The accused’s evidence was consistent with AL’s regarding their plans to travel to Adelaide.  He said that there had been discussions with WF regarding a move to Adelaide, as AL and WF were mending their relationship.[39]  However, the accused’s plane ticket was not booked until two days before his arrival.  AL was not coming until a short time later.  She still needed to get the money together for her ticket.  There was no set date for AL’s arrival in Adelaide.[40]

    [39] T350.

    [40] T460.19-32.

    The accused’s arrival in Adelaide – 3 May 2019

34. The accused arrived at Adelaide Airport on Friday 3 May 2019, at about 3.00pm, and was collected by WF who brought him back to the Plympton unit.  The evidence as to how that occurred, and what took place on the drive home between WF and the accused, is very different and cannot be reconciled.

35. WF says they drove straight back home, and that the accused was acting strangely, putting his arm around her and touching her hair while in the car.  WF’s evidence was that when they got home, the accused again put his arm around her shoulders and touched her hair, and she told him to go away.  She told him to stop and went about her business and eventually set up a mattress for the accused in the lounge in front of the TV. 

36. WF says she was concerned about having the accused in the house alone with her and asked him repeatedly when AL was coming.  He told her: ‘…in an hour…’.[41]  She also gave evidence that she spoke to AL on 3 May, asking when she would arrive, and AL told her that she would be arriving ‘within an hour’.[42]  This evidence is inconsistent with the evidence of the accused and AL.

    [41] T60.36-T61.1; T62.30-33; T353.21-24.

    [42] T61.2-T61.5; T308.25-38.

37. In cross-examination AL agreed that she spoke to WF by phone on the day that the accused arrived in Adelaide.  However, she clearly denied, on three separate occasions, that she ever told her mother that she would be arriving in Adelaide in an hour.[43]  She also spoke to the accused and had told him she was not yet ready to move to Adelaide.[44]

    [43] T414.14-29.

    [44] T415.4-18.

38. The accused’s evidence regarding what occurred over the afternoon of 3 May 2019 was that when WF arrived at the airport to collect him she appeared affected by methylamphetamine, and she immediately asked if he had brought any drugs with him.  She appeared excited when he said he had 3.5g of methylamphetamine.  WF told the accused that she had a new ice pipe to use.  She wanted to see what he had brought.  WF was in a hurry to get home and drove dangerously before getting lost.  While still in the car, the accused asked WF what she was doing and she told him ‘still working’, which he took to mean sex work.

39. When they arrived home WF offered to do any washing needed by the accused.  While he unpacked his suitcases WF produced two glass pipes.  The accused measured out some of the drug he had brought with him, and they smoked together on the couch.  WF became very talkative.

40. WF denied ever smoking methylamphetamine with the accused on 3 May 2019 and denied any discussion with him about drugs.  She said she did not see the accused use any drugs.[45]  That evidence led to cross-examination regarding what WF had told police when reporting the alleged offending, and as set out in two sworn statements that she gave to police, regarding the accused bringing drugs to Adelaide.[46]

    [45] T66.3-12; T154.6-19.

    [46] T154.20-25.

41. After stating that she did not remember what she first told police, WF was taken to her police statement of 9 May 2019 regarding the accused’s actions on 3 May 2019 where she had said:

    … I saw him go to mattress.  One of the times he came back he showed me a small plastic bag containing a white rock.  I went to bed.  I knew it was drugs.[47]

    [47] T155.2-26.

42. When asked if she agreed that this was what she told the police on 9 May 2019 WF stated on several occasions that she could not remember what she had said, or that she had even made a statement to police.[48]  When further challenged, WF confirmed that she did recall making the statements saying:

    … yes, it’s the truth, correct but I can’t remember.[49]

    [48] T155.27-T156.18.

    [49] T156.23-30.

1. When counsel attempted to clarify that answer WF said:[50]

   Q.    So you think that that, at the time you made your statement, that you were quite clear with the police that you must have seen Leroy with a small plastic bag containing white rock that you thought were drugs?

   A.    No

   Q.    When you say ‘No’, what do you mean by that?

   A.    I can’t remember.

   Q.Is it true that about over a year later the police asked you about that statement concerning Leroy having a plastic bag containing white rock, that they spoke to you again about whether you’d actually seen that.

   A.    I can’t remember, it’s a long time ago.

   [50] T156.31-T157.4.

2. WF was then shown her signed police statement of 1 August 2020, and she confirmed it was her signature on it, and that the statement was true and accurate.[51]  Counsel took WF to a paragraph where she had said that the production by the accused of a white rock in a small plastic bag had never happened, and she was not sure why she had told the first police officer that.  Her evidence was:[52]

   [51] T156.38-T157.13.

   [52] T158.24-T159.27.

   Q.Let me put it in this way, in your statement of 9 May 2019, you agree that you told Detective Heard, don't you, that, on the night of this incident, that, at one point, Leroy produced a small plastic bag containing a white rock. You agree that that's what you told the police in May of 2019 in a sworn affidavit, don't you.

   A.Yes, but then I can't remember.

   Q.That's fine, but Ms F…. agrees that that is what she told Detective Heard on 9 May.

   A.Yes.

   Q.And she swore on an affidavit that it was true.

   A.No.

   Q.Did Detective Heard again speak to you about that issue of what you'd said about Leroy having a plastic bag containing a white rock later on 1 August 2020.

   A.I can't remember.

   Q.Well, can you look at - would you mind translating again, madam interpreter, para.15, the first two sentences.

   A.He went out, he came back, he went out, he came back, he went out, he came back, he didn't go long enough to go and buy some drugs.

   Q.Thank you. But what I'm getting at is you told Detective Heard on 1 August 2020, you swore an affidavit to the effect that this incident of Leroy having a plastic bag containing a white rock just didn't happen and you didn't know why you said that to Detective Heard in your first statement. Do you agree that that is what you told Detective Heard, that is what is contained in your affidavit of 1 August 2020.

   A.I can't remember at all.

   Q.You know exactly what it is, Ms F….., don't you, what I'm talking about.

   A.Yes, I understand.

   Q.You've said two different things to the police about the issue of Leroy having drugs.

   A.I can't remember this, I can't remember at all.

   Q.But you remembered exactly what Detective Heard was talking about over a year later when you deposed to your affidavit on 1 August 2020.

   A.No, I can't remember. I went to the hospital, I can't remember.

3. The accused points to this evidence as demonstrating that WF cannot be accepted as a truthful and reliable witness.  WF refused to acknowledge police statements and fell back into giving an answer she often gave when pressed on a topic, namely, that she did not remember what she was being asked about.  It is also a part of the evidence where there is clear conflict between WF and the accused.  While WF was reluctant to confirm her ongoing drug use, the accused was open about his issues and did not try to hide them.  That he was still a significant user of methylamphetamine, and the drug had caused many issues for him in his life.

4. WF when asked about her level of drug use, although admitting smoking methylamphetamine on Thursday 3 May 2019, denied any drug use on Tuesday or Wednesday of that week.[53]  However in later cross-examination WF admitted that she had given a statement to police on 1 August 2020 where she had said:

   … I told him (the investigating officer) that, honestly, I smoked ice once every morning, on every day that week before I walk my dog in the morning.  I did no smoke anything on the morning of Friday 3 May 2019.[54]

   [53] T65.24; T147.34; T148.3; T363.32-35.

