R v Mitrovic - [2008] SADC 151

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MITROVIC
Criminal Trial by Judge Alone
[2008] SADC 151
Reasons for the Verdicts of His Honour Judge David Smith
14 November 2008
CRIMINAL LAW
Trial by judge without jury – accused pleaded not guilty to three counts of rape and one count of indecent assault – allegations that accused raped and indecently assaulted the complainant who, together with a friend, was temporarily staying at and “spring cleaning” the house in which the accused was residing – accused pleaded that complainant consented to sexual activity – discussion of the legal matters which required consideration.
Held - prosecution did not negative as a reasonable possibility the accused’s assertion that the complainant consented.
Verdicts – Not guilty on all four counts.
Bromley v The Queen (1986) 161 CLR 315; R v Corkin (1989) 50 SASR 580; R v Knight [1966] 1 All ER 647; R v Evans (1985) 38 SASR 344; Edwards v R (1993) 178 CLR 193; Zoneff v R (2000) 200 CLR 234; R v Calides (1983) 34 SASR 355, considered.

R v MITROVIC
[2008] SADC 151
Introduction

The accused is charged on Information with the following offences:
First Count
Rape. (Section 48 of the Criminal Law Consolidation Act1935).
Particulars of Offences
Mitch Mitrovic on the 4^th day of October 2007 at Greenacres, had sexual intercourse with COF, without her consent, by performing an act of cunnilingus upon her.
Second Count
Rape (Ibid).
Particulars of Offences
Mitch Mitrovic on the 4^th day of October 2007 at Greenacres, had sexual intercourse with COF, without her consent, by inserting his fingers into her vagina.
Third Count
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act1935)
Particulars of Offences
Mitch Mitrovic on the 4^th day of October 2007 at Greenacres, indecently assaulted COF.
Fourth Count
Rape. (Section 48 of the Criminal Law Consolidation Act1935)
Particulars of Offences
Mitch Mitrovic on the 4^th day of October 2007 at Greenacres, had vaginal sexual intercourse with COF, without her consent.
The accused elected for trial by a judge without a jury. He was arraigned before me on Monday the 22^nd October 2008 and duly pleaded not guilty to the above charges. The trial proceeded throughout the week and concluded on Friday the 24^th October when, following final addresses of counsel, I adjourned to consider my verdicts. I now publish my reasons and hand down the verdicts.
Uncontentious Background – The Issue
The accused is 42 years old. As at the time of the alleged offending, namely the 4^th October 2007, he was residing at the home of a Ms Wendy Taylor at 12 Rellum Road, Greenacres. He had commenced a relationship with her some six or seven weeks earlier.
The offences were alleged to have taken place in the Rellum Road house in the early hours of Thursday 4^th October 2007. At the time Ms Taylor and her sons were absent interstate. They were away for a week or so and were due back on Thursday the 4^th October. The accused had decided to tidy up the house whilst Ms Taylor was away and surprise her. He elicited help from a friend, Michael Toft, and also from the complainant, Ms COF.
The accused had known Michael Toft since about 1992. They had met in gaol and had maintained a friendship with each other. The complainant, Ms COF, was a friend of Michael Toft and at the time lived with him in rented accommodation at Ascot Park. The accused had first met the complainant in early 2006 through his association with Mr Toft.
Michael Toft had been at the Rellum Road house for a number of days helping the accused. Then on Tuesday afternoon the 2^nd October the accused telephoned the complainant and asked if she would come and help with the cleaning. She agreed and arrived that evening and so commenced helping with the cleaning work.
She alleges that in the early hours of the second day, namely Thursday the 4^th October, the accused came into the bedroom, in which she was sleeping, and committed the above four offences against her.
When interviewed by the police on the 9^th October 2007, he denied any sexual contact with the complainant. In evidence he admitted that was a lie and accepted that there had been sexual activity with the complainant, but that it was consensual.
