R v MZ (No 3)
[2021] ACTSC 332
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v MZ (No 3) |
Citation: | [2021] ACTSC 332 |
Hearing Date: | 7 April 2021 – 9 April 2021 |
DecisionDate: | 9 April 2021 |
ReasonsDate: | 23 December 2021 |
Before: | Loukas-Karlsson J |
Decision: | See [287]-[288] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – Retrial – Trial by judge alone – sexual intercourse without consent – related charge – administer a declared substance without authorisation – verdicts of not guilty |
Legislation Cited: | Crimes Act 1900 (ACT) s 54 Criminal Code 2002 (ACT) Supreme Court Act 1933 (ACT) s 68B, 68C |
Cases Cited: | Azzopardi v The Queen [2001] HCA 25; 205 CLR 50 Banditt v The Queen [2005] HCA 80; 224 CLR 262 Zoneff v The Queen [2000] HCA 28; 200 CLR 234 |
Parties: | The Queen (Crown) MZ (Accused) |
Representation: | Counsel A Chatterton (Crown) M Thangaraj SC with M Jones (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Accused) | |
File Numbers: | SCC 318 of 2018; SCC 319 of 2018 |
LOUKAS-KARLSSON J:
Introduction
This is a judge-alone retrial conducted pursuant to s 68B(1) of the Supreme Court Act 1933 (ACT) (Supreme Court Act). MZ (the accused) signed an election to be tried by a judge alone for the retrial on 24 March 2021. An election could be made for a trial by judge alone for the retrial due to amendments to s 68B that have since elapsed, notwithstanding that it related to an “excluded offences: s 68B(3A)(b).
The accused was first tried before Mossop J and a jury in October 2019. On 14 October 2019, the jury found the accused guilty of the single count on the indictment namely that on 17 August 2018, he had engaged in sexual intercourse with GR (the complainant) without her consent and was reckless as to whether she consented. On 3 December 2019, Mossop J found the accused guilty of a summary charge that had been transferred from the Magistrates Court, namely a charge of administering a declared substance: Kirby v MZ [2019] ACTSC 327.
The accused was then sentenced by Mossop J: R v MZ [2019] ACTSC 341. The accused appealed against the finding of guilt made by the jury on the grounds that the trial judge had erred in the directions that were given to the jury. The accused also appealed against the conviction for the summary charge. Both the principal appeal and the appeal against the summary charge conviction were upheld, and a retrial was ordered: MZ v The Queen [2020] ACTCA 41 (MZ v The Queen).
On an indictment dated 14 March 2019, the accused was charged with one count of sexual intercourse without consent, contrary to s 54(1) of the Crimes Act 1900 (ACT) (Crimes Act) (CC2018/10449). The particulars of the offence were that on 17 August 2018, the accused had engaged in sexual intercourse with the complainant without her consent and was reckless as to her consent.
In addition to the single count on the indictment, there was also the related transferred charge of administering a declared substance, contrary to s 37(1) of the Medicines, Poisons and Therapeutic Goods Act 2008 (ACT) (MPTG Act) (CC2018/12827). The particulars of this offence were that on 17 August 2018, the accused administered a declared substance (other than a pharmacy medicine, or pharmacist only medicine) to someone else, namely the complainant and he was not authorised to administer the substance to the complainant.
At the outset of the judge alone retrial on 7 April 2021, the accused was arraigned on the indictment and pleaded not guilty. On 9 April 2021, I found the accused not guilty on the single count on the indictment and reserved the reasons. I further reserved my decision in respect of the related transferred charge and confirmed that my reasons would be published at a later late. The reasons for both offences and my decision in respect of the transfer charge now follow.
Directions
Section 68C(2) of the Supreme Court Act requires that the judgment in a judge-alone trial include the principles of law applied and the findings of fact on which the Court has relied. Section 68C(3) requires that where a warning or direction is required by a Territory law to be given, or a comment to be made, to a jury in proceedings, the Court in a judge-alone trial must take the warning, direction or comment into account when considering its verdict. I approach these statutory obligations in accordance with the statements made in Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [6] and [52].
I adopt the following directions, set out by Nield AJ in R v Mulcahy [2010] ACTSC 98 (Mulcahy), in relation to my role in the present case. The directions have been adopted by Refshauge J in R v DM [2010] ACTSC 137 and Mossop J in R v Song (No 2) [2017] ACTSC 148; see also R v Connors (No 2) [2016] ACTSC 333 [6]-[18]; R v Droudis (No 14) [2016] NSWSC 1550 (Droudis (No 14)) and my decisions of R v Sutton [2021] ACTSC 37 (R v Sutton) and R v Garay (No 3) [2021] ACTSC 215. The relevant directions are as follows.
