R v Marchesini - [2008] SADC 165

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MARCHESINI
Criminal Trial by Judge Alone
[2008] SADC 165
Reasons for the Verdicts of Her Honour Judge McIntyre
4 December 2008
CRIMINAL LAW - PARTICULAR OFFENCES
Accused charged with five counts of rape and five counts of unlawful sexual intercourse - trial by Judge Alone - Prasad application - verdict not guilty.
R v Prasad (1979) 23 SASR 161, applied.

R v MARCHESINI
[2008] SADC 165
Preliminary

Paolo Luigi Marchesini was charged before me sitting as a Judge alone upon his plea of not guilty to 5 counts of rape and 5 alternative counts of unlawful sexual intercourse. The alleged offences took place between 23 September 2007 and 30 September 2007 at Findon.
The charges and particulars were as follows:
Count 1 – Rape
Paolo Luigi Marchesini between 23^rd day of September 2007 and the 26^th day of September 2007 at Findon had sexual intercourse with S, R without her consent by inserting a finger into her vagina.
Count 2 – Unlawful Sexual Intercourse
Paolo Luigi Marchesini between 23^rd day of September 2007 and the 26^th day of September 2007 at Findon had sexual intercourse with S, R a person of the age of 15 years by inserting a finger into her vagina.
Count 3 – Rape
Paolo Luigi Marchesini on the 25^th day of September 2007 at Findon had vaginal sexual intercourse with S, R without her consent.
Count 4 - Unlawful Sexual Intercourse
Paolo Luigi Marchesini on the 25^th day of September 2007 at Findon had vaginal sexual intercourse with S, R a person of the age of 15 years.
Count 5 – Rape
Paolo Luigi Marchesini between the 25^th day of September 2007 and 29^th day of September 2007 at Findon had vaginal sexual intercourse with S, R without her consent.
Count 6 – Unlawful Sexual Intercourse
Paolo Luigi Marchesini between the 25^th day of September 2007 and 29^th day of September 2007 at Findon had vaginal sexual intercourse with S, R a person of the age of 15 years.
Count 7 – Rape
Paolo Luigi Marchesini between the 26^th day of September 2007 and 29^th day of September 2007 at Findon had vaginal sexual intercourse with S, R without her consent.
Count 8 – Unlawful Sexual Intercourse
Paolo Luigi Marchesini between the 26^th day of September 2007 and 29^th day of September 2007 at Findon had vaginal sexual intercourse with S, R a person of the age of 15 years.
Count 9 – Rape
Paolo Luigi Marchesini between the 27^th day of September 2007 and 30^th day of September 2007 at Findon had vaginal sexual intercourse with S, R without her consent.
Count 10 – Unlawful Sexual Intercourse
Paolo Luigi Marchesini between the 27^th day of September 2007 and 30^th day of September 2007 at Findon had vaginal sexual intercourse with S, R a person of the age of 15 years.
Counts 2, 4, 6, 8 and 10 were alternatives to counts 1, 3, 5, 7 and 9.
At the conclusion of the prosecution case counsel for the accused, Mr Richter, made an application that I make a finding of no case to answer in relation to counts 3, 5, 7 and 9. Those were the counts of rape relating to allegations of penile/vaginal sexual intercourse. Lack of consent is an essential element of the charge of rape. It was submitted that this element was not made out on the prosecution’s evidence taken at its highest. The prosecution conceded that, at least in respect of these charges, the complainant, Ms S, said that she did reluctantly agree to have sex with the accused. On the basis of the submissions made and my consideration of the evidence and case law I made a ruling of no case to answer in relation to counts 3, 5, 7 and 9 on the Information.
Mr Richter then made an application that I consider directing myself in accordance with the judgment in the Court of Criminal Appeal in R v Prasad (1979) 23 SASR 161 in relation to the balance of the counts on the Information namely counts 1, 2, 4, 6, 8 and 10.