So the issue for me is whether the Prosecution have proven, in respect of each of the counts considered separately that the complainant did not consent to the sexual contact alleged.
I turn to the evidence.
Evidence
The prosecution case consisted of oral evidence from:
·COF - Complainant
·Michael Toft;
·Mary Toft;
·Brett Allen – Crime Scene Examiner;
·Dr Karen Sandercock – Medical Practitioner;
·Michael Miller – arresting police officer;
·Kimberly Anne Windram – Forensic Scientist.
In respect of the forensic evidence, there were no issues about the chain of evidence. Further, it was agreed that the prosecution witness Michael Toft has not been charged with any offence arising out of these events. The significance of that Agreed Fact will become clear as I canvass the evidence.
The accused gave evidence in his own defence. As indicated, he said that sexual activity between himself and the complainant was consensual. His sister, Lilliana Mitrovic, proved a number of photographs which were put in evidence in addition to those taken by the police.
I now turn more particularly to the evidence.
Prosecution Evidence
The first witness Constable Brett Allen provided a bundle of photographs (Exhibit P1) and a plan of the house (Exhibit P2) which set the scene.
COF, the complainant, said she was 48 years old. She said that she was a friend of Michael Toft and came to know him when they were both resident at a boarding house in Mitchell Park which was referred to from time to time in the evidence as “the Mitchell Park Lodge”. She said that the accused was a friend of Michael Toft and she met him at the Lodge on a number of occasions.
By October of 2007 she and Michael Toft were living together at Ascot Park. She emphasised, as he did that though they were living together, they were only friends. There had been only one occasion when they had slept together and had sexual intercourse.
On Tuesday evening the 2^nd October 2007, Michael Toft telephoned the complainant and asked her if she would come to the house in Greenacres and bring with her some tobacco and $30 for him. The complainant said that whilst she was considering, she received another telephone call from the accused asking her if she would help clean up the house at Greenacres. There was also some discussion about Ms Taylor paying for the work. The complainant agreed and following a further telephone conversation with Michael Toft, in which he gave her instructions on how to get there, she set off on the bus to Greenacres. She arrived just after dark at about 6.30 pm. The accused was initially absent and when he came home she commenced doing some work. She agreed to stay the night and on directions from the accused slept on a mattress in the hallway. She said she wanted to sleep in the lounge near Michael Toft but in the end did what the accused said. She said that both the accused and Michael Toft slept in the lounge. She said that she awoke between 6.30 am and 7 am on the following day which was Wednesday the 3^rd October and, having had no shower nor anything to eat, worked cleaning up the house throughout the day.
For the second night, namely the 3^rd October, the complainant said that the accused insisted that she sleep in the main bedroom at the end of the house. The complainant said that she went to bed at about 1.45 am on Thursday morning the 4^th October. She said that in the early hours of the morning she awoke to find the accused in bed with her. He was pinning her down. He was lying on her left side facing her and to her knowledge was naked. She recounted the following which I will summarise in the first person:
·The accused said “Shh” and asked me to be calm. I knew I was in trouble and I said “No”.
·The accused then pulled my top up exposing my breasts. His legs were then wrapped around my left leg;
·He then moved down to the lower part of my body and pulled my knickers down, eventually to my ankles, and he then started to spit on my vagina. I said “No. I haven’t had a shower”. I was in shock and unable to move.
·He then got up and tried to insert his penis into my vagina but had trouble “getting all the way in ...” He appeared angry. I was unable to move. I was frightened. I tried but I couldn’t speak.
·He then resumed the original position beside me and asked me to grab his penis. I recollect saying “No” and he responded “Keep doing it” or words to that effect. I had a bit of trouble but I did it.
·Then he moved down towards my vagina again and started spitting again and also biting me on the outside of the vagina in the thigh area.
·A few minutes later he then succeeded in getting his penis into my vagina and with that he grabbed my legs pulling them apart and put them over his shoulders. I tried to resist but my body was jelly. I tried to talk but nothing would come out.
