R v Latifi
[2014] SADC 27
•21 February 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v LATIFI
Criminal Trial by Judge Alone
[2014] SADC 27
Reasons for the Verdict of Her Honour Judge McIntyre
21 February 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge alone.
Accused charged with one count of indecent assault and three counts of rape involving one complainant.
Verdicts: Guilty of Counts 1, 2, 3 and 4
Evidence Act 1929 s34M, referred to.
R v LATIFI
[2014] SADC 27
The accused was charged on an Information dated 22 April 2013 with three counts of rape and one count of indecent assault as follows:-
First Count
Statement of Offence
Indecent Assault. (Section 56(1) of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
Abdul Mateen Latifi on the 30th day of October 2012 at Saint Marys, indecently assaulted SM, by touching her on her breasts.
Second Count
Statement of Offence
Rape. (Section 48 of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
Abdul Mateen Latifi on the 30th day of October 2012 at Saint Marys engaged in sexual intercourse with SM, without her consent, by inserting his fingers into her vagina, knowing that she was not consenting or being recklessly indifferent to the fact she was not consenting.
Third Count
Statement of Offence
Rape. (ibid)
Particulars of Offence
Abdul Mateen Latifi on the 30th day of October 2012 at Saint Marys, engaged in sexual intercourse with SM, without her consent, by performing cunnilingus on her, knowing that she was not consenting or being recklessly indifferent to the fact she was not consenting.
Fourth Count
Statement of Offence
Rape. (ibid)
Particulars of Offence
Abdul Mateen Latifi on the 30th day of October 2012 at Saint Marys engaged in sexual intercourse with SM, without her consent, by inserting his penis into her vagina, knowing that she was not consenting or being recklessly indifferent to the fact she was not consenting.
Outline of the Prosecution case
The complainant was a door-to-door saleswoman. On 30 October 2012 she was selling electricity in Saint Marys. In the course of that employment she attended at the address of the accused. She spoke to the accused in the front yard. She then stood at the front door whilst he went to get an electricity bill. The accused brought a gas bill. She told him he had the wrong bill and he went back into the house to find an electricity bill. She asked that he bring her a glass of water. He then returned with a glass of water but no bill. As she took the glass of water it is alleged that the accused grabbed her by the breasts and pulled her into the house. This is count 1.
It is alleged that the accused then manhandled the complainant into a bedroom and that whilst in the bedroom he penetrated her vagina with his fingers, (count 2) licked her vagina, (count 3) and then tried to put his semi-erect penis into her vagina penetrating her by about an inch (count 4).
During the course of the events in the bedroom the complainant sent her supervisor, ML, two text messages. The first said “help” and the second “I’m being assaulted I”. Mr L attended at the accused’s home where he observed the complainant to be distressed and her clothing somewhat dishevelled. The complainant made a verbal complaint of sexual assault by the accused to Mr L. He took the complainant to the Sturt police station.
The defence case is that the complainant voluntarily entered the accused’s house and that she initiated sexual contact between the two of them. The accused denies grabbing the complainant by her breasts as alleged in count 1 and also denies performing cunnilingus upon her as alleged in count 3. He did however insert his fingers into her vagina and may also have inserted his penis into her vagina. He says in respect of each action that his conduct was at the instigation of the complainant and took place with her consent.
Preliminary issue – stay application
The accused sought a permanent stay in respect of the charges against him on the grounds set out in his application dated 22 January 2014. I delivered brief reasons for my ruling on 23 January 2014 declining to stay the proceedings. The matters complained of are relevant to a consideration of the evidence in this matter and I will refer to those matters later in these reasons.
Legal Considerations & General Directions
The Court of Criminal Appeal in this State has made it plain that it is not necessary for a court, having conducted a trial by judge alone, to set out in the reasons for verdict the standard or obvious directions of which the trial judge is bound to be aware. I do nevertheless remind myself of the following:
1.An accused person is presumed to be innocent of a charge unless and until guilt has been proven beyond reasonable doubt.
2. The prosecution bears the burden of proving a charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence. The accused does not carry any onus of proof, and, to the extent that he might put forward a defence, he does not have to prove it.
3. By way of amplification, it is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate that the accused is probably guilty. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to any element of an offence, then I must give the accused the benefit of the doubt and find him not guilty.
4.There are four separate charges. They are tried together as a matter of convenience. Each is a separate offence. I must therefore consider each separately and return separate verdicts on each.
5.In making findings of fact I must rely upon the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense.
6. I have reminded myself of the normal directions given in this State to juries concerning the proper approach to assessing the various witnesses who gave evidence, their credibility and reliability and the proper approach to drawing inferences of fact.
7. I specifically note that in this case the accused elected to give evidence in this court. I remind myself of the following matters:
·He was not bound to give evidence.
·He has gone into the witness box and he has taken the oath like any other witness.
·He has exposed himself to the test of cross-examination.
·He could have remained silent leaving the prosecution to discharge its burden of proving the case.
·I should assess his evidence and the weight to be attached to it in the manner in which I assess the evidence of all of the other witnesses.
·I further note that by entering the witness box the accused does not assume any onus of proof. The onus remains with the prosecution.
8. I remind myself that it is not a question of preferring one version over the other. The sole task before me is to determine whether or not the prosecution has proved the elements of the charges beyond reasonable doubt. If I am unable to say where the truth lies in respect of a charge then necessarily it means that the prosecution has failed.
Complaint
Evidence was led in relation to the initial complaint by the complainant to ML and an elaboration to TW on 30 October 2012. In accordance with s34M of the Evidence Act 1929 I direct myself that the evidence of complaint is admitted:
1. to inform me as to how the allegations first came to light;
2. as evidence of the consistency of the conduct of the complainant; and
3. not as evidence of the truth of what the complainant alleged to Mr L and Ms W; and
4. that there may be varied reasons why the complainant has made a complaint of the offence at a particular time or to a particular person.
Consistency of conduct is relevant to my consideration of the complainant’s credibility. If the evidence of complaint is relevant to show consistency of conduct that evidence may buttress the complainant’s credibility.
Elements of the Offences
I now turn to the basic elements of the charged offences.
Indecent Assault
In order to prove the offence of indecent assault the prosecution must prove each of the following elements beyond reasonable doubt:
1. An application of force by the accused to the complainant.
2. That the application of force was deliberate or intentional.
3. That the application of force was unlawful, that is without lawful justification or excuse.
4. That the application of force was without the consent of the complainant; and
5. That the assault was accompanied by circumstances of indecency.
Rape
In order to prove the offence of rape the prosecution must prove each of the following elements beyond reasonable doubt:
1. That the accused had sexual intercourse with the complainant.
2. That the complainant did not consent to sexual intercourse with the accused; and
3. That the accused either knew that the complainant did not consent to sexual intercourse or was recklessly indifferent as to whether the complainant consented to sexual intercourse.