Counsel made submissions. I reserved my decision. On the following morning, Tuesday 2 December 2008, I ruled as to each of counts 1, 2, 4, 6, 8 and 10 finding that, whilst there is evidence upon which the accused could lawfully be convicted, the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it. Accordingly on each count the verdict was not guilty.
These are the reasons for the ruling that I made on 2 December 2006.
Background
At the time of the offences the victim, S, R was 15 years of age having been born on 31 January 1992. She had known the accused for about 11 years. Her mother was married to his brother. She regarded the accused as her uncle.
On 10 September 2007 the victim signed a bail agreement in the Youth Court of South Australia that required her to live with the accused’s mother, Maxine Marchesini, at 6/3 Noblet Street Findon. This was also the accused’s residence.
The unit in which these events took place was a two bedroom unit. The accused had one bedroom. His mother had the other. The victim slept on a futon in the lounge room. The prosecution alleged that late in the evening on Monday 24 September 2007 the victim was lying on the futon asleep. It is alleged that the accused placed his fingers in her vagina. This is count 1 and the alternative charge is outlined in count 2.
Count 4 relates to the following morning, Tuesday 25 September 2007, when it is said that the accused begged the victim to have sex with him and she reluctantly acquiesced. The accused penetrated her vagina with his penis. This took place on the futon.
Three further acts of intercourse were alleged in which the accused is again said to have begged the victim to have sex with him and subsequently had penile vaginal sexual intercourse with her. These are the subject of counts 6, 8 and 10. The precise dates and locations of these events were unclear from the victim’s evidence and I will comment upon this further in these reasons. On Sunday 30 September 2007 the victim left the unit contacting her friend H, R. She met with Ms H and complained to her of these events and subsequently reported the matter to the police.
Following the ruling I made concerning counts 3, 5, 7 and 9 on the Information there remains one count of rape and five counts of unlawful sexual intercourse.
On the charge of rape the prosecution must prove, first, that the accused had sexual intercourse with S, R. This includes, for the purpose of count 1, digital penetration. Second it must be proven that at the time of the act of sexual intercourse Ms S did not consent to that intercourse. Consent requires that there was a voluntary participation by Ms S in the act of sexual intercourse. The third element relates to the state of mind of the accused namely he either knew that Ms S did not consent or was recklessly indifferent as to whether she did consent.
In relation to the five counts of unlawful sexual intercourse it must be proven that the act of sexual intercourse in fact took place. It must be established that at the time of the alleged acts S, R was under the age of 17.
It is agreed that Ms S was under the age of 17 at all material times. Her birth certificate was tendered.[1] The issue in relation to all remaining charges is whether the alleged sexual intercourse took place on each occasion and, in relation to count 1, whether Ms S consented. The evidence of Ms S was that she did not consent to the digital penetration alleged in count 1 and indeed the circumstances of that incident as described by her are inconsistent with consent as she was either asleep or feigning sleep.
[1] Exhibit P5
Prosecution case
The key witness for the prosecution was the victim S, R. In her evidence in chief she said that, when she initially moved in with Maxine Marchesini who she called ‘Nan’ and the accused, she had a good relationship with both of them. The accused treated her like a niece and she loved him like an uncle. After a short time she said he started acting differently.
On the Monday before she reported the matter to the police, which would be Monday 24 September 2007, she described lying on the futon in the lounge room. She said it was night about 11.00 to 12ish. Nan was asleep in her bedroom. The accused was lying next to her on the futon. He was rubbing her tummy and putting his hands down her pants. Every time he did that she would move away. On the fourth occasion he inserted his finger into her vagina. She was pretending to sleep. She said it ended when she got up.
The next morning the accused was sitting on the futon and she moved over to a two seater couch in the lounge room. He asked her if she liked it. She replied that it was disgraceful and she didn’t. He asked her if she wanted to have sex and she replied that she did not. The accused then masturbated himself while sitting on the futon. The victim put a pillow over her face to avoid watching him. She then reluctantly acquiesced to his request to have sex. This took place on the futon. She said the accused inserted his penis into her vagina. She told him it hurt but he wouldn’t stop. He ejaculated in her and it ended after about 2 – 3 minutes. Nothing much happened for the rest of the day.