·He withdrew without having ejaculated, spat on my again and then put a few fingers of his right hand in me. It was a painful burning sensation.
·He then eventually entered me again with his penis “Putting it in and out ...”
·It ended when I heard Michael coming up the hallway to the bathroom and the accused jumped off and said “... shh don’t tell anyone or I’ll kill you. Don’t tell Michael ...” he left the room.
(38-44)
The complainant did not protest to the accused or complain to Michael Toft in the course of the next morning (46). She remained at the house. In the afternoon, together with both the accused and Michael Toft, she travelled to the city by bus. It was pension day and they were heading to Centrelink in Currie Street (47). The complainant pretended to have left the appropriate form home and separated from them in the city (46). The accused had given her some curtains. She left the bag of curtains at her home in Ascot Park and then went to the Marion Shopping Centre (47, 48). By the time she had returned home from Marion, Michael Toft had arrived. She eventually told him what had happened. Then she said that she rang Michael’s mother, Mary, at about 8 pm that Thursday evening the 4^th October. She complained to Mary Toft of being raped by the accused (48). She recounted that Mrs Toft advised her to report the matter to Yarrow Place. The complainant did that. On the 5^th October she provided a statement to the police and was examined by Dr Karen Sandercock at Yarrow Place. She also handed over the clothing she slept in at Rellum Road on the nights of the 3^rd and 4^th October (50).
She said that on the evening of the 5^th October 2007 the accused rang her on her mobile when she was at Mary Toft’s place and said “Why are you doing this to me? Why have you got the police onto me?” She said he was wanting her to call it off (50).
A number of significant matters emerged from the complainant’s evidence in cross-examination. I set out some of them in context with comments by me.
1.The complainant agreed that in her statements to the police she did not say that she stayed two nights and her evidence in chief started out, at least, giving the impression that she only stayed one night (56, see also 23). She accepted and became definite that she stayed two nights, in particular Tuesday night the 2^nd and Wednesday night the 3^rd. She agreed that she slept on the mattress in the hallway on the first night and in the main bedroom on the second (56).
2.She accepted that on Wednesday morning the 3^rd October she woke, having slept the night on the mattress in the hallway and the following she said occurred:
I remember waking up, I was on the mattress, I looked over into the kitchen area. Michael wasn’t in there. Next minute Mitch came up to me, he put his arm around me and said “Would you like a cuddle” and I said “No” and then he walked away into the kitchen
(84)
This did not emerge in the complainant’s evidence in chief. With some different detail it features in the accused’s evidence. He suggests that she, at that time, gave the impression to him that given the right circumstances, and in particular some privacy from Michael, she would be agreeable to some sexual contact with him. The plaintiff denied categorically that she gave the accused any such indication. Further, she denied that the accused had slept in her bed with her previously at the Mitchell Park Lodge (59), that she had borrowed a pornographic DVD (Exhibit D3) from him (60) or that she had, at an earlier time, discussed the topic of sexual intercourse with him (61).
3.She agreed that she knew at the time she went to the Greenacres house that both Michael Toft and the accused had served time in prison together (63, 69).
4.She accepted that in May 2008 she made a further statement to the police, inter alia, implicating Michael Toft in what she said happened to her at the Greenacres house (68). This further statement, she agreed, was in the following terms:
On Wednesday night, 3^rd October 2007, Mike and Mitch went into the kitchen and closed the door. When Mitch and Michael came out we all had tea together. Michael said “After you have gone to sleep and you have gone into that room Mitch and I are going to come into that room and high‑5 you”. I said “What does that mean?”, and Michael said “Mitch and I are going to have a go at you””.
The complainant explained in evidence that she did not include this information in her earlier statements because she was then traumatised and it was later that the events became clearer (69). She added that she did not understand what “high-5” meant (69). She also agreed that she told the police in that same statement that Michael Toft may have put drugs in water which he gave to her on the morning of the 4^th October at the Greenacres house (77, 78).