Prosecution case
The complainant was the main witness for the prosecution. The prosecution led evidence of a complaint made by the complainant to her supervisor ML and to her co-worker TW. Evidence was also called from Senior Constable Peter Milde and Brevet Sergeant Wilson both crime scene examiners from SAPOL. Detective Buck was also called to give evidence about attending at the accused’s house following the complaint.
Dr Karen Sandercock examined the complainant at the Women’s & Children’s Hospital and took various forensic samples from her which were examined by Mark Webster of the Forensic Science Centre who gave evidence of his examination of those samples.
Undisputed facts
The following matters are not in dispute:
·The complainant was a door-to-door saleswoman and on the afternoon of 30 October 2012 she was selling electricity in Saint Marys.
·In the course of her employment that day she attended at the address of the accused and they entered into conversation about electricity.
·There was sexual activity between the accused and the complainant in a bedroom at the accused’s house (bedroom 1).[1]
[1] Exhibit P2
·During the course of that sexual activity in the bedroom the complainant sent two text messages to her supervisor ML. The first was “help”, the second was “I’m being assaulted I”. Both messages were sent at 1.41 pm.[2]
[2] Exhibit P3
·ML rang the complainant at 1.44 pm but could only hear muffled noises. He drove to the location where he dropped her off. He saw the complainant in the vicinity of the accused’s house. She made a complaint, the terms of which are somewhat contentious, that she had been sexually assaulted by the accused.
·Mr L spoke to the accused in a cordial manner before getting into his van. He then attempted to call his superiors for direction. He made two calls at 1.49 pm without success and then spoke to his manager at 1.50 pm following which he drove the complainant to the Sturt police station.
·Whilst Mr L was speaking to the accused, the complainant, who was seated in the van, made a call on her mobile phone to her co-worker T at 1.51 pm. The complainant sounded distressed and complained that the accused had forced himself upon her.
·The complainant was examined by Dr Sandercock at the Women & Children’s Hospital between 18:55 and 20:10 on 30 October 2012.
·DNA reference swabs taken from the accused, the complainant and the complainant’s husband and various samples taken by Dr Sandercock were examined for DNA by Mark Webster. The results of his examination are contained in his report dated 21 November 2013[3] and are uncontentious.
[3] Exhibit P6
Key areas of dispute
Given there is no dispute that sexual activity took place as alleged in count 2 the key issue is whether that activity took place without consent as the complainant contends. In relation to count 1 the key issue is whether the accused grabbed the complainant by the breasts as she alleges. In relation to count 3 the issue is whether the accused performed cunnilingus on her and in count 4 whether he inserted his penis in her vagina as she alleges and if so, whether these activities took place without her consent.
The Complainant’s Evidence
The complainant said that she was 34 years of age. She was born in Canada and moved to Australia when she married her husband in June 2009. She had commenced working for Australian Sales & Promotions (ASAP) about 10 weeks prior to 30 October 2012 although she had worked in door-to-door sales before. On 30 October 2012 ASAP was undertaking door-to-door sales of electricity for Alinta Energy. She said that she worked with a team of people in a set area. They were all allocated an area within that larger area to door knock. They were dropped off by a van driven by one of her colleagues and picked up at a pre-arranged time and place.
On 30 October 2012 she said she started work at approximately 12:00. They left from McDonalds where they had met for lunch and headed out to Saint Marys. She was not sure precisely where McDonalds was as she is not familiar with the area. It took about 40 minutes to travel from McDonalds to Saint Marys. She thought she commenced her sales work in Saint Marys at about 12:40pm. She was scheduled to knock off at 6:00 pm. She said they were each given a map with a pick up and drop off point. The map for the day in question was tendered as Exhibit P5.
They were required to wear a uniform comprising black closed toe shoes, stockings, black skirt and an Alinta t-shirt or button up college shirt. She was dressed according to this requirement and also wore a black singlet style top under the button up shirt. The shirt had an Alinta logo. In addition she had an Alinta lanyard with a badge showing her picture and name.
ML was the team manager and he drove the van. She was dropped off on the corner of Adelaide Terrace and another street. She could not recall the name of the other street. She went to one house for approximately 30 minutes and then she went to the second house 29 Adelaide Terrace at approximately 1:10 pm.
She saw a young man between the age of 20 and 30 in his front yard either cleaning out his car or washing the car and a small child playing. She spoke to the young man in the front yard saying “Hello, my name is S I am in the area on behalf of Alinta”. He replied saying “you must be here about the electricity”. She said that they had a brief conversation about electricity and basic chitchat such as him being in Australia for about 6 years, the fact he was from Iraq, that he lived with his mother and siblings. He told her that his mother was not at home. She said that whilst he had an accent she had no difficulty communicating with him. He then said, “hang on I will get a bill“ and disappeared in the house. She waited out the front. She put her folder down next to the door. She kept her phone in her hand. The man returned and handed her a bill and an envelope. She said that it was a gas bill and not an electricity bill. They had a discussion about his mother being responsible for the bills. He said he was not aware when his mother would be back. She took a pen out of her folder and wrote her name and telephone number on the envelope for his mother to ring her later.
The young man then went back into the house she thought to find an electricity bill. She yelled into the house “would you mind grabbing me a glass of water please”. He returned with a glass of water but did not have a bill in his hand. As she took the glass of water he grabbed her by her breasts and pulled her inside. She described this as “grabbing her by the breasts quite firmly” and pulling her through the front door so she was forced to step forward. She said she dropped the glass and heard it break.
Once she was inside the front door the man picked her up as if in a bear hug, turned her around and walked her backwards down the hallway to the bedroom. She said her feet were nearly off the ground; she could only barely touch with her tippy toes. As he was walking her through the house he pulled her left breast out of her shirt and bra and touched her nipple. Once they were in the bedroom he pushed her backwards onto the bed. She landed on the bed in a seated position so that her feet were touching the floor.
The next thing that happened was he leaned over her and put his arm across her chest as if to pin her down from shoulder to shoulder. She said he then proceeded to stick his hand up her skirt and rip a hole in her stockings. He was trying to kiss her on the mouth and moving from her mouth to her chest to her left nipple.