   [54] T364.19-26.

5. Although agreeing that the earlier statement had been made, WF refused to agree that she had smoked methylamphetamine each morning.  She attempted to avoid answering the questions put to her:[55]

   [55] T363.32-T364.12.

   Q.Your evidence was that you had only used methylamphetamine that week on the Thursday morning, is that correct.

   A.Yes.

   Q.So is your evidence that you did not use drugs on the Wednesday or the Tuesday.

   A.I can't remember.

   Q.Did you tell the police that you smoked ice every day that week apart from the Friday.

   A.I can't remember.

   Q.I suggest to you that that's what you did tell the police, that you told them you smoked ice every day that week apart from the Friday.

   A.I did smoke ice on Thursday before I took the dog for a walk and that's it.

   Q.Just to be clear about this, would you like to refresh your memory about what it is that you did say to the police about that topic.

   A.I can't remember, it's 2019.

6. Having given that evidence WF was shown her police statement of 1 August 2020 and the cross-examination continued.  WF continued to avoid answering questions put her:[56]

   [56] T364.25-T365.22.

   Q.Is that statement that you made in para.10 correct.

   A.Yes.

   Q.That's different to the evidence that you've given in court about your use of ice, isn't it.

   A.How can you ask that?

   Q.You said in cross-examination, didn't you, that you didn't use drugs on the Wednesday or Tuesday of that week because you didn't have the money. Remember saying that.

   A.Sorry can't remember.

   A.I can't remember.

   Q.Earlier in your evidence in cross-examination, were you asked these questions and did you give these answers - could you interpret that please, Madam Interpreter.

   A.Yes.

   Q.Page 147 from .34 'Q. But you had been using hadn't you in the days leading up to that appointment on the Friday. A. Yes, I did took drugs in the morning on Thursday morning to take before I took my dog for a walk. Q. Did you take drugs on Wednesday morning. A. No, no money, I didn't have money to buy it. Q. Did you take drugs on Tuesday. A. I don't think so, I didn't have any money'. Did you understand those questions and give those answers, Ms F…..?

   A.Yes, I understood.

   Q.That's completely different to what you told the police when you gave your statement on 1 August in para.10, isn't it.

   A.I can't remember because I can't read.

   Q.You just had it translated to you, Ms F….., you understand very well what I'm talking about, don't you.

   A.Yes.

   Q.You told the police, didn't you, on 1 August 2020, that you smoked ice once every morning on every day that week 'before I would walk my dog in the morning'.

   A.I can't remember.

7. The level of WF’s drug consumption, and that of the accused, is highly relevant in this matter as the accused’s evidence is that although all sexual activity was consensual, it was impacted by the level of methylamphetamine consumed by both he and WF earlier in the day.  There are reasons therefore for WF to distance herself from any drug use.  I find that WF was deliberately vague in answering questions about her drug use to minimise that drug use before the court.

8. In contrast to WF’s evidence, the accused was very open about his drug use.  He admitted that he often injected himself with methylamphetamine, and that it was not uncommon for him to use half a gram per day, and sometimes more.[57]  He agreed that this had led to downfall in his life, leading to things happening that he regretted.[58]  He gave detailed evidence as to how he had met WF, AL and JF when only 18 years old and moved into their home.  While at the Lee Point Road property drugs were used day and night, and for days on end, with WF and her family all selling drugs to people who came to the house.[59]

   [57] T488.10-16.

   [58] T487.32-T488.9.

   [59] T449.14-T451.2.

9. The accused admits to the highs and lows of drug use, describing how terrible he felt if he couldn’t get his next fix.  Drugs also made him act aggressively at times.[60]  The accused was open in his evidence regarding the drug culture in Darwin and involving WF’s family, and his continuing drug use while in Queensland.

   [60] T451.3-T452.28.

10. Although trying to distance herself from drug use at the time of the alleged offending, WF did admit that since living in Adelaide, she had been involved with a drug dealer named Kath or Kathleen. [61]  She would drive this dealer, Kath, around so that she could sell drugs.  I pause to note that given the events before the court occurred in May 2019, that WF had only been in Adelaide somewhere between 18 months and 2.5 years.  Her dealings with Kath could therefore not be described as they were by WF, as a ‘…long time ago…’ relevant to the alleged offending.[62]  WF gave evidence that Kath would give WF watches and other costume jewellery for driving her.  She could not remember Kath’s last name but gave evidence that Kath had visited the Plympton unit and would also supply WF with methylamphetamine in return for her driving her to other locations to sell drugs.[63]

    [61] T311.32-37; T312.27-33.

    [62] T311.23-26.

    [63] T311.23-T313.8; T317.5-16; T318.1-4.

11. In giving this evidence regarding her dealings with Kath, I found that WF again tried to minimise her involvement in the sale of drugs, and the amount of methylamphetamine she was using once she moved to live in Adelaide.  WF openly admitted to a constant drug-fuelled party atmosphere at the Lee Point Road property, and that these drugs caused difficulties thereafter while living in Darwin,[64] but she became more evasive about her drug-related activities once she moved to Adelaide.  Ongoing drug use and involvement in drug dealing was not freely admitted.  This was despite her evidence that she moved to Adelaide because she had nowhere to live in Darwin.[65]  She did not say it was to escape her drug problems or to stop using drugs.

    [64] T131.36-T133.3.

    [65] T143.10-13.

12. I take account of this evidence in determining WF’s creditability and reliability as a witness.  I also take into account WF’s inconsistent statements made to police regarding her drug use in the week before the encounter with the accused.  I do so only in assessing WF’s truthfulness and reliability as a witness.[66]

    [66] Driscoll v The Queen (1977) 137 CLR 517.

13. There are also inconsistencies in WF’s evidence regarding her hospital appointment on 3 May 2019.  She first gave evidence that she did not go straight to the airport to collect the accused when he called at 3.00pm to say he had arrived, as she had gone to the Royal Adelaide Hospital and found out her appointment was cancelled and had to drive back home.[67]  She later clarified that the appointment was in the morning, and she arrived back home before 12.00 noon.[68]

    [67] T55.1-17.

    [68] T147.10-31.

14. Later in cross-examination regarding WF’s interactions with the accused and DB on the morning of 4 May 2019, she agreed that she had said she had a medical appointment that morning (Saturday).  She had told her daughter that.[69]  The accused in his evidence said he also understood WF had a medical appointment on Saturday morning.[70]

    The Evidence of the Offending

    [69] T360.20-22.

    [70] T475.3-5; T479.1-9.

    The Complainant’s Evidence

15. The Plympton unit only contained one bedroom and it was where WF’s bed was situated.  The bathroom, containing a toilet and washing machine, was off of the bedroom, (i.e., it was necessary to go through the bedroom to reach the bathroom).  WF gave evidence that the accused was to sleep in the lounge room on a mattress that had been stored behind the TV area.[71]

    [71] Marked on Exhibit P1.

16. WF set up the mattress for the accused at around 7.00pm on 3 May 2019, just before she said she went to bed.[72]  She gave evidence, that after doing that, and before she went to bed, that the accused told her he hadn’t had sex for a month.  WF didn’t respond to the comment.  No context for the comment was given, and the accused denies making it.  His evidence was that such a comment was not true, as he had had sex with two women on the Gold Coast, over that time.[73]

    [72] T61.17-T62.26.