Onus and Standard of Proof
A criminal trial is governed by rules. These fundamental rules are designed to ensure that an accused person receives a fair trial according to law. The fundamental rules which govern a criminal trial are these.
The prosecution bears the onus to prove the guilt of the accused. The prosecution has asserted that the defendant has committed a criminal offence, therefore the prosecution must prove that the defendant committed that offence. The accused does not have to prove that he did not commit that offence.
The level or standard of proof required in a criminal trial is proof beyond reasonable
doubt. The accused cannot be found to be guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt.
The accused is presumed by law to be innocent of the offence with which he stands charged unless and until the evidence which I accept satisfies me beyond reasonable doubt of his guilt. If the evidence which I accept satisfies me beyond reasonable doubt of his guilt, then he loses the presumption of innocence and the appropriate verdict is guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of his guilt, then he remains presumed to be innocent and the appropriate verdict is not guilty.
Judge of Facts and Law
In addition to the fundamental rules which govern a criminal trial, the following rules are relevant. As I am the judge of the facts, as well as the judge of the law, I must bring an open and unbiased mind to the evidentiary material. I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will.
General Directions on Witnesses
I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the event about which the witness has given evidence.
I must determine the relevant facts according to the evidentiary material, considered
logically and rationally, without acting capriciously or irrationally. I may use my common sense, my individual experience and wisdom, in assessing the evidence given by the witnesses.
I am not required by any rule of law, logic or common sense to accept a witness wholly or to reject a witness wholly. I can accept everything that a witness has said if I
consider all of it worthy of acceptance, or I can reject everything that a witness has said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said that I consider worthy of acceptance and reject the rest of what that witness said as I consider it unworthy of acceptance.
The Accused
The accused did not give evidence at the first trial nor at the retrial. I direct myself that he was not obliged to. The fact that he did not give evidence does not affect the burden upon the prosecution to prove its case beyond reasonable doubt: see R v Graham [2017] ACTSC 267; see also Droudis (No 14) at [59]-[61].
The accused’s silence in court is not evidence against the accused, does not constitute an admission against the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used to assess whether the prosecution has proved its case beyond reasonable doubt: Azzopardi v The Queen [2001] HCA 25; 205 CLR 50 at [51]; MZ v The Queen at [47]-[48].
I adopt the foregoing directions in the present case.
Additional Directions particular to this matter
There are further legal directions that I must give myself as the fact finder determining this matter. I direct myself as a matter of law in the following matters in coming to a reasoned conclusion on the verdicts.
I direct myself that the prosecution must prove the essential elements of the charge beyond reasonable doubt. The prosecution, however, is not required to prove everything about which evidence has been given beyond reasonable doubt.
Directions pursuant to Evidence (Miscellaneous Provisions) Act 1991(ACT)
I direct myself pursuant to the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act):
1. A direction pursuant to s 57(2) that no adverse inference is to be drawn against the accused because an audiovisual recording of the complainant’s police interview (the complainant’s EICI) that was admitted in evidence and the evidence is not to be given more or less weight because the evidence was given in that way. Admission of a police interview audiovisual recording is a usual practice in the ACT.
2. A direction pursuant to s 72(2) that no adverse inference is to be drawn against the accused because the complainant and another prosecution witness gave evidence by audiovisual link.
3. A direction pursuant to s 49(5) that the complainant having a support person in the court while giving evidence is a usual practice in the ACT and that no adverse inference is to be drawn against the accused and the evidence is not to be given more or less weight because the support person was present.
4. A direction pursuant to s 80B(2) that the delay in making a complaint does not necessarily indicate that the allegation that the offence was committed is false and there may be good reasons why a victim of a sexual offence may hesitate in making a complaint about the offence. This direction arises as a question was asked of the complainant in cross examination that tended to suggest that there was a delay in making a complaint about the alleged offence: s 80B(1)(b).
5. A direction pursuant to s 80C that the complainant is not to be regarded as having consented to a sexual act because she did not say or do anything to indicate that the person did not consent, or did not protest or physically resist, or did not sustain a physical injury, or because on an earlier occasion she had previously consented to sexual activity with the accused.