She said her stockings were in good condition when she put them on that day to start work as she had only just removed them from the package. He ripped through them, he pushed her panties to one side and started to penetrate her vagina with his fingers. He asked her if she liked it and she responded with a very loud “no”. She said the next thing that happened was he kneeled down between her legs and pulled her stockings and underwear down to her knees. She said she noticed at that point that his pants and underwear were down but she doesn’t recall when he did that. This exposed his penis which she described as semi-erect.
He then caught hold of his penis and tried to motion it towards her mouth by putting his other hand around the back of her head. He pulled her towards it and was saying “come on, come on”. She turned her head to one side and his penis came into contact with her face. She thought he was getting more and more frustrated because of the way he was saying “come on, come on”. She had been repeating over and over “this is a bad idea, just stop, no, this is a bad idea”.
After grabbing her head for about 30 seconds to a minute she said that he let go and then proceeded to lick her on the vagina. He was also squeezing her left nipple and she felt a sharp pain in the nipple area. She said he then pushed her backwards again and was trying to get his penis inside her vagina. She described him spitting on his hand and wiping saliva on her vagina before trying to insert his penis into her vagina. She said he was able to get his penis in only about an inch because her stockings were on, her knees were together and she was trying to straighten her legs out and using the leverage to create space between his body and hers. She said his penis was still semi-erect.
After his penis was removed from her vagina she said he proceeded to continue licking her vagina. He adopted a kneeling position between her legs, she was still on the bed with her legs hanging over. She realised she still had her phone in her hand and she sent a text message to her co-worker ML. She sent him two messages. The first said “help”. She then thought her co-worker may not understand what she meant and sent a second message that was “I’m being assaulted”. The accused asked her what she was doing and she said “nothing”. He went back to licking her vagina. Then her phone rang audibly and M was calling her. The accused told her not to answer the phone. She said OK but answered the phone. She said she kept it in her hand. She was trying to hide the numbers.
The next thing that happened was that she presumed the accused saw the phone counting down because he asked her what she was doing on the phone. He then backed up, jumped up and pulled his pants up and started to walk back into the lounge room. She followed him having tucked her breast back into her shirt. She said that as she was coming through to the lounge she adjusted her stockings but they were much lower than they should have been and her skirt was still pretty much above her knees. She pulled it down slightly but it wasn’t in the correct position.
She started to motion towards the door and then the man said, “where are you going”. She said “nowhere I am going out for a cigarette” and he said, “well you can’t go out looking like that” and told her to go to the bathroom and clean herself up. He led her to the bathroom. She splashed a bit of water on her face and further adjusted her stockings and her skirt. The man was in the kitchen. He appeared somewhat flustered. As she walked out the front door she noticed that ML had pulled up the driveway in the van.
She walked down the driveway towards the van as Mr L got out. He started to walk towards her. He asked her what happened. She said “this guy just tried to rape me” and Mr L said “what do you mean”. She replied “what part of “this guy just tried to rape me don’t you understand?” She said she was hysterical, crying and agitated. Mr L told her to get in the van and he approached the accused in the yard. She heard him ask the accused what happened but did not hear any response. She remembered thinking that the man was acting as if nothing had happened. Whilst Mr L was out of the van she made a phone call to TW one of her co-workers. Because she was hysterical she can’t remember what she said to Ms W. Mr L returned to the van. She saw Mr L on his telephone following which they went to the Sturt Police Station. On the drive to the Sturt Police Station she said she felt sick to her stomach and was still crying.
She said that when she arrived at the house in Adelaide Terrace her clothes were neat and her stockings were pristine because she had only put them on that day. When she left her shirt was bunched up, her skirt was pulled up and her stockings were sagging in the middle and there was a hole just below the crutch area. She described the difference between the way she was dressed when she arrived at the house and afterwards by reference to the photographs taken by the police.
She says that she did not consent to any of the things happening in the bedroom continually saying “no”, “stop”, “this is not a good idea”. She was pushing him away as he was trying to put his penis inside her.
In cross-examination it was suggested to her that just after she got out of the van she sat down on the grass verge of Adelaide Terrace. She said she did not. She said she went to another house first. She was then asked as follows:[4]
QMaybe this will jog your memory. There is a grass verge on Adelaide Terrace and there are trees and I suggest that you sat down on the grass in the shade, possibly to have a cigarette. I am not saying that for sure, but that might have been what you were doing.
AAs I left the first house, I did have a seat on the grass and I had a cigarette, and then I received a phone call from Telstra, which I got off the phone as I was walking towards 29 up the driveway.
[4] Transcript p101
She was then asked about the time frame[5]
[5] Transcript p101 line 37
QYou said earlier that you commenced your sales work at about 12:40
AGive or take. I am not exactly sure of the time.
Q12:40 seems to be a fairly precise time. It is not sort of getting onto 1 or a bit after half past. Is there any reason why you picked 12:40
AI was just thinking more like somewhere getting near to 12 whether its quarter to 12, ten to 12, 11 or 12:40 sorry rather sorry muddled me up now. Quarter to 1, 12:40 or 10 to 1.
QYou thought you spent approximately 30 minutes in the first house.
AApproximately.
QSo that brings us to about 10 past 1 or thereabouts when you are sitting down having a cigarette roughly.
APossibly.
QIf you arrive roughly around 12:40 you have been in the first house for half an hour.
AI could have been at the first house for 20 minutes.
QAround 1 maybe after.
APardon
QAround 1 maybe after was when you got –
AOr maybe prior.
The complainant was asked about the cars shown in photographs exhibit P1. She recalled seeing the car with its doors open but in a different position. That is the car the accused was washing. She did not recall seeing the white car.
She said that the man she spoke to had an accent but spoke well enough for her to understand him. She recalled him saying that he had been in Australia for 6 years. She distinctly remembered him telling her that he was from Iraq rather than having been born in Pakistan. It was put to her that she complained about the heat saying “its fucking hot”. She said she would not have used that type of language in a work setting. She said it’s possible she may have said “it’s hot, isn’t it” or something like that to open up the conversation.
The accused’s version of events was put to the complainant namely that he invited her to step out of the heat into the lounge, that they sat on the lounge and that she initiated sexual activity. The complainant denied that version of events. It was put to her that her version of the glass falling to the ground and breaking as she was dragged into the house was a recent invention. She denied that this was the case although she agreed that it was only mentioned in the latest statement that she provided to police dated 17 January 2014. She agreed that it was not in the first detailed statement provided to police on 2 November but said she did recall telling at least one of the police officers about the glass on 30 October 2012. She spoke to many police officers at the Sturt Police station that day and can’t remember who the officer was. She also recalled mentioning it to a police office when two police officers came to her house to collect her husband’s DNA. She believes that she has mentioned it on several occasions but does not know whether it was ever formally recorded or not. She agreed that she did not tell Dr Sandercock at the Women & Children’s Hospital about the glass.
