R v M

[2010] QDC 361

DISTRICT COURT OF QUEENSLAND

CITATION:	R v M [2010] QDC 361
PARTIES:	R v M (Defendant)
FILE NO:	DIS 3527/10(7)
DIVISION:	Criminal
PROCEEDING:	Judge alone trial
ORIGINATING  COURT:	District Court, Beenleigh
DELIVERED ON:	September 16, 2010
DELIVERED AT:	Beenleigh
HEARING	September 13-16, 2010
DATES:
JUDGE:	Koppenol DCJ
ORDER:	Verdict: not guilty
CATCHWORDS:	CRIMINAL PRACTICE - JUDGE ALONE TRIAL – one count of assault occasioning bodily harm, one count of sexual assault and two counts of rape – whether complainant a credible witness - whether proof beyond reasonable doubt established by Crown
Criminal Code, ss 339(1), 352(1)(a), 349, 614, 615, 615B, 615C(3)
AK v Western Australia (2008) 232 CLR 438, applied
COUNSEL:	B. Power for the Crown R. Clutterbuck for the Defence
SOLICITORS:	Office of Director of Public Prosecutions for the Crown McMillan Legal for the Defence

1. The defendant is charged with one count of assault occasioning bodily harm, one count of sexual assault and two counts of rape, contrary to sections 339(1), 352(1)(a) and 349 of the Criminal Code (the Code). The events are alleged to have occurred in March 2005 at Loganholme.

2. The defendant pleaded not guilty. The trial was held before me, sitting without a jury. Another judge of the Court previously made a no jury order under sections 614 and 615 of the Code.

3. Pursuant to section 615B of the Code, I have applied, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury. As required by section 615C(3) of the Code, as explained by the High Court in AK v Western Australia (2008) 232 CLR 438, these are my reasons for decision which include the principles of law that I applied and the findings of fact on which I relied.

4. The prosecution’s case was that (1) on March 22, 2005 during an argument, the defendant pushed the complainant (his former de-facto wife) over a lounge and then stomped on her lower back and buttocks; (2) on March 28, 2005, he touched her, without her consent, on her breasts and groin when they were in bed together; and (3) later on March 28, 2005, he penetrated her vagina and anus with his penis, without her consent. The complainant gave evidence to that effect.

5. The defendant gave evidence at the trial. He said that (1) the complainant blocked his way in the hallway of their house and as he tried to squeeze past her in the confined space at that point, she overbalanced backwards and fell on her back onto the lounge in the sunken lounge room; (2) he did not touch her breasts and groin on that occasion; and (3) their vaginal and anal intercourse was consensual.

6. The complainant and the defendant lived together in a de-facto relationship for about 8 years until 2004, when their relationship cooled. Whilst they continued to have sex on occasions, it occurred only infrequently. The complainant and the defendant continued to live in the same house until November 2004 or March 2005 (the date is disputed), but they would each sometimes see other people on a sexual basis. That led to some tension between them. The complainant and the defendant also acquired considerable real property holdings over the years and the ending of their relationship necessitated a division of those holdings. The complainant commenced Supreme Court proceedings to effect such a division and that caused increased tension. Each of the parties also complained that, on occasions, one of them had been violent to the other. Indeed, domestic violence orders were obtained by each of them against the other.

7. The defendant called the police to their house on March 22, 2005 because he thought that the complainant was suicidal. That was later in the day when the events of count 1 are alleged to have occurred. She did not complain to the investigating police that the defendant had assaulted her earlier that day because, she said, she was more concerned about the suicide allegation and also did not regard the injuries which she suffered (multiple bruising) as sufficiently serious to justify doing so. Similarly, the complainant did not complain immediately (or indeed on the same day) to the police about the events of counts 2 and 3, although she did tell a friend “he raped me” and she told her doctor that the defendant sexually assaulted her.

8. The complainant went out socially on the night of March 27, 2005. When she returned home at about 2.00am on March 28, she found that the defendant had placed a heavy stool up against the inside of the front door. The defendant said that that was to warn him when the complainant arrived home because he was concerned that she might assault him while he was asleep in bed. The parties then argued about what the complainant had done that night. The complainant’s evidence was that the defendant would not leave her bed and followed her from room to room until they both went to sleep on the water bed in the main bedroom, before which the defendant touched her breasts and groin area without her consent. The defendant’s evidence was that he did not follow the complainant from room to room and did not touch her when they were in bed.