    [73] T501.19-21.

17. When WF went to bed she says she did not change her clothing, keeping on her black leggings and blue dress, with blue underwear and a black bra.  A lounge light was left on and her bedroom door left open.  Her dog went to bed with her.  The accused was left sitting on the mattress in the lounge room.  He was wearing tracksuit pants and no top.

18. After WF went to bed, the accused came into the bedroom and lay behind WF, hugging her and asking to lie with her.  WF told him to get out and gave him blankets as he was cold.[74]  WF then heard the accused on the phone, before he asked her to unlock the door so he could go outside.  The accused then went outside very briefly.  This occurred three times, with WF getting up each time to unlock and lock the front door.[75]

    [74] T60.15-T61.1.

    [75] T69.4-T70.9.

19. WF’s evidence was confusing and did not make logical sense regarding the accused’s movements on the evening of 3 May 2019.  Having said that the accused went out three times, and each time for only a minute, she then gave evidence that he come back after the third time before 4.00am.  In cross-examination she agreed that she had said that he had gone in and out in quick succession.[76]  This would suggest that he came back in well before 4.00am.

    [76] T335.5-13.

20. WF’s evidence was that she fell asleep and woke with the accused sitting on top of her.  She was lying on her left side and the accused was sitting across her right hip area, with his arm wrapped around her neck underneath the chin.  WF told him to get off.  He responded by saying ‘…shut up … I want to fuck you’.[77]

    [77] T70.36-T71.36.

21. WF described trying to fight with the accused to get him off her, but he was able to force her face down onto the bed as he pulled her left arm behind her back.  He then tried to get her leggings off by putting his hand over hers and dragging them down.  WF fought back ‘…with everything I could …’ as she felt pain in her shoulder, neck and generally.  The accused then said ‘… shut up.  I haven’t fucked anyone for a month now…’.[78]

    [78] T72.26-27.

22. The accused continued to apply a strong and unrelenting head-lock to WF, and her thoughts were that she was going to die, just before she blacked out.  When she came to, WF found herself on the floor, face downwards.[79]  WF then graphically described the sexual assault upon her.  She said the accused was sitting behind her trying to insert his penis and his fingers into her anus.  Her leggings and underpants were down to her knees.[80]  WF had gained awareness again and could breathe.  She felt the accused trying to use his fingers to insert his soft penis into her anus.

    [79] T73.12-27; T339.19-27.

    [80] T74.11-31.

23. The accused was unsuccessful but still applying significant pressure to WF’s neck.  WF was worried about not being able to breathe and suffering another blackout.  She tried to fight the accused off, shaking her body from side to side to try and get his arm away from her neck.  This caused her pain.[81]

    [81] T343.32-T344.6.

24. WF’s evidence was that:

    … when he was doing that position to not use force too much because I can’t breathe and I told him I’ll help him with everything, everything.  He told me ‘you do whatever I tell you to do’ and then he grab my hand and he spit onto his hand and then rub his penis around my anus with his saliva to make easy for him to get in.[82]

    [82] T75.19-25.

25. At this time the accused had positioned WF in a standing position, bent forwards over the bed.  He dragged WF’s leggings and underpants off with his leg or foot.  The accused was still not able to penetrate WF’s anus, telling her ‘…you fucking dry, I can’t get in…’.  She became scared that he might kill her.  WF therefore told him ‘…I’ll help you do everything…’.[83]  At this time the accused still had WF’s neck compressed as he applied a strong head-lock.  WF then demonstrated in quite an animated and very graphic way how the accused held her as she reached between her legs to masturbate him for a very long time, describing this as: ‘…he wanted me to get him hard so he can fuck me…’.[84]

    [83] T77.13-16.

    [84] T77.21-27.

26. When the attempts at anal sex were unsuccessful, the accused placed WF on her back on the side of the bed and lifted her legs over his shoulders and penetrated her vagina.[85]  WF described this sexual intercourse as being very hard with the accused ‘…thrusting like an animal…’.[86]  This went on for what was described as a ‘ …very, very long time…’,[87] until the accused ejaculated while calling out AL’s name.[88]  WF then thanked the accused for not killing her.  Her evidence was that the offending concluded around 7.00am.  WF’s description of the sexual assault upon her, was in stark contrast to the remainder of her evidence.  In describing the accused’s actions and words she used explicit language and animated and graphic actions.  When discussing other topics, she was often vague, even about the most recent of events, and was reluctant to discuss certain topics, displaying a more limited command of the English language.

    [85] T78.33-T79.6.

    [86] T79.16-20.

    [87] T79.37-T80.1.

    [88] T79.21-31.

27. An example of this was when WF was asked in cross-examination about her evidence that she had blacked out on the bed, due to the head-lock applied, and that she had then she woken up on the floor, face down.  She confirmed she had no memory of how she came to be on the floor because she had passed out.[89]

    [89] T339.35-T340.4.

28. Defence Counsel took WF to paragraph 26 of her police statement of 9 May 2019.  Before doing so WF acknowledged that the police statement was true and correct, but she could not remember all of what she had said.[90]  When asked if she remembered telling police that: ‘…we both fell off the bed onto the floor because we were both struggling – he was still on top of me…’, WF’s answer was that although she agreed it was what she told police: ‘…I can’t remember.  Long time ago…’.[91]

    [90] T340.35-T341.2.

    [91] T341.14-17.

29. WF then refused to accept the accuracy of the police statement saying:[92]

    [92] T341.18-T341.33.

    Q.Do you agree that that is what you told the police on 9 May 2019.

    A.Yes.

    Q.And your memory then would have been better than it is now. Would you agree with that.

    A.From this statement - I never read the statement but I remember everything in my head of what happened.

    Q.That's not what I'm asking you. What I'm asking you is do you agree that your memory of events back on 9 May 2018 would be better then than it is now.

    A.Do you mean when I was raped and now?

    Q.Let me ask this question. Do you agree with me that that part of the statement which has just been translated for you indicates that you were fully conscious when you went from the bed to the floor.

    A.No.

30. In relation to the struggle with the accused, WF gave no evidence that her clothes were damaged or torn.  She was cross-examined on this issue confirming that the dress she was wearing was a maxi dress that came down to her ankles.  Despite the description of the accused being extremely rough with her, and she fighting him with all she had, WF’s evidence was that he never tried to rip her dress off her, and never tore any of her clothing, including her underpants.[93]  WF was then cross-examined further about the dress she was wearing:[94]

    [93] T333.3-T334.5.

    [94] T334.3-T335.4.

    Q.So he at no stage was grabbing hold of your dress trying to rip that off at any stage, is that your evidence.

    A.No.

    Q.How did he manage, the dress itself comes down to just below your knees, doesn't it.

    A.Above the ankle.

    Q.So it is, what, a three-quarter length dress.

    A.Call maxi dress, it comes down just above the ankle.

    Q.So to get at your pants, to get at your leggings, he must have put his hands underneath your dress.

    A.I was lying at that time and he was grabbing onto my neck and then trying with the other arm put his hand on my hand trying to pull the pants down from the back.

    Q.But he would have had to have lifted up your skirt, wouldn't he, to be able to have done that, your dress.

    A.I don't know.

    Q.There's no damage to your dress, is there.

    A.I can't remember.

    Q.No rips or tears or anything like that, is there.