It was put to her that when she reviewed her statements she realised that there had to be some explanation of the glass so she made up the fact that the glass smashed. She denied this. It was put to her that she brought the glass of water into the house and continued drinking it until it was finished and then she gave it to the accused who took it away and put it in the kitchen. She denied this.
She was then cross-examined about another aspect of the history she gave to Dr Sandercock concerning the manner in which she entered the house. Specifically she was asked as follows:[6]
[6] Transcript p120-121
QTell me whether this is correct, or a correct rendition of what you said to her ‘The man said “Hold on, I’ll get you the bill”. The complainant asked for a glass of water, he got the glass of water and when the complainant went to take it, he grabbed her hands and dragged her inside’ and then you went on to give a further explanation of what happened after that.
AIt sounds correct although I don’t recall him grabbing my hands because he grabbed me by the breasts.
QIn reality you couldn’t have said that, could you.
AThat wouldn’t have made any sense.
QNo, it’s on the same day as the incident you complained of.
AThat’s right.
QSimply, I mean, you would tell the court ‘It just can’t be right that I said to the doctor “He came out with the water and grabbed me by the hands”’. You couldn’t have said that, is that what you evidence is.
AI had a phone in one hand and a glass in the other hand.
QI’m talking about what you said. I’m not asking you about what actually happened.
AI’m not saying it was not possible I said it that way. I was in a lot of shock and I had been dealing with police officers and rape crisis nurses and doctors and I had been – we had been – this had been going six, seven hours of this. I’m not saying it couldn’t have been said that way mistakenly, what I am saying is that wasn’t what happened.
She then gave evidence that the doctor noted a mark on the side of her left breast area under her armpit. The complainant was cross-examined quite extensively on this topic but maintained that she had been grabbed by the breasts, not the hands. She had no recollection of telling the doctor that she was grabbed by the hands. She accepted that she might have told the doctor that she was grabbed and pulled by the hands but that it would not have been right.
She was asked about the fact that she wrote her personal mobile telephone number rather than a work number. She gave an explanation that she had just got a new phone that was on credit and the other was on a plan. The number she left was the one on the plan, not the one on credit. She said the reason she left her personal number was because once the credit ran out she would throw the other phone away.
The statement that she gave to Constable Napper on 29 November 2012 about the telephone was put to her as follows:-[7]
[7][7] Transcript p130, line 30 – p131, line 12
QIs this what you said to Constable Napper ‘I wrote my phone number and name on the envelope, it could have either been my personal number - ‘ and you give a number ‘- or my work number’, and you give a number. ‘If I didn’t have my work phone with me, I would have given him my personal one’; is that correct.
AThat’s correct.
QThat’s what you said.
AThat’s correct.
QYou didn’t say anything to Constable Napper about credit plans and phone being out of plan.
ANo, but that is the reason that I have two phones and that’s the reason that I wouldn’t have had it with me.
QAre you sure it wasn’t the case, witness, that you left your personal number because you were hoping to have personal contact with this young man.
AI’m married and I would have no interest in someone other than my husband. I came to Australia to be with my husband, not to fraternise with anyone else.
QDo I take that as a no.
AThat’s a no.
I note in passing that the phone number that the complainant wrote on the envelope was the telephone that she had in her possession that day.
The complainant was cross-examined about the physical process that occurred as she says she was dragged through the house. She was asked why she did not resist, it was put to her that her legs were free to kick around. She said she was not in any position to fight back, he was a lot larger than she was and she could not only have been assaulted she could have been hurt seriously. She said that she did not yell out because no-one was outside to come and rescue her and she was concerned about being hurt.
She was asked why she didn’t ring 000 and scream ‘help’. She said she didn’t know what 000 was, she felt that sending text messages was a much likelier way of her getting out of the situation she was in.
She was cross-examined about the manner in which she was holding the telephone at the time that ML rang her. It was put to her that she had given a previously inconsistent statement to Senior Constable Gooch concerning this[8]
[8] Transcript p141, line 38 – p142, line 18
QAnd you told Senior Constable Gooch about the phone ringing and you seeing that it was M on the line.
AThat’s correct
QAnd you told Senior Constable Gooch that he said ‘don’t answer it’ and you said ‘Okay, I won’t’.
AThat’s correct.
QYou went on to say to Senior Constable Gooch – and I quote you, please tell me whether this is correct or not – ‘But I hit the answer button and he went back to crouching and licking my vagina. After answering the phone I put it facedown on the bed next to me, still holding it’.
AAs I said, when I gave that statement it was two days after the incident, we are now talking 14 months later, so if I said that on the day I’m sure I must have said that, but I can’t remember it today.
QI’m just wondering because you said the phone was facedown on the bed, yet you said he could see it clocking.
AIt must have been turned over at some point.
Later in the same passage of cross-examination it was put to her:[9]
[9] Transcript p143, line 1 - 15
QDid you go on to tell Senior Constable Gooch this, and I quote you ‘A few seconds later he looked back up at me and saw the phone in my hand, he could see that it had been counting, and must have worked out it had been answered’.
AThat’s correct.
QWell how would the phone come to have been face down, you wanted to hide it from him.
AThat’s correct.
QWhy would it have suddenly and miraculously turned face up.
AI have absolutely no answer to that question.
QMight be because it’s a lie.
AIt’s not a lie, it’s absolutely 100 percent correct.
Later she was asked why she didn’t call out to M for help when he was on the phone she said that it was because she had sent a text message. She was trying not to draw attention to the fact that the phone was in her hand and she didn’t want things to escalate and become violent. She was concerned that had she yelled out she could have been hurt severely before M got there.
She was also cross-examined about further aspects of her statement to Senior Constable Gooch on 2 November 2012 concerning the events immediately after the telephone call. It was put to her as follows:[10]
QYou then went on to say ‘He immediately stopped doing what he was doing and jumped up off the floor and pulled his pants up. I jumped too, and pushed him out of the way and tried to get out’.
AI don’t remember whether I pushed him or not. I know that he jumped up and I went the same direction he went and asked me ‘Where are you going?’, I said ‘Nowhere, I’m going for a cigarette’, he said ‘You’re not going outside looking like that’.