She resisted the suggestion that she implicated Michael Toft in the May 2008 statement because they had separated (75). It seems to be the case that they had separated by the time of the statement. She agreed that in November 2007 she and Michael Toft had moved from Ascot Park to Michael’s mother’s house and then on the 14^th March 2008 she and Michael separated because of his drinking problems (66).
5.The complainant accepted also that in the statement of May 2008 made to the police she also said that in November 2007, presumably before they separated, Michael Toft said to her:
“I set you up for the rape. You were the worm on a hook, the bait; I was just trying to get rid of Mitch”
(75, 76)
She said that she continued living with him, notwithstanding that revelation, because “... it was just his drinking that was the talk ...” (76).
6.She also agreed that in that same statement she told the police that Michael Toft told her in the summer of 2007, in a telephone call from Yatala, that if she withdrew the complaint he would get hold of $10,000. She said that Michael Toft told her that “it doesn’t necessarily have to come from Mr Mitrovic” but it was his offer (76, 77).
7.When it was put to her that in 2006 she was diagnosed as suffering from Paranoid Schizophrenia, she countered by saying that it was a misdiagnosis (78). She explained that a tumour which she had for almost a decade, was removed in 2005 and that was responsible for hallucinations which in turn led to the diagnosis (79). She said that she had been told by Dr Craig Juresevic from the Cardio Thoracic Unit at the Royal Adelaide Hospital that the tumour was releasing chemicals into her bloodstream which were responsible for the hallucinations (82). She agreed that the diagnosis of paranoid schizophrenia was first made by Dr Lucy Shepherd from the Flinders Medical Centre and then by Dr James Lally of the Carramar Health Clinic (79). She agreed that she had been prescribed medication for this condition by Dr Lally in December 2006 but that she would not take it because of her conviction that she was not suffering from the illness (81). She said that she was attending the Carramar Clinic in 2006 to make sure that following her long illness she did not “... fall into a black hole with some depression ...” (83).
As indicated, most of the above enumerated matters emerged in the evidence during cross-examination. There were other matters explored in cross-examination which are arguably pertinent to the cogency and reliability of the complainant’s account. I will of course have regard to them.
Mary Toft said the complainant telephoned her at 10 am on the 5^th October. Mrs Toft said that the complainant was very upset and complained that the accused had raped her. Mrs Toft said that she told the complainant that she had better report it or say nothing and she referred the complainant to the Sexual Abuse Clinic at Yarrow Place.
Mrs Toft had a relationship with the accused shortly before the time of these allegations. She was an angry impatient witness. The timing of the complaint as per Mrs Toft’s evidence conflicts with the evidence of the complainant.
Michael Toft started his evidence by confirming the uncontentious background matters which I have set out above.
He then said that upon arrival at the Greenacres house the complainant gave him the pouch of tobacco and handed over the money which was to pay for the marijuana they were smoking (130). Initially Mr Toft suggested that the complainant stayed only one night (131). But in cross-examination he corrected that and confirmed that on the first night the complainant slept on a mattress in the hallway and on the second night in the double bed in the main bedroom which he called Wendy’s bedroom (132, 138).
He said that in the early morning of the second day, (ie Thursday morning the 4^th October 2007), as he walked down the hallway to the toilet he saw the accused coming out of Wendy’s bedroom. He claimed that he said to the accused something like “... she’s worked all night what are you doing like? Let her sleep”, to which the accused replied “Yeah yeah yeah” (133). Michael Toft went on to say that when the complainant finally emerged from the bedroom she was in shock, shaken and looked pale (133). He said that in answer to his enquiries she would not talk (134). He agreed that she did a little bit of sewing work on that morning and then later in the day all three of them travelled into the city by bus to the Centrelink offices in Currie Street. He said that the complainant left him and the accused in the city and headed home to Ascot Park (134).