    A.I can't remember.

    Q.There are no rips or tears to your underpants either, are there.

    A.No.

    Q.There are no rips or tears to your leggings as well, are there.

    A.No.

    Q.I mean, despite the force of the attack you have described there's no damage to any of your clothing at all, is there.

    …

    A.I don't know. I didn't look at it.

1. The evidence of WF regarding what she was wearing during the encounter on 4 May 2019, namely a long dress with leggings, is not consistent with her vivid descriptions of the rough and quite violent sexual acts perpetrated upon her by the accused.  In fighting to keep the accused off her, she does not describe being tangled in her long dress.  This is difficult to accept given her evidence of the accused throwing her around and putting her legs over his shoulders.  When challenged about this, WF again reverted to not being able to remember what had happened.[95]  I have doubt as to the truthfulness and reliability of this evidence.

   [95] T334.16-22; T335.1-3.

2. WF also gave evidence that when the accused began attacking her and placed her in a head-lock she screamed out as loud as she could, agreeing that it was a loud piercing scream.[96]  She was also fighting the accused as she tried to get him off her, and fell to the floor when she blacked out.  WF never explained what happened to her dog during this attack, despite her taking him to bed with her.[97]  She gave no evidence as to whether he was barking or aggressive towards the accused, during his attack upon WF.  She only mentioned him again in the context of leaving the unit the next morning to get away from the accused.[98]

   [96] T337.31-37.

   [97] T67.27-28.

   [98]  T86.18-22; T90.26-28.

3. The lack of evidence regarding WF’s dog being close by during the accused’s attack on WF is not consistent with the footage from Constable Wybro’s body worn camera.[99]  Constable Wybro attended at the Plympton Unit at approximately 8.35am on 4 May 2019 and activated her camera at 8.54am.  The camera footage showed Constable Wybro speaking with WF and trying to get her to explain what had happened.  During this time other police officers were also in attendance.  As WF is explaining what had happened, her dog can be seen barking loudly and running around in an agitated fashion.  WF had to get up and interrupt the interview several times to restrain the dog and calm him down.  The accused also gave evidence that when he arrived at the Plympton unit with WF on 3 May 2019 her dog ran around barking.[100]

   [99]  Exhibit P6.

   [100] T463.3.

4. There is an inconsistency between the camera footage contained in Exhibit P6 showing the response of WF’s dog to the police presence in her home on 4 May 2019, and the evidence of the accused regarding how the dog responded to him on 3 May, and the failure by WF to mention the dog’s presence or distress during the violent attack upon her by the accused.  However, in assessing this inconsistency, I take into account that it was not put to WF for her to explain.

5. Another unexplained inconsistency is WF’s evidence that the encounter with the accused occurred around 4.00am.  She knew this, as it was when her neighbours in the above unit began moving around, getting ready for work.  She regularly heard noises, including the flushing of a toilet.[101]  Despite this, those neighbours did not knock on her door to investigate her loud piercing scream, or the noise of her crashing to the floor.  They did not report hearing such a scream to police.  This puts in issue the reliability of WF’s evidence that she screamed loudly and in a piercing manner as she was attacked by the accused.  Especially when, on her evidence, she had heard her neighbours moving around in the unit directly above hers around the time of the sexual assault.

   [101] T82.7-10; T336.6-T337.10.

6. After the encounter on 4 May 2019 had finished, WF went into the bathroom to wash herself using a small bowl and some soap.  She took her leggings and under pants off.  They were then on one of her legs.  She washed her genital area two or three times.  She said that she placed her clothes in the washing machine and put-on clean underwear.[102]  That evidence is inconsistent with later statements made by WF that she did not put anything in the washing machine.[103]  That later evidence is inconsistent with evidence of the Investigating Police Officer, Brevet Seargent Heard who on the morning of 4 May 2019 found three female G-strings and black leggings together with other items in the washing machine at the unit, which was full of water.[104]  The other items appeared to be a mixture of men’s and women’s clothing.  They were not forensically tested as a result of being wet and the likelihood of potential cross-contamination.[105]  WF denied there being washing in the machine when asked if the G-strings were hers: [106]

   … no, I didn’t do the washing.  There’s nothing there.

   [102] T83.2-25.

   [103] T94.31-33; T332.8-10.

   [104] T195.11-32.

   [105] T195.33-T196.9; T36.8-22.

   [106] T332.8-10.

7. WF was not able to immediately call anyone for help after the encounter with the accused as he had taken her phone from her bedside table where she had left it the night before.  In the morning the accused had it next to him on the mattress in the lounge room.[107]  He would not let WF leave the unit.  A short time later DB knocked on the front door.  WF was not expecting him.  The accused answered the door and told DB to come back in 20 minutes.[108]  WF, scared that the accused would kill her, invited DB inside so that he could have a shower. 

   [107] T83.34-T84.20.

   [108] T84.28-T85.6.

8. DB came into the unit, but WF did not say whether he in fact had a shower, (although the accused said he did).[109]  WF’s evidence was that DB came and sat on the sofa and she tried to tell him that the accused had raped her.[110]  In cross-examination WF gave a different version of events when she said, after inviting DB in for a shower, she took him into the bedroom to tell him the accused had raped her.  She told DB to take him away as she did not want the accused in the house.  He was not to bring him back.[111]

   [109] T482.1-6.

   [110] T85.29-33.

   [111] T356.34-T357.5.

9. WF then gave a further version of what occurred when DB arrived on the morning of 4 May 2019.  During cross-examination she stated that when DB came in, after she had invited him in for a shower, he sat down in the lounge and asked:

   ‘… what happened to you, between you?” 

10. WF told the accused to tell DB what he had done to her, to which he replied:

    “… she was upset with me …”. 

11. WF finally spoke to DB in the bedroom away from the accused, and told him: [112]

    “… he raped me, he raped me …”.

    [112] T362.11-29.

12. It is not clear what DB’s response was, except that WF said that she heard the accused tell DB that she was upset with him.  While the accused and DB were talking, WF was able to grab her phone, and she left the unit with her dog.[113] 

    [113] T366.35-38.

13. The placement of WF’s phone before, during and after the alleged offending is another area of inconsistency in her evidence.  In cross-examination WF gave a different version of events and became evasive when taken to her police statement:[114]

    [114] T365.26-T368.10.

    Q.You say, don't you, that your evidence is that your phone had disappeared from the cupboard next to your bed.

    A.Yes, yes it was by the - near the bedside cabinet, on the bedside cabinet.

    Q.You say, don't you, that after Leroy had attacked you that you noticed that your phone was no longer on the table, the cupboard, next to your bed.

    A.At that time I didn't know where the phone was and I found it in the morning before I went out for a walk.

    Q.That is right. Your evidence was that you just noticed that it was missing from the cupboard, the table next to the bed, you didn't know what had happened to it at that time.

    A.Yes.

    Q.Your evidence is that you then saw it later on the mattress that had been set up in the lounge room and that Leroy was sitting next to it, is that correct.

    A.No.

    Q.You didn't see it on the phone, you didn't see the phone on the mattress next to Leroy.

    A.No.

    Q.When did you next see the phone.

    A.Before I went out for a walk I saw the phone next to Leroy but it wasn't on the mattress.

    Q.I thought that your evidence was that you noticed that the phone was no longer on your drawers or your cupboard and that you saw the phone next to Leroy on the mattress later.