QI’m asking you whether the passage I just cited was what you said to Senior Constable Gooch, namely –
AAs I said –
QExcuse me, I haven’t finished my question. Saying ‘He immediately stopped what he was doing and jumped off the floor and pulled his pants up. I jumped too – I jumped up too and pushed him out of the way and tried to get out’. Is that what you said to Senior Constable Gooch.
AAs I stated before, that statement was given to Constable Gooch two days after the incident. We are now 14 month later, so if I said that to her, if that’s what you’ve got written I said to her, I can’t recall exactly word for word what I said to her, I can only recall what I remember, and my memory is obviously today not as clear as it was on 2 November.
[10] Transcript p146, line 30 – p147, line 16
There was further cross-examination on this topic. She was later asked:[11]
QI’ll just continue with this question for the moment, for a minute. Can I attempt to focus you on the nature of the question. I’m not asking you what your memory is now of what happened.
AOkay.
QI’m confining my question solely to what was or was not said to Senior Constable Gooch back on 2 November. Okay. So I’ve asked you whether you told Constable Gooch that you jumped up too and pushed him out of the way and tried to get out. That’s the passage that I’m interested in. I want only to know whether you agree that that’s what you said to Senior Constable Gooch.
AWhat I said is if it’s in the statement and I said it to the officer – obviously if it’s in the statement I said it and if it was said that day two days later it’s likely that that’s the way it happened because I would have had a clearer memory then than I would have 13, 14 months later.
QI understand you to say if it’s in there it’s true.
AThat’s correct.
[11] Transcript p151, lines 1 - 22
The complainant was then cross-examined about the sequence of events following her exit from the bedroom. She adjusted her clothes, she said on two occasions once in the lounge room and then in the bathroom. It was suggested to her that the photograph the police took[12] was exactly as she appeared when she first spoke to the accused. She denied this. She was asked how her work shirt became unbuttoned. She said she had no idea, she assumed it occurred when he pulled her breast out. She agreed that he did not carefully undo her buttons and that it was likely that if he undid her shirt he would have done so by pulling it open. She agreed the buttons were all intact but said they were big button holes and smaller buttons, the buttons could have come out.
[12] Exhibit P1, photograph 26
As part of the accused’s case it was put to the complainant that the accused made three attempts to telephone his mother to find out whether she was coming home. She said that she was not aware of those calls. She said he might have called his mother when he was in the house and she was outside but he did not make any calls in her presence. It was suggested to her that three calls were made in her presence; calls at 1:48, 1:49 and 1:50 pm. She said that she would not have not been there anymore as M arrived literally two minutes after he called her at 1:44 pm.
In re-examination the accused was asked about the evidence she gave about receiving a telephone call from Telstra and that she got off the phone as she was walking up towards the accused’s house. She identified the phone call from Telstra on Exhibit P3, photograph 3 and indicated that the time was 1:27pm. She said that would have been the time as she was walking up the driveway.
Senior Constable Peter Milde
Senior Constable Milde is a crime scene examiner at SAPOL. He is trained in taking photographs, collection and preservation of exhibits and fingerprint testing.
On 30 October 2012 he was tasked to premises at Saint Marys. He arrived at 29 Adelaide Terrace at approximately 3.45pm in company with Brevet Sgt Hill who was a supervisor at that time. Senior Constable Buck and members of Sturt CIB were also present. After a brief conversation with Senior Constable Buck he proceeded to photograph the scene. His photographs were tendered as a bundle of 27 photographs.[13] He gave evidence explaining those photographs. He left the premises at approximately 4.30 pm and returned to the Sturt Police Station where he took two photos of the complainant at approximately 4.45pm. They are photographs 26 and 27 in exhibit P1. He had no further involvement in the matter.
[13] Exhibit P1
In cross-examination Senior Constable Milde said that he may have noticed broken glass at the front door if it was present. He said that exhibit P1 photograph 19 is a general picture of the laundry layout and that photo 21 is a close up of two plastic dispensers. Photo 21 was taken at the direction of Detective Buck. He recalls Buck said the victim washed her hands at the basin. The clothing worn by the complainant in photographs 26 and 27 is how the clothing appeared when he first saw her. She was not asked to adjust it.
Lyndon Keith Lawson
Brevet Sergeant Lawson is also a crime scene officer. He took photos of two phones on 30 October 2012 at the Sturt Police Station at about 4:10pm. They were tendered as Exhibit P3 bundle of 7 photographs. Photos 1, 2 and 3 were from the complainant’s phone and photos 4 to 7 were from ML’s phone.
On 14 May 2013 he was directed to take a series of photographs of items of clothing. These were tendered as Exhibit P4.
In cross-examination Detective Lawson said that each of the articles had to be removed from exhibit packaging. He did not examine them. He did not observe the sturdiness of the stockings apart from laying them out to photograph them.
He said there did not appear to be any missing buttons from the shirt. He made no note of any damage to the garment. If there was damage he would have noted it. Likewise he did not note any damage to other items of clothing.
Dr Karen Sandercock
Dr Sandercock has worked at Yarrow Place since 2004. At 6.55 pm on 30 October 2012 she conducted an examination of the complainant. Dr Sandercock understood the purpose of the examination was to collect evidence in relation to an assault that had been reported to have taken place approximately 6 hours earlier.
Dr Sandercock said she did not take a detailed and full statement from a patient about what had happened. Rather she asked questions of the complainant to ascertain what sort of swabs were to be taken. She did not check the history with the accused for accuracy. She noted the complainant had tears that welled up in her eyes at times and appeared sad.
On general examination, Dr Sandercock observed injuries including abrasions and bruising. There were abrasions on the right wrist and left inner thigh, bruising on nipple and the right knee and a bruise on the left inner thigh. Dr Sandercock said it was difficult to estimate the force required to cause bruising. It varies from person to person, the site of the trauma, what is beneath the skin etc. Bruises generally don’t have specific features that allow determination of what caused the bruise.
Dr Sandercock said in her view the abrasion on the left inner thigh was 24-72 hours old because of the surrounding redness that presented upon examination. She couldn’t form any opinion about the age of the bruise on the right knee. The abrasion on the right wrist was an older injury as it had a scab on it.
She said there were two areas of interest on the left breast. One area was a pale redness at the edge of the areola that may have been a bruise but she wasn’t sure. She also saw some pinpoint red bruises on the nipple surface that she called petechial bruises. They are pinpoint bruises, when the surface capillaries are fractured or broken and commonly occur from suction or force on the skin but can also occur from trauma. In her experience petechial bruises resolve in about a week.