He said that he arrived home to Ascot Park at about 4 pm and it was then that the complainant told him that the accused had raped her (136). Mr Toft said that after some drinking at about 8 pm or 9 pm he telephoned the accused and “... went off at him ...” (136).
In cross-examination he said that the accused cooked regular meals and looked after everyone at the Greenacres house (139). He denied the “high-5” conversation and denied that he told the complainant that he had set her up for rape (139). He did agree that an inmate in gaol had suggested to him that “... if I could get COF to drop the charges I’d get $10,000 ...” (139). According to Mr Toft his response to this suggestion from the inmate was that he didn’t want any part of it.
He said that at the Greenacres house, the three of them would, from time to time, gather in the laundry for a smoke, only because Ms Taylor did not like smoking in the house (143).

He vaguely remembered the accused giving the complainant some curtains to take home (145) and further he said that he had loaned the pornographic DVD (Exhibit D3) to the complainant (147). He had vague recollections of the complainant discussing with him that she’d been diagnosed with paranoid schizophrenia but in his view no real problems ever “showed themselves” which could have related to that (148).
Finally, he said he and the complainant parted company because “... she didn’t want to go to church ...” (149).
Detective Michael Miller gave evidence of the accused presenting at the Holden Hill Criminal Investigation Branch on the morning of the 9^th October 2007 with his solicitor Mr David Hall. He said the accused submitted to a video recorded interview in the presence of his solicitor (see video cassette Exhibit P8 and transcript Exhibit P9). In the interview the accused denied any sexual contact with the complainant.
At the conclusion of the interview the accused was arrested and charged and buccal swabs were taken for DNA profiling.
Dr Karen Sandercock saw the complainant at 2 pm on Friday the 5^th October 2007. She took a history from her and then conducted a physical examination.
There were no recent injuries. She was not able to conduct an internal genital examination by reason of claimed discomfort. The examination of the external genital area was normal save for the presence of a malodorous smell consistent with bacterial vaginosis. The external vaginal examination results were consistent with the complainant having had sexual intercourse within the past 48 hours whether consensual or not.
Dr Sandercock took from the complainant the following specimens:
·Buccal swab from the complainant’s mouth for DNA profiling;
·Labia swab and smear to test for presence of semen;
·Lower vaginal swab to test for semen;
·Skin swab from labial area to test for saliva;
·Urine sample;
·Blood sample;
·Skin swab from right arm for controlled purposes.
These specimens were stored in preparation for forwarding to the Forensic Science Centre for analysis.
Clothing was collected and packaged also for forwarding to the Forensic Science Centre.
The evidence of the Forensic Scientist Ms Kimberly Windram established:
·With a probability near certainty that the DNA profile of the scene samples taken from the vaginal swabs of the complainant matched the DNA profile of the reference samples taken from the buccal swabs of the accused (see Exhibit P10 DNA Results); and
·That the testing of the three samples of the complainant’s underpants, (see Exhibit P4), showed no other explanation but that the substance tested was saliva.
Such is a summary of the prosecution evidence.
Defence Evidence
The accused started his evidence by admitting that he did engage in sexual activity with the complainant on the 4^th October 2007, and so lied to the police when interviewed. He sought to explain that the lie was motivated by his wish to preserve his new relationship with Wendy Taylor (180).
He said that he had known Michael Toft for 14 or 15 years and that through him he met the complainant in 2006. He said that he came to meet her when he attended at the Mitchell Park Lodge to help deal with a man who was making trouble there. He claimed that he slept the night in the complainant’s room and initiated some intimacy with her but she declined on the basis that she had not had sex for 10 years and wanted to wait to get to know someone first (182).
Thereafter the accused saw the complainant from time to time in company with Michael Toft (183). He said he loaned her the pornographic DVD (Exhibit D3) at her request (183).