She was then asked about Wednesday night. She described sitting at home with the accused and Nan. Nan went to bed. The accused asked her to have sex with him again and she said no.
She was then asked about Thursday night. She said she had been taking Nan for a walk and told her that the accused had been assaulting her and touching her. She didn’t go into detail. Nan told her not to tell the police because she didn’t want her son getting into trouble. The accused gathered they were talking about him and came after them. Ms S said that she ran off and hid but he found her. He yelled at her and punched a wall, then punched a fence and he kicked a window in on a Hair and Beauty shop. When they got home he kicked in a glass window in a cabinet and threw coffee cups around nearly hitting a friend of Nan’s who was also there. The victim said she felt sorry for him and went into the accused’s bedroom where she agreed to have sex with him “to calm everything down”.
Ms S then said that she remembered on one day the accused took her bum bag and would not return it unless she had sex with him. She did not know whether it happened the night the shop window was kicked in or the next night. It was Thursday or Friday.
The day after the window was smashed, Friday night, she and the accused were in the lounge room. Nan was in her bedroom and the accused wanted to have sex with her. She said no. She kept on telling him that he was her uncle and she didn’t want to do that with him. The accused then said that he swore on his dead father’s grave that it would be the last time. She said that she would do it if it was the last time. She said that this on the grass either outside or inside. She could not remember. She remembered the accused inserted his penis into her vagina for about 4 or 5 minutes. He ejaculated and then told her not to tell anyone.
The following day, Saturday, the accused wanted to have sex with her again. She reminded him that he swore on his dead father’s grave that he wouldn’t do it again. In the end Ms S says she agreed to have sex with him on Sunday night but formed a plan to escape on Sunday morning. When she woke up on Sunday morning she walked out of the house. She telephoned her friend H, R and then caught a train to Hallett Cove where Ms H and her father picked her up. She then had a private conversation with H, R in which she told her about what was happening at the Findon unit. Subsequently Mr Humphreys and his daughter took her to the Christies Beach Police Station where she made a complaint.
It was an agreed fact that at about 9.30 pm on 30 September 2007 a genital examination was conducted on Ms S by Dr Jane Edwards. Forensic kit no. 500665 was completed. The declaration of Dr Edwards dated 4 November 2008 was tendered by consent[2]. It was further agreed that forensic kit no. 500665 was submitted to the Forensic Science Centre and analysed by Dr Andrew Donnelly.
[2] ExhibitP7
Dr Edwards’ declaration details her interview with Ms S. Ms S told Dr Edwards that the accused had penile vaginal intercourse with her on four occasions. The first had been on the previous Tuesday morning, 25 September 2007, and on the evenings of the following Wednesday, Thursday and Friday. She described ejaculation with no condom used. She stated that she had not experienced any pain or discomfort at the time and had not had any genital bleeding. She had showered and her underwear had been washed. Genital examination was normal with no visible injury seen.
Dr Donnelly gave evidence. His statement and court report were tendered[3]. He said that sperm was not observed on microscope smears prepared from high vaginal, low vaginal and labial swabs. The low vaginal and labial swabs did not give a positive reaction to a test for acid phosphatase. Acid phosphatase is a protein present at high levels in semen but may also be present in the vagina. The high vaginal swab reacted weakly to the test for acid phosphatase and to a test for prostate specific antigens, another protein present at high levels in semen. In view of this, the high vaginal swab was subject to a further analysis to generate a DNA profile from male derived DNA. DNA of male origin was not detected in the sample. Dr Donnelly was unable to conclude whether or not a low level of semen was present on the high vaginal swab. Dr Donnelly further gave evidence that it is not possible to discriminate between seminal and vaginal acid phosphatase. Accordingly it was not possible to identify the source of the acid phosphatase. His review of literature indicated that sperm might be recovered up to 10 days post coitus from the vagina and up to 12 days post coitus from the cervix.