    A.No. It's not far from him.

    Q.Was it on the mattress.

    A.No.

    Q.Where was it.

    A.Not far from him.

    Q.Was it on the floor, was it on the lounge, where was it.

    A.It's on the table in the lounge where the clocks are.

    Q.I think your evidence was that you picked up the phone at some point, is that right.

    A.Yes.

    Q.When did you pick it up.

    A.When Darren was talking to Leroy and he wasn't interested in it so I picked it up.

    Q.That was on the table, was it, where the clock is.

    A.Yes.

    Q.Is that when you left with the dog.

    A.Yes.

    Q.You never gave any of that information to the police, did you, in any of the statements that you have given.

    A.I can't remember.

    A.* I am sorry your Honour.

    Q.Looking at your statement of 9 May 2019, in particular at p.13, para.39 -

    A.Yes.

    Q.Is that what you told the police.

    A.* Yes.

    Q.That 'When Leroy came, ejaculated, he tried to grab my telephone because he was scared I might call the police'.

    A.Yes.

    Q.When did that happen.

    A.I can't remember.

    Q.Do you remember Leroy actually doing that.

    A.I can't remember when that happened, I can't remember.

    Q.Because your evidence is that you first noticed the phone missing when you look at the table where it is supposed to be and you just don't know what's happened to it.

    A.I asked him 'Where is the telephone?' and he said 'I don't know where it is'.

    Q.What about when he came, did he try to grab your telephone when he came.

    A.No.

    Q.That is not true, what you told the police at para.39.

    A.I can't remember.

    Q.You never said to the police in any of your statements, did you, that you took the phone from the table near the clock.

    A.Excuse me, I can't remember.

    Q.I mean, you have just said those things for the first time in your evidence. You have never ever said that to the police, that you took the phone from the table near the clock.

    A.Leroy took the phone and put them on there. I wasn't the person who put the phone there.

14. This evidence is very different to the sworn evidence WF first gave, about locating her phone before leaving the unit, and contradicts what she told police in her first statement of 9 May 2019.  When challenged WF fell back on responding by saying that she did not remember the events she was being asked about.  This was a response WF often gave, when she did want to acknowledge that what she had said previously was wrong, or when an inconsistency in her evidence was pointed out to her.  The inconsistencies in this part of WF’s evidence raises doubt as to her creditability and reliability.

15. After she left the unit on the morning of 4 May 2019, WF called her daughter JF telling her that she had been raped by the accused.[115]  JF called the police and told WF to go back home and wait for them to arrive.  WF complied and found the accused and DB still at the unit.  They left before the police arrived.  When the police attended at the Plympton unit, WF provided details of what had happened to Constable Wybro who captured WF’s statement, and photographs of the Plympton unit, on her body worn camera.[116] 

    [115] T91.6-12; T91.27-31.

    [116] Exhibit P6.

16. WF was then conveyed by ambulance to the Royal Adelaide Hospital, where she was first attended to by Dr Rodriguis who recorded in her notes that WF had been punched on the right side of her face by the accused.  It is an agreed fact that WF told Dr Rodriguis that the accused had punched her.  WF denied in evidence that the accused ever punched her.  She also denied telling Dr Rodriguis that he had punched her, despite the agreed fact.[117]  This is an inconsistency in WF’s evidence that cannot be resolved, given the agreed fact.

    [117] T345.4-19.

17. WF’s evidence was initially that the accused had never hurt her, except internally.[118]  She then expanded on this to say that when the accused had her in a head-lock her neck, arms and shoulders were sore.  However, she never looked for, or saw, any marks or bruising on her neck.[119]  WF was later examined by Dr Lyndall Young, a specialist in sexual assault, who worked with Yarrow Place.  She reported that there were no marks on WF’s neck.  No bruises or abrasions.[120]  I will discuss Dr Young’s evidence later.

    [118] T345.16-21.

    [119] T344.13-T345.3; T345.29-30.

    [120] T240.27-29.

18. WF gave evidence that although she still speaks with JF she has not spoken to AL since May 2019, as AL had sent her boyfriend to Adelaide to rape her.[121]  She later attempted to withdraw that allegation by stating she did not know why she said it.[122]  AL in her evidence agreed that, despite her worry about her mother and what had happened between her and the accused, she had not spoken to WF since 2019.  This was because she had great difficulty accepting what had occurred.[123]  In her words the sexual offending had ‘…rocked her world…’.[124]  When put to AL in cross-examination, she denied that she ever said to WF that she had sent the accused to Adelaide to rape her.  She agreed that such a suggestion was ridiculous.[125] 

    [121] T304.19-23.

    [122] T304.30-34.

    [123] T417.4-10.

    [124] T428.10-13; T429.26-30.

    [125] T414.30-34.

19. I will discuss the evidence of JF and AL, and issues that their evidence raises in relation to WF’s evidence, later in these reasons.

    The Accused’s Evidence

20. The accused testified that the encounter on 4 May 2019 with WF was consensual; that he never applied a head-lock to her; he did not injure her neck; and he never attempted anal intercourse with her.

21. The accused confirmed the drug induced lifestyle he had lived from the time he moved into the Lee Point Road property at 18 years of age. He began using significant levels of methylamphetamine with WF, AL, DB, JF and WF’s boyfriend Russell.[126]  The accused agreed that methylamphetamine had an effect upon him, including enhancing sexual experience, and at times making him more aggressive.  He did not shy away from the fact that using methylamphetamine impacted his mood and behaviours, adding that it had the same impact upon others in the household.  This included WF, who the accused said would not act her age when using drugs, but rather tried to be a younger version of herself.[127]

    [126] T449.26-T450.3, T450.27-T451.2.

    [127] T453.1-12.

22. During the time that the accused lived at the Lee Point Road property he became aware that WF was working as a sex worker.  She would dress in skimpy outfits before leaving the property, often asking the accused to drive her to a job.[128]  When WF was living in hotels the accused would visit and take drugs to her.  Each time he visited, the accused and WF would use drugs together in the hotel room.[129]  This evidence was given in a very matter of fact way by the accused, as if smoking methylamphetamine with your girlfriend’s mother was a commonplace, and normal activity.

    [128] T456.18-27, T493.7-12.

    [129] T455.14-27.

23. On one occasion, in early 2016, after WF and the accused had smoked methylamphetamine, they had sexual intercourse in WF’s hotel room.  When they had finished WF said no-one should be told what had happened, especially AL or JF.  The accused openly admitted that this sexual encounter should not have happened and that it was influenced by the use of methylamphetamine.[130]  Unfortunately, the accused later told DB what had occurred, and JF and AL then found out.[131]  It created a rift between AL and WF.  Initially AL was very angry with the accused, but when shown text messages between him and WF she accepted that her mother was lying and took all her anger out on WF. [132]  The accused’s evidence was that AL and WF did not speak to each other for a long time.[133]  AL in evidence confirmed that she did not speak to WF for a lengthy period of time, but denied that this was because of being told of a sexual encounter between the accused and WF.

    [130] T456.32-T457.18.

    [131] T493.17-34.

    [132] T457.20-T458.18.

    [133] T458.22-23.