He said that at the end of July or early August, when he was in a relationship with Michael Toft’s mother Mary, he met Wendy Taylor. As a result of that meeting, he immediately terminated the relationship with Mary Toft (184) and so in early October 2007 he was residing at Wendy Taylor’s house, intent on “tidying it up” whilst she and her children were away in Melbourne (184). Michael Toft was helping and the complainant was also invited to help (185, 186).
According to the accused the complainant arrived on the afternoon of Tuesday the 2^nd October (186), and that evening after a meal and a game of scrabble the three of them went to bed. He said that he and Michael Toft slept in the lounge and the complainant slept on a mattress which he put in the hallway of the house (187). He said that he awoke at about 7 am the next morning and spoke to the complainant, who was at the time in bed on the mattress. He alleged that he asked her if she wanted some male company. According to him she replied “... no, Michael is next door, he can hear us because there is a glass door ...” The accused said that his response was “... we will talk later ...” Recounted in evidence how the three of them had breakfast and worked cleaning up the house in the course of the day (189, 190). He made the point that they smoked in the laundry because Ms Taylor disapproved of smoking in the house (188).
He said that throughout the day there was “... banter ... just a bit of flirting ...” between him and the complainant. He added that the main bedroom was tidied up because “... she wanted to sleep in that room away from Michael, so Michael can’t hear ...” (191). So, according to the accused, that night, after midnight, when Michael Toft was asleep he left his bed in the lounge and joined the complainant in the main bedroom where after some talking, kissing and fondling the following consensual sexual activities occurred:
·Cunnilingus by the accused on the complainant;
·Vaginal sexual intercourse in the missionary position then with the complainant’s legs up on the accused’s shoulders; and
·Vaginal sexual intercourse with the accused behind the complainant which resulted in the accused ejaculating on the complainant’s stomach having withdrawn at her request.
Then according to the accused they relaxed for a time and then he asked her to masturbate him which she did and that was followed, he said, by vaginal sexual intercourse again in the missionary position but later with her legs up on his shoulders. He said that this again resulted in him ejaculating (193, 194). The accused said that he left the bedroom at about 6.30 am (195). He denied meeting Michael Toft or speaking with him in the hallway upon emerging from the bedroom (214). He said that after breakfast they continued to work in the house. The complainant he said was sewing. In the afternoon all three of them proceeded to the city (194-6). He confirmed that he gave the complainant a bag of table clothes, curtains and the like (197). He confirmed also that the complainant, him and Michael Toft in the city and headed off home. He said that at the bus stop he gave the complainant a hug and a kiss and helped her onto the bus with the bag (197).
He said that at about 9.30 pm on the evening of the next day, namely Friday the 5^th October, he was telephoned by the police and learned of the allegations of rape (198).
He ended his evidence in chief by emphasising that the complainant was a willing participant in all the sexual activity, save that she declined to perform oral sex on him (199). He denied himself using marijuana at the Greenacres house but said that Michael was smoking it (213).
He admitted ringing the complainant on the 5^th October but denied being angry (209). He denied discussing the allegations with Michael Toft but accepted that Michael had telephoned him and that Michael was “... incoherent, drunk and babbling ...” (221). He denied spitting on the complainant’s vagina but suggested rather glibly that his saliva was transferred by oral sex (224).
Lilliana Mitrovic confirmed that she took all but five of the photographs of the Greenacres home in the booklet Exhibit D1. She confirmed that the five photographs she did not take were however of the subject house.
Such is a summary of the defence evidence.
Matter of law – directions
I direct myself as to the elements of the individual offences. In this case, reckless indifference does not arise. On the prosecution case Ms COF made it plain to the accused that his advances were not welcome and on the defence case Ms COF is alleged to have invited and willingly participated in the sexual activities with the accused.
Trite though it may be I remind myself that the prosecution must prove the elements of each offence separately considered beyond reasonable doubt.