She then conducted a genital examination. The only injury was petechial bruising on the vaginal wall. There is data to show these bruises heal very quickly. The bruising was consistent with fingers penetrating the vagina but the location of the injury means it was unlikely to have been caused by a penis inserted about an inch into the vagina.
Dr Sandercock then took forensic samples using a sexual assault investigation kit. She took two swabs from the labial area for semen, a swab and smear for semen in the low and high vaginal area, a buccal swab for DNA analysis, swabs for contact DNA, skin swabs for saliva from left breast, the right cheek and fingernail swabs. She collected 7 items of clothing and passed those items to a police officer at the conclusion of the examination.
The examination concluded at 8.10 pm.
ML
Mr L was a team leader for ASAP in South Australia. His role involved him participating in door-to-door sales. He met the complainant through work. On 30 October 2012, sales were to be conducted in Saint Marys. He said 5 – 8 people, possibly 9 were to work in that area. He transported the staff in a van including TW, himself, the complainant. He believes they had two extra people R and D. While everyone got lunch at McDonalds at the bottom of Flagstaff Hill he took R and D home to their houses.
They left the office in South Terrace Adelaide at approximately 10:30 – 11:00 am to go to Saint Marys. He got D home around 11:45 – 12:00 noon. They got to “turf”, that is Saint Marys, around 12:00 noon. He dropped them all off separately. He was also scheduled to participate in door-to-door knocking.
He prepared the plan exhibit P5 and the coloured highlighting shows as each individual’s turf. He is not 100% sure where he dropped the complainant that day. He thinks she was dropped off closer to the end of the group. He then went and commenced door knocking. He spoke to an older man who was American. He is not sure which street he was knocking possibly it was Doreen Street. He had a missed call. He then went into his messages. He read the messages from the complainant. He then left to try and find where the complainant was. He rang her back but he only heard muffled sounds. He didn’t speak to her. It was only a 3 second phone call and he terminated the call.
He drove through her turf slowly and he saw her walking towards the van on Adelaide Terrace. He thinks he was outside number 27. She appeared tattered, quite flustered and irate. She looked a lot messier than when he dropped her off. Her top was lower and her skirt looked like it had been pulled or twisted around.
When she first got to the van, he asked ‘what’s up’. She then said ‘I’ve just been fucking raped’. He asked her what she meant and she said ‘there’s not too many other ways of putting that, I’ve been fucking raped’. He asked what had “fully happened”. She said ‘that guy out there, he fucking raped me’. He told her to sit in the car because he was going to talk to the man. He walked up to the house. The man had a bucket and he was just washing his car. He was on the left hand side of the car. The car was facing towards his house. They had a good conversation. The man didn’t seem like anything had happened.
When the complainant told him she had been raped she appeared flustered, irate, very “rushy” with her words, like adrenalin kicked in. She broke down and was sobbing. She was heavily sobbing and she whimpered a bit.
When he got back in the van he tried to call his manager, J M but he couldn’t get on to him so he called the next in charge, D H who told him to high tail it to the nearest police station. On that drive, the complainant kept saying sorry a lot. He had to tell her to calm down on a number of occasions. When they arrived at the police station, a police officer photographed his mobile phone showing the messages from the complainant and the calls made by him.
Mark Andrew Webster
The results of Mr Webster’s examination of the swabs taken by Dr Sandercock are contained in Exhibit P6. Given that it is not contentious that some sexual activity took place between the complainant and the accused these results are of limited relevance. They do not assist with contentious issues such as the type of activity and the issue of consent.
TW
Ms W was a colleague of the complainant’s. She said she had a phone call for approximately 3 minutes with the complainant. The complainant sounded distressed, she was crying, very emotional and hyperventilating. TW kept asking her to clarify things. The complainant said that a customer had pulled her into the house and that he had ripped her shirt, ripped her stockings and forced himself upon her.
In cross-examination Ms W said she was quite clear that the complainant said the accused ripped the buttons off her shirt. She said she worked on the same team as the complainant and that she gained a clear impression of her character. She said she would have reservations about believing the complainant on her oath. No explanation was given for her reservations.
In re-examination she said she commenced working with the company in early October. She said she spent time with the complainant on probably 3 social occasions outside of work. She has not spent time with the complainant since she left work.
Matthew David Buck
Detective Buck was on duty on 30 Oct 2012 with Detective Heighway. They were tasked to 29 Adelaide Terrace Saint Marys. They arrived there at 2:58pm. They saw the accused washing his car in the front yard. A small child was also present at the house when Detective Buck attended to conduct a search of the premises.
Detective Sergeant Quinn also attended as did crime scene investigators Milde and Pill who took photographs at his direction. Detective Quinn searched part of the house and located an envelope with some handwriting on it. He was shown exhibit P1 photo 3. He can’t recall the white car being there when he attended but the car with the doors open was there when he arrived at the house.
Exhibit P1, photos 12 and 13 shows the envelope that he located on the bench. The kitchen had dishes and was cluttered but generally it was quite tidy. He recalls that there were dishes in the sink. The bedroom shown in P1, photo 23 indicates how the bedroom appeared when he arrived. He recalls that bedroom 2 was messy. He didn’t search garbage bins. He observed bills around the house when searching. He doesn’t think he located the AGL bill shown in exhibit P1 photo 15. He didn’t observe any electricity bills during the search.
The envelope in P1 photos 12 and 13 was seized and conveyed to Sturt police station. While he was at the scene, officers Napper and Marsland arrived and arrested the accused in his presence. No other items were seized from the premises. He issued a field receipt to the accused’s mother. She arrived when they were at the premises. It was some time prior to 4:30 pm but he is unsure at precisely what time.
In cross-examination he said he examined all areas of the house. He didn’t see any signs of struggle or disturbance. He didn’t have great detail as to what was alleged to have occurred when he attended. He questioned the accused on the day. The accused pointed out places and items that he said the complainant touched. He recalled the accused asked him to investigate certain items in the house. Detective Buck did not direct Senior Constable Milde to fingerprint items that had been pointed out or to take tape lifts off the couch. He did not direct any tape lifts to be taken from the complainant’s clothing to test for fibres from the couch.
Detective Buck entered and left the house from the door as shown in P1, photo 5. He didn’t observe any broken glass near the area by the front door. He didn’t observe any broken glass anywhere.
In re-examination he said fingerprints weren’t taken because the moisture and washing liquid would render no evidence. The tape lifts just weren’t done.
Before closing the case the prosecutor tendered to following items by consent:
P7 – Agreed Facts concerning choice of evidence issues.
P 8 – Stockings worn by complainant.