[3] Exhibit P4
The declaration of crime scene investigator Gary Goodwin dated 13 April 2008 was tendered by consent.[4] Mr Goodwin took photographs of the unit.[5] He also examined the futon and bed in the accused’s bedroom with a Trek-400 blue light, a device used as a screening device for body fluids, most notably semen. There was a negative reaction on the futon, however there was a positive reaction on the quilt and underlay that were on the bed in the bedroom.
[4] Exhibit P6
[5] Exhibit P2
It was further agreed that police officers searched unit 6/3 Noblet Street Findon on 27 October 2007 and that the searching officers do not recall whether a cabinet in the lounge room had a broken glass window.
Ms H, R gave evidence concerning the phone call that she received from Ms S. She said that she and Ms S were good friends and that Ms S stayed at her place often. She was aware that Ms S was staying with her uncle at Findon. She did not know that this was as a result of a bail agreement. She received a phone call on a Sunday from Ms S. Ms S sounded very distressed and said that she needed to get away from her uncle’s house. Ms H attempted to organise a friend to give her and her father a lift to pick Ms S up but the friend wasn’t available for some time. It was then arranged that Ms S would catch the train to Hallett Cove where they picked her up.
On the way back to their home Ms S indicated that she wished to speak privately to Rachel so her father dropped them off at the park around the corner from their house and they sat in the park and talked for about an hour. She was asked about the conversation and replied as follows:
AI asked her what was wrong and she said that her uncle had had sex with her and that she was scared and that she didn’t want to go back and that she wanted to stay with me and that she wasn’t sure what to do and yeah.
QDid she say anything apart from her uncle had had sex with her.
AShe said that the first night he touched her and just rubbed her up and stuff and then the second night they actually had intercourse.
QWas that all she told you whilst you were at the park.
AYes from what I can remember.
After this they went to the police.
The remaining witness called by the prosecution was Constable Sasha Perry. Constable Perry gave evidence that she spoke to Ms S on 30 September 2007 when she attended at the Christies Beach Police Station. She took a statement from her and made arrangements for her to undergo a medical examination at the Women & Children’s Hospital. She subsequently arrested the accused when he attended at the Police Station to report Ms S as missing.
She gave evidence that she checked on the police computer system to ascertain whether any shop windows had been reported as having been smashed in September 2007 in Findon. She did not find a report of that nature.
Discussion
It can be seen that the prosecution case rests very substantially upon the evidence of Ms S. If the only evidence was the evidence in chief of Ms S then it was clearly evidence upon which the accused could lawfully be convicted of counts 1, 2 and 3.
The situation is less certain in relation to counts 6, 8 and 10. Ms S’s evidence was not entirely clear as to the dates and occasions on which penile vaginal intercourse took place after Tuesday morning. Three further occasions have been alleged. Ms S’s evidence however only appears to clearly identify two further occasions possibly occurring on Thursday and Friday night. She denies intercourse on Saturday and also, apparently, on Wednesday. Her statement to Constable Perry and to Dr Edwards suggests four occasions of penile/vaginal intercourse with incidents occurring on Tuesday morning and the evenings of Wednesday, Thursday and Friday. Without being critical of Ms S, as it is clear she was doing her best to assist the court, it is true to say that she was not very helpful on dates and details. The incidents she gave evidence about tended to merge and efforts to clarify her evidence did not meet with success.
I do not propose to catalogue all of the inconsistencies in the evidence of Ms S. I will however point out some of the aspects that have caused me to consider her evidence unreliable.