I remind myself that the four charges must be separately considered. They do not stand or fall together. There is however, evidence common to each count, such as the evidence of the general background. A further example of cross admissibility is the complainant’s assertion that she said “No!” early in the sexual encounter. That indication of lack of consent is cross admissible in respect of all counts. So too the accused’s evidence of the complainant’s encouraging talk and behaviour on the morning of, and in the course of, the 3^rd October is similarly admissible in respect of all the counts. Also, in practical terms a view held by me as to the credibility and reliability of the two principal witnesses here, namely the complainant and the accused, will apply across the counts.
The complainant accepted, not the correctness of, but the fact that she had been diagnosed with paranoid schizophrenia and that she had attended Carramar Clinic in 2006. The evidence about this mental illness did not reach beyond that. There was no suggestion or allegation in the evidence of delusional behaviour by the complainant. Accordingly, the warning of the sort articulated in Bromley v The Queen[1] is not indicated. To warrant such a warning the evidence should at least reach the stage of indicating that the complainant was at the time of these events suffering from a mental illness which may affect her capacity to give reliable evidence. There was no such evidence. However, because I intend to direct myself not to use the lie to the police as indicating a consciousness of guilt, the prosecution case is wholly dependent on the complainant’s evidence and in such a circumstance I will in any event take particular care in assessing the complainant’s evidence.
[1] (1986) 161 CLR 315
I admitted in evidence two complaints of Ms COF. The first to Michael Toft made on the afternoon of the 4^th October and the second to Mrs Mary Toft later on the same evening. I think the complainant’s evidence about the timing of her complaint to Mrs Toft is preferable to that of Mrs Toft who said it was 10 o’clock the next day. First of all I consider the complaints to be sufficiently recent and in a sense connected. So there is no impediment to me using two complaints (see R v Corkin[2]). Of course the evidence of the complaints to both Michael Toft and his mother is not evidence of the truth of the content of what is complained of but is to be used by me in assessing credibility, believability or consistency of the complainant’s evidence. I accept it on that basis.
[2] (1989) 50 SASR 580
Further, there was evidence from in particular Michael Toft about the distressed state of the complainant on the morning of Thursday the 4^th October. This evidence, like the evidence of recent complaint, is indicative of consistency and credibility (see R v Knight[3]). Again I accept that evidence on that basis. In so concluding, I have had regard to the counter suggestion that Ms COF might have become regretful of having engaged in sexual activity with the accused behind the back of her friend Michael Toft.
[3] [1966] 1 All ER 647
In respect of the defence case I have regard to the fact that the accused gave evidence.
Further, I do not draw anything adverse to the accused from the fact of knowing that he has spent time in gaol and in particular was at the time of this alleged offending attending a parole course.
The accused has admitted a lie to the police. The prosecution opened the case on the basis that I should regard the lie as indicating a consciousness of guilt of the offences charged. Counsel for the prosecution, Mr White, however made it clear that for me to draw such a conclusion I must be satisfied that there is no other reasonable explanation. In respect of this matter, I have regard to the principles agitated in R v Evans[4]; Edwards v R[5]; and Zoneff v R[6]. The accused said that he was motivated to tell the lie by his wish to keep his new relationship with Ms Taylor intact. I cannot exclude that as a reasonably possible explanation of the lie and so I cannot regard it as a lie told out of a consciousness of guilt. Rather, it impairs the credibility and reliability of the accused’s evidence in respect of other matters.
[4] (1985) 38 SASR 344
[5] (1993) 178 CLR 193
[6] (2000) 200 CLR 234
There is one issue in this case, namely consent. There being no evidence directly about this issue other than the word of the two participants, the credibility and reliability of in particular the complainant is crucial. I remind myself in this respect that the exercise here is not to evaluate the respective versions but rather to determine whether or not the prosecution has proved the elements of the charges, considered separately, beyond reasonable doubt. In this respect I remind myself of what was said in R v Calides[7]. I now turn to my findings and verdicts.