P9 – Shirt worn by complainant.Defence Case
The accused gave evidence on oath. He was not obliged to do so. In assessing his evidence and the weight to be given to it I have approached my task in exactly the same way as I have with the other witnesses including the defence witnesses. However I have also taken into account the fact that English is not his first language. It appears that he can sufficiently speak English to perform normal tasks but is unlikely to have been able to cope with the added stresses imposed as a witness in a court and accordingly he required the assistance of an interpreter. It is more difficult to assess the demeanour of a witness when evidence is given through an interpreter but I consider that I had ample opportunity to assess the accused in this matter. It was also clear to me that the accused was able to communicate properly with and through his interpreter.
The accused denies the allegations that the complainant has made.
He was born in Pakistan and lived there until he was twelve. His father died when he was young. At the age of twelve his mother married another person. They had a son and daughter. His brother is now aged six and sister eight. The family moved to Afghanistan but did not have a happy time there. They moved to Australia as a family but his stepfather did not come. His stepfather was the reason why they sought refuge in Australia.
They arrived in Australia on 31 March 2010. He has lived in Adelaide with his mother and step siblings since. He attended school here and completed year eleven. He left midway through year twelve because the family was struggling financially so he left school to work. He has worked a lot whilst in Australia.
They originally lived at Maylands. They came to know some of their neighbours very well including MF and KJ. The family then moved to St Mary’s and had lived there for about a year by October 2012.
He was home with his younger brother when a lady came to his house selling electricity contracts. He now knows her as the complainant. His mother had gone to the city. His sister was at school. His brother was sick and had a high temperature so had been kept home.
At the time the woman arrived he was outside washing his car. His younger brother was outside with him. He identified his car as the Holden Commodore on photograph 3 Exhibit P1. The white car is an old car that his mother bought. That white car had always been there because it wouldn’t start. He said that his car was parked on the grass when he washed it rather than in position shown in the photograph. He said he had washed the first part of his car when the complainant arrived. He washed the second half when she left and then reversed it back into the position that is seen in photograph 5 of Exhibit P1.
He said he saw the complainant get out of the van and possibly adjust her clothes and then the van left. She then went and sat on the grass area. She had a cigarette, fixed her lower clothing a bit and then started walking towards his house. She smiled at him, he smiled back and she then approached him. She said “Hi, hello, how are you my name is SM and I am from the energy company”. He could not recall the name of the company but she said she was from an electricity company to discuss the reducing the cost of electricity. She said the company she worked for was cheaper. He was not expecting a sales person but a few weeks earlier a sales person from another company had attended. They have used AGL since arriving in Australia and get a discount due to his mother’s pension. He said he explained this to the complainant. They were both standing outside at this stage.
He said she was saying things that a normal person would not say and he had not experienced in the time he had been in Australia. She said “today is very fucking hot weather”. He said “how can you say things like that in front of my brother”. He said she asked for a glass of water so he went inside and provided her with a glass water outside the door. She took the glass and drank a bit. She asked him who pays the electricity bills and he said his mother. She asked whether his mother was home and he said she wasn’t. She then asked if he could bring a bill to her so she could look at it. He went inside to find a bill in his mother’s room. He did not know exactly where she kept them and couldn’t find them. He found a bill in an envelope and bought it outside but it turned out to be a gas bill not an electricity bill.
Just before he went to find the bill he had asked the complainant if she wanted to stand inside out of the sun. When he returned with the gas bill from his mother’s room she was sitting on the couch. He had not invited her to sit. He described where she was sitting on the couch by reference to Exhibit P1. He showed her the bill and when she opened it she laughed and said “this is the gas bill not the electricity bill you have bought the wrong one out”. He said he would go and find the electricity bill. He couldn’t find it.
He looked at the photographs taken of the complainant at the police station.[14] He said the complainant was wearing those clothes when she attended his house. When she came inside the upper buttons of her shirt were open maybe she had one more done up than shown in the photograph but her sleeves were pushed up. He said the black singlet was showing under her shirt. Her breasts were as visible when she arrived at his house as they were in the photograph. He said her skirt was just a bit lower than it appears in photograph 26.
[14] Exhibit P1 photograph 26 and 27
He was unsuccessful in finding the bill and so he came back and sat on the couch. After the complainant laughed about getting the wrong bill she asked him questions such as are you married, do you have a girlfriend, have you been on a date, how old he was. He said he told her the truth that he was born in 1993. He did not tell her his age but he was nineteen at the time. He took the glass off her and put it in the kitchen.
He said she had a folder with some papers and a mobile phone when she came in. She put the folder down next to her on the couch and she was holding the mobile phone. She was always on the phone but he did not know what she was doing with it. He wasn’t sure if she was texting or checking things. He found it rude to ask her what she was doing. They had some more conversation then she received a phone call. She was saying bad things on the phone. She walked up and down whilst having a phone conversation and was saying things like “this job is fucking bullshit; I hate this job.”
After the telephone conversation she returned to the couch and sat down next to him. She then put her left hand on his right thigh. He became nervous and asked why are you doing this. She said its okay and starting rubbing his leg. Once she said it was okay he placed his right hand on his leg. He said it was not part of his culture to touch strangers. He touched her because she started it first and being a boy he thought how come she is putting her hand on my thigh. He had not had a sexual relationship before and specifically he had not had penile vaginal sexual intercourse before this day because it was part of his culture not to have sex before marriage. He started to feel a bit horny and because of that he was shaking. The woman then used the bathroom and was in the toilet for between five to eight minutes. After he heard the toilet flush and she opened the door, she came into the laundry. He told her that the tap didn’t work but he offered for her to wash her hands in the kitchen sink. She took some soap from the dispensers in the laundry and went into the kitchen. He said he would remove the dishes from the sink but she did not wait. She washed her hands over the dishes, which he found dirty.
He said that he told the police that she used the toilet and the soap and that she turned the tap to wash her hands in the kitchen. He also told them that he only washed the inside of the glass that she used and that she sat on the couch. They did not test any of these things.
After she had washed her hands she went back into the lounge and sat in the middle of the couch. He sat down as well. She asked him when his mum would return home. He said he could call his mother and see when she would be back and she could wait if she liked. He said that there was no more touching between them but the complainant was touching her chest and her clothing. She then asked where his bedroom was. He said he would show her if she wanted. He showed his room which was messy. She didn’t go into his bedroom. He then showed her his mother’s bedroom and explained that she sleeps in there with his two siblings. The complainant went inside the bedroom without him asking her and she sat on the bed without him pushing or forcing her. She undid her shirt buttons and then she lay on the bed. At that time he was at a distance from the bed. Once she laid back down on the bed, he didn’t do anything but she pulled her skirt a bit lower. She lowered her stockings and he lowered them a bit as well and then he started fingering her. She told him to spit on his fingers and then to finger her again. He did so. He was shaking and nervous and didn’t know what he was doing. His penis was not erect. He was fully dressed at this time. There was one stage when he pulled his shorts to his knees.