24. During this time the accused’s relationship with AL continued, with each of them using methylamphetamine on a regular basis.  It was a turbulent and toxic relationship, contributed to by their significant drug use and the drug scene generally.[134]  In or about early 2019, the accused and AL talked about moving to Adelaide for a fresh start, however AL’s relationship with WF had not yet mended and so they moved to Queensland instead.  The relationship between the accused and AL worsened, and AL moved back to Darwin where she began seeing another man.  The accused said at this time he was not ‘with’ AL.[135]  He gave evidence of having sex with other women in Queensland.

    [134] T495.1-23; T497.29-31; T500.20-29.

    [135] T501.8-18.

25. However, despite these relationship issues, mainly related to drug use, and as WF had suffered some health issues, AL and the accused decided to move to Adelaide.  As AL was living in Darwin and had to make arrangements before moving, the accused made the first move to Adelaide.  When the accused travelled to Adelaide on 3 May 2019 there were no firm plans in place for AL to travel to Adelaide.[136]

    [136] T460.19-23.

26. The accused says he was collected from the airport by WF who was showing clear signs of recent methylamphetamine use.[137]  This did not surprise the accused as he discussed drugs with WF during the drive home.  This included her asking if the accused had brought drugs with him.  She was excited when he said he had.[138]  WF started driving erratically and very fast as if she was eager to get home.  She also told the accused that she was still working, which he took to mean working as a sex worker, as he never knew her do any other type of work.[139]

    [137] T488.35-T489.8

    [138] T461.12-16.

    [139] T461.28-T462.15.

27. After arriving at the Plympton unit, the accused noticed two ice pipes on a low table in the lounge room, next to box of items that included a box of condoms.  The ice pipes were described as one new one, and a second pipe that appeared to already have some methylamphetamine in it.  The accused weighed out some of the drug that he had brought with him and put some into each pipe.  He and WF then smoked the methylamphetamine together.  The accused described the impact of the drug on WF as making her very talkative, although she didn’t always make sense. [140]

    [140] T463.19-24.

28. At some time later in the afternoon WF and the accused drove to Bunnings to get materials to fix the air conditioning unit in WF’s car.  On return home the accused worked on WF’s car for about half an hour, before going inside and giving WF his washing for her to place in the washing machine.  The accused also spoke to AL about her plans to come to Adelaide.  WF denied that any of this had occurred.

29. During the afternoon the accused also exchanged some of his drugs with WF for some jewellery and watches that she had produced in a bag.  The accused’s evidence was that it is common in drug deals to trade jewellery for drugs.  He had done it before, and he had seen WF do it while in Darwin.[141]  AL also confirmed that WF and others had exchanged jewellery for drugs while in Darwin.[142]  The accused was later found in possession of jewellery by police.  In evidence, WF identified all that jewellery as belonging to her.[143]  WF claimed that the accused had stolen the jewellery from her.[144]  She also gave evidence that most of the jewellery in the accused’s possession was jewellery that had been given to her by Kath, in exchange for driving Kath to drug deals.[145]

    [141] T468.29-34.

    [142] T423.22-T424.7; T424.22-24.

    [143] T311.11-19.

    [144] T310.38-T311.10.

    [145] T311.20-31; T312.27-33; T318.36-T319.5; T322.12-26; T322.29-T323.5; T326.15-T327.1.

1. In relation to the perianal swab, that being a swab taken from the area between WF’s vaginal opening and her anus; Ms Mitchell gave evidence that it was approximately six times more likely to obtain the DNA result if the accused was a contributor.  This was described as ‘slight support’ for the accused being a contributor.[234]  When asked in cross-examination, Ms Mitchell agreed that it was possible that there could have been transference of DNA if there had been some hand contact between WF and the accused, and WF later scratched or touched her bottom in the perianal area.[235]

   [234] T278.19-32.

   [235] T288.21-33.

2. The forensic evidence is of limited assistance in determining the issues in this matter.  The urine test confirms that WF had consumed methylamphetamine at some unspecified time.  The result is consistent with the accused’s case that WF smoked the drug with him during the afternoon and evening of 3 May 2019.  It is also consistent with WF’s evidence that she smoked the drug on the morning of 2 May 2019, and consistent with what she told police in her statement of 1 August 2020, namely that she had smoked the drug every morning the week of the offending, except 3 May 2019.

3. The evidence of the presence of methylamphetamine in WF’s urine confirms that in May 2019 she was continuing to use the drug, despite what she had told her daughters, namely that she had stopped using methylamphetamine.

4. The DNA evidence is largely unremarkable given the accused’s evidence that he had sexual intercourse with WF on 4 May 2019.  However, the evidence of a third contributor to the DNA located in one of the vaginal swabs could be consistent with WF having had sex with another male earlier on 3 May 2019 or in the days before.  However, the ‘Y’ chromosome testing was not conducted, and therefore this remains no more than a possibility.  The presence of a third contributor provides limited support to the accused’s case that WF was having sexual interaction with other people as a sex worker.

5. It may also be argued that the lack of DNA material under the accused’s fingernails supports his assertion that he did not use his fingers in or near WF’s anus.  In my view the evidence is not conclusive.

   Professor Jason White

6. Professor White is an Emeritus Professor within the field of Pharmacology.  He has previously held the position as the Director of Drug and Alcohol Services in South Australia and has studied the actions and effects of drugs on the brain.  He has specialised expertise in the effects of methylamphetamine, a drug that he confirmed is illegal in Australia.

7. Professor White explained that when smoking methylamphetamine there is a rapid increase in the level of the drug in a person’s blood stream, which continues to increase slowly for another approximately two and a half hours after smoking, until it begins to decrease.  He described the effects of methylamphetamine to be euphoria or an intense pleasurable feeling, particularly if the drug is injected or smoked.  It also increases alertness; decreases fatigue, leading to insomnia; increased self-confidence; and can lead to risky, impulsive, or reckless behaviour including aggression and violence.  He described this as people becoming more disinhibited.[236]  Professor White also described people having delusions; displaying faster speech; confused thoughts; agitation; paranoia and displaying irrational behaviours.[237]

   [236] T518.30-T519.1; T522.2-T523.4

   [237] T519.9-T520.7.

8. In relation to delusions and paranoia Professor White explained that methylamphetamine users can appear quite rational and convincing when relating their fears and or story to another person.[238]

   [238] T520.13-31.

9. In relation to sexual behaviour, Professor White said that this can be enhanced by using methylamphetamine, as a result of the effect of increased confidence and disinhibition.  He described how people use the drug deliberately to enhance their sexual experience, although a large dose of methylamphetamine can lead to erectile dysfunction.  Professor White described how the disinhibition effect of methylamphetamine is quite likely to lead to more risky sexual practices, including more vigorous sex.  Methylamphetamine use has also been associated with auto-erotic asphyxiation.[239]

   [239] T523.1-T524.29; T525.2-15.

10. Asked about the ability of methylamphetamine users to control their daily intake of the drug, Professor White said it was not common, and users generally found it difficult to do, as they developed a tolerance to the drug and lost the effect of the drug that they were seeking.  In those circumstances the user will have a break-out if an opportunity arises to use more of the drug:[240]

    A.Most people will take the opportunity to use a greater amount of drugs than they would normally use if they suddenly have access to a larger quantity, particularly if the amount that they use has been governed largely by their financial ability to purchase it because that's very often what is the major brake on their level of use, there's only so much money they've got to purchase it. In such a situation a person who suddenly has a larger amount than normal available will normally avail themselves of use of the drug.