9. The next morning, the complainant said that the defendant came into the lounge room and manhandled her into their bedroom where he held her down and forcibly raped her both vaginally and anally. That was disputed by the defendant, who said that the complainant initiated their sexual relations the next morning when she was sitting in the lounge room as he came into the house after washing his car.

10. Various photographs of the parties (which showed some bruises on each of them) were tendered and detailed medical evidence was given. However, that evidence was equivocal as to whether the parties’ sexual activities were consensual or not and also as to how the events in count 1 may have occurred.

11. Ultimately then, this case turns upon my assessment of the credibility of the complainant and the defendant. Naturally, however, I would only be able to find the defendant guilty of one or more of the charges if I accepted the complainant’s version of events beyond reasonable doubt. That is so, even if I had doubts about the defendant’s credibility.

12. The complainant’s credibility was severely damaged in cross-examination. She admitted giving evidence in the Magistrates Court that anal intercourse was part of her sexual relationship with the defendant, only to deny that it was before me. She told her doctor in October 2004 that she and the defendant were starting a separation. She also gave evidence that they separated before March 2005. However, when confronted with an affidavit filed in the Supreme Court property proceedings in which she swore that she and the defendant separated in March 2005 (Exhibit 9, paragraph 5), she said that that was not her signature. The witnessing solicitor later gave evidence before me that she saw the complainant sign the affidavit. I accept that evidence and find that it is the complainant’s signature. The complainant also said that she did not know that solicitor’s surname, even though she had had some 45 telephone calls and 7 personal attendances with her. The complainant refused to accept that it was her signature on a number of other documents, including an Impact Capital financing document which detailed monies which she had borrowed for particular purposes which differed from the purposes about which she had relevantly sworn in a Supreme Court affidavit. She also said that the financial table on page 1 of the Impact Capital document (which described the purpose and monetary break-up of the borrowing) was blank when she signed it―if she signed it. I very much doubt that it would have been blank. The complainant also said that before she went out on the night of March 27-28, 2005, she put on a provocative strappy dress because she wanted to make the defendant jealous. That seems an odd thing to say if she no longer had feelings for the defendant and if they were no longer sleeping together―and in circumstances where the defendant gave evidence that he wanted their relationship to continue. The complainant said that in respect of count 1, that the defendant did not stomp on her wrists and ankles, whereas she told her doctor that he did. The complainant also gave evidence at an earlier trial of this matter that she and the defendant slept in the same bed when they were on holidays in Cairns in December 2004, but she told me that they stayed in separate rooms.

13. Unlike the complainant who gave her evidence in a rather confusing and at times unconvincing manner, the defendant gave evidence calmly and clearly. At times, he accepted that he could not remember or was unsure of certain things―but overall, I found him to be an impressive and convincing witness. He said that the complainant had a personality that “could turn on a dime” and that he and the complainant were happy on occasions and unhappy on others.

14. He sustained bruises and a bite mark on the morning of March 29, 2005 after he returned home having spent the night with a female friend. The complainant had become aware of that liaison and she and the defendant had a heated discussion and physical altercation when he arrived. The defendant accepted that he was often upset with the complainant and sometimes used coarse language when they were arguing. He also said that he was fearful of being assaulted by the complainant because of her erratic behaviour, her self-defence skills and his inability to physically overpower her. Whilst I accept that the complainant sometimes acted erratically and had some self-defence skills, I am not satisfied that the 6feet 6inches tall 97kg defendant would not have been able to physically overpower the 5feet 10inches 57kg complainant, if he had wanted to or had been forced to.

15. After reviewing all of the evidence, I was left with the distinct impression that to varying degrees, the parties’ actions and evidence in this matter have been affected by feelings of jealousy, frustration and anger―as well as deep anxiety about the ultimate disposition of their contested property litigation where a sum in the order of $1 million is in issue.

16. That said, however, given my concerns about the complainant’s credibility, I am unable to conclude beyond reasonable doubt that her version of events with respect to each count should be accepted. Her version might be correct, just as the defendant’s version might be correct. But they cannot both be correct. Accordingly, I am left with a reasonable doubt about each of the charges.

17. My verdicts in respect of each of counts 1, 2, 3 and 4 are not guilty. The defendant is discharged.