[7] (1983) 34 SASR 355 per Wells J at 358
Findings – Verdicts
The prosecution contend that the complainant was a somewhat naïve woman who, like a moth in a candle, did not appreciate that the accused saw her as a sexual opportunity and manoeuvred her into the relative privacy of the rear bedroom intent on having sex with her whether or not she was agreeable. I am also asked to find that the historical evidence about sleeping with her at the Mitchell Park Lodge, borrowing the pornographic DVD, and speaking openly about sexual matters, was a devious ploy, like the accused’s version of the conversation at the mattress in the hallway on the first night, designed to encourage a conclusion that the complainant was likely to have consented to sexual advances. Further, the prosecution say that the accused lied to the police but then changed his position upon the emergence of the forensic evidence which he did not anticipate.
The defence case is that the acceptable evidence shows that the complainant was agreeable to having sexual contact with the accused. Further, it was contended that the complainant’s ambivalent behaviour afterwards in particular the delayed complaints, the inconsistency between her evidence in court and her statements to police and the late emergence of the conspiracy allegation all cast doubt on the prosecution case.
The complainant appeared to be a straightforward and honest witness. Even though there is, on my concluded view about the proper use to be made of the accused’s lie, no corroboration, the evidence of distress and the complaints is consistent with her allegation of having been raped and indecently assaulted.
The accused on the other hand was not an impressive witness. He was glib and appeared confident that he had mapped out a safe route through the allegations and his own lie to the police. The following exchange exemplifies this:
Q.    Did you spit on this lady’s vagina.
A.    No.
Q.    On the night.
A.    No.
Q.    You heard her say that you did that.
A.    Yes, I heard her say that many a times.
Q.    So you would account for your saliva by reason of the –
A.    Transfer in oral sex.
(224)
The focus of my attention, given the onus and burden of proof, must be whether the complainant’s evidence enables me to conclude beyond reasonable doubt in respect of each of the four charges that she did not consent. I remind myself that this is not a matter of preferring one version to the other.
The prosecution case is wholly dependent on the complainant’s evidence. There is no corroboration. That of course does not mean that the prosecution case cannot succeed or that a special warning is called for.
I indicate here that, notwithstanding that the evidence relating to cunnilingus did not emerge until cross-examination, that I am satisfied that all elements, other than the requirement for consent, of each of the four offences, have been proved beyond reasonable doubt.
In considering whether the element of consent in respect of each of the four offences has been established beyond reasonable doubt I must necessarily also exclude as a reasonable possibility that the accused’s assertion that there was consent is not true.
As indicated, I was generally impressed by the complainant’s evidence but there were some aspects which cause me concern and which compel me to say that the offences and in particular the elements relating to consent have not been proven beyond reasonable doubt.
I am not satisfied to that necessary degree of satisfaction, because of the accumulation of the following matters:
·the absence of a protest or complaint by the complainant later on the morning of the 4^th October to the accused and/or to Michael Toft;
·the failure of any attempt to leave the house on the morning of the 4^th when she clearly had sufficient monies for a bus fare;
·no attempt to use her mobile phone to summons help or raise an alarm;
·the incongruity of accepting a gift of curtains etc from the accused and carrying them away;
·accompanying both the accused and Michael Toft by bus to the city on the afternoon of the 4^th October;
·submitting to a kiss and a hug from the accused when they parted company in the city; and
·not making any complaint immediately upon being free of the company of the accused but rather travelling home, depositing the bag of curtains and then travelling to the Marion Shopping Centre and back to Ascot Park.
To the above matters I would also add those matters enumerated and particularised by me in paragraph [22] above some of which emerged in cross-examination. They reveal plainly relevant matters which the complainant has reported rather belatedly to the police and some equally relevant and obvious matters which did not emerge in evidence in chief.
The united force of all the above matters cause me to question whether I can properly reach the stage of being satisfied beyond reasonable doubt.
Accordingly, my concluded view is that the prosecution have not negatived as a reasonable possibility, that the complainant consented to the sexual advances of the accused.
In respect of each of the four charges my verdicts are not guilty.