    [240] T527.12-T527.21.

11. Professor White also gave evidence of the long-term impact of methylamphetamine use, agreeing that this included a person who has used the drug for more than 10 years.  These impacts include loss of memory for events, and cognitive impairments due to damage to the brain.  If a person has imbibed a large amount of methylamphetamine and become intoxicated they may have difficulty remembering events that took place while they were intoxicated or may suffer false memories if they had experienced psychotic effects such as hallucinations or delusions.[241]

    [241] T527.34-T528.33.

12. During his evidence Professor White was shown the first eight minutes of the footage from Constable Wybro’s body worn camera[242], and was asked if in his opinion WF was affected by methylamphetamine.  He opined that she showed characteristics common with methylamphetamine use, including rapid speech, fidgeting, and being agitated and alert for someone who had been up all night.  However, he could not be certain that those behaviours did not occur for other reasons, independent of methylamphetamine use.[243] Professor White was not prepared to come to any conclusion as to the cause of any of WF’s behaviours.

    [242] Exhibit P6.

    [243] T530.6-T531.13; T531.24-38.

13. Professor White’s evidence provides some explanation for both WF’s and the accused’s behaviour on 4 May 2019 if they were under the influence of methylamphetamine as is the accused’s evidence.  This is particularly so in relation the increase in sexual desire.  Defence Counsel submitted that drug use explained many matters in this case, that may otherwise be difficult to accept.  This includes why WF may have engaged in consensual sexual intercourse with he accused despite their respective relationships with AL.

14. Professor White’s evidence cannot be used as conclusive evidence, however his opinions on the impact of long-term drug use upon both parties is a matter I take into account.

    Consideration

15. In this matter I was presented with two completely different, and conflicting, accounts, in relation to the events that occurred over 3 and 4 May 2019, and which are the subject of the three charges.  There were some parts of the accused’s evidence that I found unpersuasive.  An example is his evidence that on the drive home from the airport WF zig-zagged through traffic at high speed and then got lost; that it then took them in excess of 45 minutes to travel the 6km from the airport to the Plympton unit; and that WF behaved in this way as she was very excited about the drugs the accused had brought to Adelaide.  There were also times when the accused clearly became annoyed with questions in cross-examination and began giving very brief responses, or just shaking his head.  However, he gave evidence regarding the sexual encounter with WF that was straight forward, with none of the hyperbole of WF.  He appeared embarrassed when having to describe the sexual encounter and used none of the explicit or graphic language using by WF in her evidence and in her complaint to Constable Wybro.

16. For the most part I found the accused to be a reasonable and direct witness, who gave a consistent and convincing account, that raised a reasonable doubt as to his guilt.  He did not avoid uncomfortable topics and gave frank evidence about the impact of his methylamphetamine addiction upon his life.

17. All of the evidence in this case must be assessed through the lens of the drug use of all involved, and the drug sub-culture as it was described when the accused lived with WF at the Lee Point Road property.  The family of WF, JF and AL are not what one may describe as a normal suburban family.  They, the accused, and their friends have all been very heavy users of methylamphetamine.  The accused described the Lee Point Road property where they lived in Darwin as being unfurnished, with the yard being a wreck and the pool full of algae.  Evidence was given of each of WF, JF, AL and the accused being involved in the selling of drugs, and in the exchange of jewellery for drugs.  Drug filled parties were described, with the use of methylamphetamine day and night.  The accused advanced this as a reason for the consensual sex he has had with WF on more than one occasion.  He did not shy away from the fact that it should not have happened but suggested that this is what drugs caused people to do.  He was frank and open about the impact of drugs upon his life.  I found his evidence generally creditable and reliable.

18. However, even if I do not accept all or even part of the accused’s evidence, I must still be satisfied that the Prosecution has proved each element of the charges beyond a reasonable doubt.  This rests very much with the evidence of WF as supported by her daughters.  I am unable to accept WF’s version of events beyond reasonable doubt.  I do not find her to be a reliable witness.  I also have doubt as to the credibility of her allegations.

19. My doubt arises from several part of the evidence.  I have already discussed many of these inconsistences in my reasons.  Although this is not a complete list, they include:

    1.WF’s evidence regarding AL’s move to Adelaide and that she was arriving in Adelaide one hour after the accused on 3 May 2019.  WF gave evidence that both AL and the accused told her that without ever identifying that AL was not living with the accused and was coming from a different city.  Both AL and the accused gave clear evidence that there were no set plans as to when AL would arrive, as she still had arrangements to make in Darwin before she could move to Adelaide.  AL and the accused gave consistent evidence that their relationship was under strain in May 2019, and that the accused was always going to Adelaide first.  AL, who was clearly trying to support her mother by her evidence, still denied that she had ever said she was coming to Adelaide an hour after the accused.  She said her mother called her several times to ask when she was coming to Adelaide, and AL told her she was not yet ready to come down.  I have doubt as to the truthfulness of WF’s evidence regarding her conversations with AL.  It is not consistent with AL’s evidence or the facts generally.  I find that it was evidence given by WF to support her case that she was scared of the accused;

    2.WF’s evidence in relation to her drug use before the accused’s arrival in Adelaide.  As with much of her evidence, WF attempted to minimise any behaviour that may have been regarded by the court as ‘bad behaviour’.  Although admitting to ongoing use of methylamphetamine, WF gave evidence that she only smoked the drug when she could afford it, and if she could not, she would just sleep.  WF also said that in the week of the accused’s arrival in Adelaide, she had only used drugs once, being on Thursday 2 May.  She confirmed that evidence in cross-examination, before acknowledging that she had signed a police statement on 1 August 2020 admitting that she had smoked ice every day that week.  WF refused to admit that her evidence was inconsistent with the police statement, by using her often repeated answer that she could not remember what she had told police.  Her evidence was clearly inconsistent;[244]

    3.The issue of WF’s drug use was also put into issue when AL gave evidence that the planned move to Adelaide was for a fresh start and to escape from the drug scene in Darwin.  She understood from WF that she was no longer using methylamphetamine.  WF confirmed, when asked in cross-examination, that she had told AL that she had stopped using methylamphetamine, and that this was untrue.  Later she changed her evidence to her telling AL that she was still using methylamphetamine, but that she planned to give it up.  Again, WF’s evidence was not consistent, and she changed her story as to what she had told AL about her ongoing drug use;[245]

    4.WF’s denial of a statement made to police on 9 May 2019 regarding the methylamphetamine brought to Adelaide by the accused raises concern.  I have set out the evidence in this regard, and the inconsistency in the police statements at [77] to [82] above.  WF could not explain why she had made a statement only five days after the alleged offending that the accused had showed her a white rock in a plastic bag on the afternoon he arrived in Adelaide, and that she knew it was drugs.  She had later signed that statement.  There is a clear inconsistency between WF’s two statements to police.  She could not explain this in her evidence.  She fell back on her answer of, ‘…I can’t remember…’.  An inadequate answer that WF employed when questioned about matters that were uncomfortable for her to answer;

    5.Inconsistent evidence was given as to the circumstances of WF’s falling out with AL in 2016.  WF gave clear evidence that she and her daughter had argued over AL taking all of WF’s drugs, meaning that she was left with no drugs to sell.  AL never paid for the drugs, and owed WF $15,000.00.  WF also said that she and JF were scared of AL because AL sold drugs;