Count 1 and 2 relate to allegations of digital penetration. Her evidence in court was that she was awake but feigning sleep. She said that the accused put his hand in her pants on three occasions. On each of these he withdrew his hand when she moved as if about to awaken. On the fourth occasion he inserted his fingers into her vagina. He only inserted his fingers into her vagina on one occasion. This is significantly at odds with the statement she made to the police indicating that she was asleep and woke up to find the accused had his fingers in her vagina. She gave similar information to the prosecutor in her more recent statement saying she woke up whilst the accused had his fingers in her vagina. In that statement she also said that the accused put his fingers in her vagina about three or four times more during the night.
There was also an inconsistency between Ms S’s evidence concerning the events on the following morning. She was asked about the accused’s demeanour. She described him as[6]:
…calm and normal, not normal – he wasn’t in a normal state of mind but he was calm and he was just talking normal.
[6] Transcript p74
She repeated this on a number of occasions. It was then put to her that when she spoke to the police she said the accused was in the lounge room and crying. She then said that:[7]
I’ve forgotten most of it so, like its been a year, I don’t want to keep that sort of frame of mind of memory in mind, its going to ruin my life and its going to turn me against what I am trying to do.
[7] Transcript p75

It was put to her that this was an important and significant matter that she would have remembered.[8]
QIf that conversation occurred like you described it in your statement to the police, that’s something you wouldn’t forget is it.
ANo, I couldn’t. See I thought about a year and a half ago, a year or two ago I got bashed by 6 girls with a lot of things about drugs in the head, so I’ve got some like brain damage really and its not – I know it sounds like an excuse – I got bashed by – told not to take the matter to court because my father told me not to, my step-father.
[8] Transcript p76 line 18
Ms S then went on to give evidence of an extremely distressing incident in which she was severely physically and sexually assaulted by a number of girls, locked in a room for about 6 hours and then conveyed to a hospital by ambulance. She thought it was probably Noarlunga Hospital. She said that she was kept in overnight and then released. The matter was not reported to the police. She has had no further medical treatment following that incident. She said however that her memory does not work properly. She has scars,[9] nightmares and flashbacks. Her behaviour has changed in that she becomes “pretty violent”.[10]
[9] Transcript p79
[10] Transcript p107
Ms S also gave evidence in chief that on the first occasion of penile vaginal intercourse she told the accused that it hurt and he wouldn’t stop.[11] This is a serious allegation. She was cross-examined on this point.[12]
[11] Transcript p34
[12] Transcript p85-86
QYou said on Wednesday when you were asked about this incident, the one we have just been talking about.
AYes.
QThe first time you say there was sex on the futon.
AYes.
QYou say “he inserted his penis and I said it hurt and he wouldn’t stop”.
AYep.
QIs that something you have a memory of.
ANah! But I know it happened.
QDidn’t you say this to the police back in October 2007 “I”
AIf something happens to you for a whole week and a day after it stops, of course you are going to remember like something like that. Like
QDidn’t you say to the police “I lied to Paolo and told him that what he did didn’t hurt”.
APardon.
QI will read it to you again. You said this to the police “I lied to Paolo and told him what he did didn’t hurt”.
AYeah, I lied to him yeah.
QSo when you said now I said it hurt and he wouldn’t stop.
AWell I’m not going to tell him that like he knows what he is doing like.
QIt’s very important that you try and tell her honour things as you actually remember them.
AYes
QRather than as they are convenient. What you told her honour yesterday was “I said it hurt and he wouldn’t stop”.
AYes that’s correct.
QYou don’t actually remember saying that do you.
ANo. On Wednesday?
QYou don’t remember tell Mr Marchesini that it hurt.
AYes I do.
QBut then when you say to the police.
ABut I.
QI lied to Paolo and told him what he did didn’t hurt, one of those two statements is obviously wrong isn’t it.
AI remember telling the police that it did hurt but I don’t remember – I remember telling Paolo it didn’t on that Wednesday. It did not.
QSo on Wednesday, when you said to her honour that you told Paolo that it hurt and he wouldn’t stop that wasn’t true was it.
ANo it wasn’t.
QBecause.