Aspects of his evidence also struck me as having been constructed in the witness box. For example, the complainant was cross-examined about the accused making telephone calls to his mother whilst in her company. She denied this. Specific times for three calls were put to her. The complainant said she was not in the house at the time these calls were made. Her evidence was clearly correct on the basis of the times of various calls made on her phone and Mr L’s phone. Nothing further came of that topic in submissions. What was not put to her was that she received a phone call, other than the call from Mr L, whilst she was in the accused’s company. That is the phone call that the accused spoke of where she received a phone call in his lounge room, commenced pacing and using bad language. Counsel for the accused was experienced and competent. Given the other matters put to her about phone calls, bad language and the events in the lounge room I do not consider it likely that counsel for the accused would have failed to put that phone call to the complainant had the accused raised it in his instructions. The matter is significant because of the timing. On the accused’s version of events there was a relatively lengthy interchange between the parties in the lounge room before they entered the bedroom for consensual sexual activity. The complainant’s evidence that she received a call from Telstra at 1.27 pm which she terminated as she approached the accused’s house does not sit very comfortably with that scenario.
The complainant’s evidence about the call did not form part of her evidence-in-chief. Rather, she was reminded during cross-examination that she had a cigarette under a tree near the accused’s house. Her demeanour when giving this evidence indicated that her memory was genuinely revived by the question. As part of her answer she spontaneously volunteered that she also received a call from Telstra whilst under the tree. She later identified that call on the photograph of her phone[21] as occurring at 1.27pm. The next activity on her phone is at 1.41pm when she sent the text messages to ML. Mr L’s call to her was at 1.44pm. On any version of the evidence she was in the bedroom by 1.41pm and the interaction between the complainant and the accused ceased shortly after the call from Mr L at 1.44pm.
[21] Exhibit P3; photograph 3.
If the complainant’s evidence about the Telstra call is accepted, it took less than 14 minutes from the time she approached the accused’s driveway to the time she sent the texts in the bedroom. This timeframe is consistent with the events as described by the complainant. It is not congruent with the events described by the accused because it seems improbable to say the least that two complete strangers could get from a discussion about changing electricity providers to consensual sexual activity in less than 14 minutes. More tellingly it does not fit with the number of activities and the time frame for each that the accused described.
On the accused’s evidence there was a discussion on the doorstep, he got a glass of water, he spent time searching for an electricity bill, they both sat on the couch for a period of time where there was a discussion about various topics leading to some physical touching; the complainant used the toilet, she was in the toilet for between 5 and 8 minutes; she then got soap from the laundry and was shown to the kitchen to wash her hands; there was more interaction on the couch before the accused showed her first his bedroom and then his mother’s and then consensual sexual activity took place. This must have taken more than 14 minutes. I consider it likely that the accused realised this and accordingly indicated for the first time in the witness box that the complainant took a call in his lounge room.
Another topic on which it appeared to me that the accused made up his evidence in the witness box related to his brother coming into the lounge and seeing them touching. This was again not put to the complainant – a surprising omission if it was something the accused had provided instructions on.
Another aspect of the accused’s evidence that causes me concern is his assertion that the complainant was happy and smiling as she left the house and indeed was smiling as she got to the van. This is in stark contrast to the evidence of the complainant, Mr L and to a lesser extent Ms W.
The accused’s evidence about the glass is also curious. He says that he washed the glass that was used by the complainant and placed it in the cupboard later inviting the police to fingerprint it. He did not use soap nor did he wash the outside of the glass. Further, it is noteworthy that there were a large number of unwashed dishes in and around the sink. The accused’s evidence about why he singled this glass out for washing and why he washed it in the cursory manner he described was not convincing.
I was also unimpressed with the accused’s evidence about his height. The accused appeared to seek to undermine the complainant’s evidence about their relative sizes. As I saw him in court he was taller and heavier than the complainant but I note that these events took place in October 2012 when the accused was 19. His evidence was that he was 73-75 kilograms at that time. Accordingly he was heavier than the complainant at the time. He suggested in evidence in chief that he was currently 153cm tall and likely shorter in 2012. This suggests he was shorter than the complainant in October 2012. His evidence became less clear in cross-examination. When it was put to him that he was about 173 cm in October 2012 he did not agree but said that he was measured by a Doctor in 2011 and was then 153cm. He said he had not checked his height after that date and was not “a hundred percent sure whether I’m taller than 153cm or not”.[22] His evidence on this topic was unhelpful and unconvincing.
[22] Transcript page 361
Finally, the accused’s evidence about the sexual activity in the bedroom did not ring true. He described it as being instigated by the complainant lying on his mother’s bed, lowering her skirt and asking him to put his fingers in her vagina. Whilst he was doing this at her request, far from offering encouragement, comment or advice she was using her mobile phone. He did this for 5 to 10 minutes and then she requested him to spit on his fingers and do it again. The accused’s narration of this and the activities that he says followed this, even making allowance for difficulties of translation, embarrassment and the like, did not sound plausible.
I do not accept the accused’s evidence. I do not accept as a reasonable possibility that the complainant instigated and directed the sexual activity between them in the manner he described. I do not accept as a reasonable hypothesis that she consented to the sexual activities that took place.
Conclusion
As I have previously indicated, I accept the complainant’s evidence. I accept it as truthful and reliable in relation to each count on the information. I do not accept as a reasonable possibility that the complainant voluntarily entered the accused’s house or that she instigated, directed and consented to the sexual activity in the bedroom. Accordingly my findings on each count on the Information are as follows:
Count 1
I find the accused grabbed the complainant on the breasts as alleged. This constitutes a deliberate, unlawful application of force to the complainant without her consent. I am further satisfied that the assault was accompanied by circumstances of indecency.
Count 2
There is no dispute that the accused inserted his fingers into the complainant’s vagina. I accept the complainant’s evidence that she did not consent to this and that she communicated this to the accused who must have known in the circumstances that she did not consent.
Count 3
I find that the accused performed cunnilingus on the complainant knowing that she was not consenting.
Count 4
I find that the accused placed his penis in the complainant’s vagina knowing that she was not consenting.
A verdict of guilty on each count will be recorded.
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