    AL was quite incredulous when that version of events was put to her in cross-examination and denied ever owing her mother $15,000.00.  JF also denied ever hearing of such a drug debt being owed by AL.  This is an instance where I have reached the view that WF made up a story, in an attempt to bolster the evidence, she was giving.  On this occasion WF was being asked the reason for the break down in her relationship with AL, and it was suggested that it had been caused by AL learning that the accused had had sex with WF.  I found that on several occasions WF tried to bolster her evidence by adding colour to it.  In this case it was a large debt of $15,000.00 owed by AL.  This debt was denied by everyone else who was asked about it;

    6.The same occurred when WF gave evidence that the first person she told about being raped was DB when he turned up, unexpectantly, at the Plympton unit early on 4 May 2021.  I have set out the inconsistencies with that evidence at paragraphs [117] to [121] and [174] to [176].  For the reasons I have already discussed, I confirm my view that WF made up that complaint evidence to bolster her version of the sexual encounter with the accused;

    7.Another inconsistency in WF’s evidence is the placement of her mobile telephone before, during and after the alleged offending.  I have set out that evidence at paragraphs [122] to [123].  I find this evidence given by WF in court regarding her phone was inconsistent with her earlier evidence, and with a statement given to police on 9 May 2019.  When pressed about the inconsistency, WF again stated that she could not remember her earlier police statement.  That response regarding the earlier police statement was unconvincing;

    8.A significant inconsistency is in relation to the agreed fact regarding what WF told Dr Rodriguis had happened to her when she arrived at the Royal Adelaide Hospital on 4 May 2019.  It was agreed by her and put into evidence that she had told Dr Rodriguis that the accused had punched her in the face (her right cheek area was sore).  In oral evidence WF denied that had occurred and denied telling Dr Rodriguis that it had;

    This is an example where, WF was initially prepared to embellish her version of events to make the alleged offending sound as bad as possible, and to cast blame on the accused;

    9.There was also WF’s inconsistent evidence regarding her conversations with JF while she was still under oath, and I had given her a judicial direction not to discuss her evidence.  I found she did not tell the truth regarding the number of times she spoke to JF, or in relation to the content of her discussions with her.

    [244] See [83] to [86] above.

    [245] See [67] to [69] above.

20. As to the actual encounter on 4 May 2019 there were inconsistencies in WF’s evidence, as I have discussed, regarding:

    i.the accused going outside three times in quick succession before the sexual assault;

    ii.WF’s evidence that she blacked out and woke up on the floor that is inconsistent with her police statement of 9 May 2019;

    iii.the state of WF’s clothes relative to the description of the violent struggle she had with the accused, and her inability to remember how the accused was able to lift her legs over his shoulders whilst wearing a dress that came down to her ankles;

    iv.the description of the sexual intercourse as proceeding for a very, very long time with the accused thrusting like an animal compared with Dr Young describing WF’s genital injuries as three small injuries, and only around her vaginal opening.  The injuries are not consistent with the extent of the persistent forcible sexual intercourse described by WF;

    v.WF’s evidence that she let out a piercing scream during the attack, in addition to her falling to the floor, yet no evidence was given of her dog being agitated or barking, or her neighbours coming to her aid or to investigate;

    vi.WF placing her clothing in the washing machine after the encounter.

21. In the end, I am left with two competing stories on oath.  Both counsel were critical of the credibility of the evidence given by the other side.  I have already set out my views as to the way each of WF and the accused gave their evidence.

22. While it is entirely correct that the accused bears no onus and, is under no obligation to establish a motive on the part of WF to lie, the defence submitted that a previous sexual liaison between WF and the accused suggested a possible motive.  I have discussed that motive relative to the complaint and distress evidence.  That previous liaison, on the defence case, caused a break down in the relationship between WF and her daughter AL.  Although denied, the defence argues, and I agree, that AL was coy in her evidence regarding the reason for the break-down in the relationship, that lasted several years.  AL continues not to speak to her mother, having done so only once since the alleged sexual assault in 2019.  Again, she was evasive as to the reason why.  WF’s other daughter, JF, was also coy about the relationship between the accused and WF, stating that she did not want to recall what happened in Darwin, including when she lived in hotels with her mother.

23. Mr English submitted that it is a reasonable possibility that the first sexual liaison between WF and the accused took place in the context of the significant and admitted drug use of the accused and WF at the time.

24. The accused said that he brought drugs to WF at this time, when she was working as a sex worker.  Although denied by WF, Mr English submitted that such work fits in with WF’s lifestyle of living in hotels, that AL and JF would not comment on, and with her serious drug addiction.  Mr English submitted that WF could not have paid her living expenses and her expensive drug habit only from her Centrelink pension.  WF never said she worked in any other job, but admitted being ‘hopelessly’ addicted to methylamphetamine, for over 10 years.  It was completely plausible that WF would work as a sex worker to feed her drug habit.  Mr English also pointed out that although WF said JF stayed in hotels with her, JF was vague about that, telling the court she wanted to forget that time in Darwin.  Mr English submitted that it was a reasonable possibility that she wanted to forget about living with her mother in hotels, due to her mother working as a sex worker to fund her drug habit.

1. Mr English submitted there was a reasonable possibility of there being some truth in the motive for WF to lie about the encounter on 4 May 2019, particularly her panic that AL would find out.  In her mind, AL was expected to arrive soon, and how would WF face her daughter, who had been very angry with her before because of the prior sexual liaison with the accused.  The consumption of drugs adds to WF’s conduct, explaining her tears, panic and distress.  Mr English submitted it was better for WF to play the victim, than face the consequences.  In contrast he argued that the accused was frank and reliable and not shaken in cross examination.  The sexual encounter was not fanciful when the lifestyle of the parties was taken into account, including their dysfunctional relationships.  He submitted that there was a reasonable possibility that the sexual assault did not happen, and that the accused gave a version of events that is true.

2. The defence submission was also that there were cogent reasons to doubt the truthfulness and the reliability of WF’s evidence, and that the court should not dismiss the accused’s denials on oath.  That the case prosecution had not been proved beyond reasonable doubt.

3. Ultimately the Prosecution bears the onus of satisfying me beyond reasonable doubt of the accused’s guilt on each charge.  It is not a question of which version of events I believe.  The determination of this criminal trial depends on whether the evidence taken as a whole proves the elements of each offence beyond a reasonable doubt.[246]

   [246] Douglass v The Queen [2012] HCA 34.

4. As I have set out, I have many concerns regarding both the truthfulness and reliability of WF’s evidence, and that of her two daughters.  There is a lack of consistency, and when this was pointed out to WF she became vague and would lapse into not being able to remember what had occurred.

5. I have carefully considered the defence submissions regarding WF’s motive to lie about the allegations and whether I accept WF’s evidence, or the substance of it beyond reasonable doubt.  I find that I am left with reasonable doubt in relation to the whole sexual encounter between WF and the accused on 4 May 2019.  I am not persuaded beyond reasonable doubt to find that the accused had sexual intercourse with WF when she was not consenting, and when he knew she was not consenting, or was recklessly indifferent as to her lack of consent; or that he attempted anal intercourse with her or caused her harm with intent to cause harm by applying a head-lock.

   Verdict

6. For the reasons set out above I return a verdict of not guilty on each charge.