AI told Paolo it did not hurt and yeah and I told Sash Perry that it did hurt and he wouldn’t stop I remember that.
QYou said that it happened the opposite way around. It’s fair to say that you don’t actually have a vivid memory of any of this do you.
AYes I do. The statement that I gave this week I do have a memory yes.
This issue as to whether Ms S remembered things or simply remembered what was in one or other of her statements was a consistent feature of her evidence.
Ms S gave evidence that each of these events occurred after Nan Marchesini went to bed. She agreed that the bathroom opened off the lounge room and that if Nan went to the bathroom she would walk through the lounge room. She said that Nan would get up around 9.30 – 10.00 in the morning, some mornings she would sleep in until 12 because she did not sleep until 2 o’clock in the morning despite having gone to bed earlier. She was asked what Nan was doing until 2 o’clock in the morning:[13]
[13] Transcript p93 line 18
ASitting in her room probably, sitting up: she didn’t sleep that much.
QDid you know that’s what she was doing.
ANo I did not, I didn’t see her. She went to bed around about I don’t know 10 probably stayed up all night like she’s got diabetes and she got stressed as well and she couldn’t sleep.
QOn those nights when she was sitting up until 2 in the morning could you hear any sounds coming from her room.
ANo I could not. She probably would just sit on her bed and I don’t know stay up. I don’t know what she would do.
QSo if you say that Paolo Marchesini came to your futon at 10 or 11 o’clock at night.
AShe was not there.
QYou would have known that she was awake.
AI have no idea. Probably she might have been awake, she might have been asleep. I don’t know what she was doing in the room she would always have her door closed.
Later she was cross-examined about her statement to Constable Perry that Nan tried to stay up all night to stop Paolo having sex with her.[14] She was unable to explain the inconsistency.
[14] Transcript p101
Ms S was asked about the evidence that she gave concerning having sex on the lawn. The interchange took place as follows:[15]
AYes but I don’t remember if it was inside or outside, I said that.
QIs that because you didn’t really have any real memory of that event happening.
AI don’t remember, no, I don’t.
QYou were just trying to fill in the gaps in your memory.
AYes I am trying my hardest.
QWe appreciate that its true in this trial there has been a number of gaps in your memory that you have tried to fill in by making assumptions.
AEverything that I have said is true like I haven’t tried filling in or nothing or said anything that’s not true.
[15] Transcript p113
It was difficult in this and other parts of the evidence of Ms S to ascertain if she was giving evidence from her own recollection, a reconstruction based on having read her statements to police or on some other basis. In making this observation I do not wish to suggest that Ms S was deliberately trying to mislead me. I have no doubt that she genuinely believes that these events took place. Her evidence however fell short of convincing me beyond a reasonable doubt that they did.
Conclusion
During cross-examination, counsel for the accused was able to expose internal inconsistencies in the evidence of Ms S and inconsistencies between what she had told police officers shortly after the alleged offences and in a statement that she had made shortly prior to the commencement of the trial. Even making allowances for the distressing nature of these allegations, Ms S’s lack of education and the possibility of some cognitive impairment the inconsistencies were not in my view minor matters. In addition if her evidence was accepted then it is likely that there would have been additional evidence in the form of sperm on the futon, a report of a smashed window and visible damage to the cabinet in the lounge room of the unit. Whilst the absence of these features is not fatal and may be capable of explanation the complete lack of other evidence, taken into account with the inconsistencies in the different versions given by Ms S, causes me to doubt the underlying basis of her evidence and also the reliability of the story that she has told. In making this observation I take into account that there is no dispute that Ms S did complain to Ms H on 30 September 2007 and did appear to be distressed.
In view of these matters I have a reasonable doubt that sexual intercourse occurred as alleged in counts 1, 2, 4, 6, 8 and 10. That being the case the prosecution did not prove the necessary elements of these counts beyond reasonable doubt. For these reasons, I found that the evidence was so lacking in weight and reliability that I could not safely convict upon it.