6. A direction pursuant to s 80D that in deciding whether the accused was under a mistaken belief that the complainant was consenting to the sexual act, I may consider whether the belief was reasonable in the circumstances. I note that whether the mistaken belief was reasonable in the circumstances is a consideration that can be taken into account. It is not a requirement that the belief be reasonably held. The test remains whether the accused had an honest belief, not what a reasonable person would have known or believed in the circumstances: R v Lopez-Alonso (1996) 86 A Crim R 270 at 273; Pereira v Director of Public Prosecutions (1988) 63 ALJR 1 at 3; MZ v The Queen at [29].
Directions relevant to the offence of sexual intercourse without consent
Lack of Consent
The prosecution case is that the complainant was asleep when the sexual intercourse commenced and thus was not capable of consenting. In the circumstances of this case, I must be satisfied beyond reasonable doubt that the complainant was asleep when the sexual intercourse commenced. If I am not satisfied beyond reasonable doubt that the complainant was asleep when sexual intercourse commenced, then I would not find the element that the complainant was not consenting proved.
The fault element
The fault element within s 54(1) of the Crimes Act is that the accused was reckless as to whether the other person was consenting. Proof of knowledge or recklessness is sufficient to establish the element of recklessness. The common law test of recklessness applies as the recklessness provision contained within the Criminal Code 2002 (ACT) does not have application to an offence contrary to s 54(1) of the Crimes Act.
As outlined in MZ v The Queen at [24] and R v Sutton at [19], recklessness is established in one of three ways:
1. If the accused actually knew that the complainant did not consent; or
2. If the accused realised there was a possibility that the complainant did not consent and went ahead anyway; or
3. If the accused did not even consider the issue of consent and did not care whether the complainant consented.
To reach any one of those conclusions as to recklessness beyond reasonable doubt, the prosecution must exclude beyond reasonable doubt the possibility that the accused’s state of mind might have been that he genuinely though wrongly believed that the complainant was consenting to the sexual act. A genuine belief on the part of the accused that the complainant was consenting to the act of sexual intercourse is inconsistent with each of the requisite states of mind.
As noted above, in considering whether the prosecution has excluded the possibility that the accused genuinely believe there was consent, s 80D of the EMP Act permits me as the trial judge to take into account whether the belief was reasonable in the circumstances as one consideration informing this assessment. Whether the mistaken belief was reasonable in the circumstances is a consideration that can be taken into account. It is not a requirement that the belief be reasonably held. The test remains whether the accused had an honest belief in consent: MZ v The Queen at [29].
Directions derived from the case law
Liberato Direction
I further direct myself in accordance with Liberato v The Queen (1995) 159 CLR 507 (Liberato) at 515. I direct myself in the following terms concerning the accused’s interview with police:
When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.
I also have regard to the High Court decision concerning the Liberato direction, De Silva v The Queen [2019] HCA 48; 268 CLR 57 at [12] and direct myself as follows:
1. If I believe the accused’s account in his interview with the police I must acquit;
2. If I do not accept that account but consider that it might be true, I must acquit;
3. If I do not believe the accused’s account in his interview with the police, I should put that account to one side. The question will remain: how the prosecution, on the basis of the evidence that I accept, proved the guilt of the accused beyond reasonable doubt?
Murray Direction
I direct myself in accordance with R v Murray (1987) 11 NSWLR 12; 30 A Crim R 315 (Murray) that the complainant’s evidence should be scrutinised with care.
Markuleski Direction
I note that there are two charges before the court: the charge on the indictment of sexual intercourse without consent, and the transferred related charge of administering a declared substance. I direct myself in accordance with R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 (Markuleski) that if I have any reasonable doubt about the evidence of the complainant in relation to one of the charges, I must consider what effect, if any, that doubt causes me to have about evidence on the transferred related charge.
Complaint Evidence Direction
I also direct myself in relation to complaint evidence and the way in which it may be used: s 66 Evidence Act 2011 (ACT) (Evidence Act).
The prosecution relies upon what the complainant said to her mother, the 000 operator, and to Dr Martin about the alleged sexual intercourse without consent and the placing powder in her mouth.
It is for me to decide whether the complaints were made and what the contents of those complaints were. If I accept that the complaints were made and that evidence is consistent with the evidence of the complainant, then I can use the evidence of what was said in the complaint as some evidence that the sexual intercourse without consent and the administering of a substance did occur. That is, I can use it as some evidence additional to the evidence given of that incident by the complainant.
I am entitled to use what was said in those complaints as evidence of what the complainant alleges against the accused. I am entitled to find that the complaints were made at a time and in a manner that would indicate that the allegation was reliable, that is, that the allegation is less likely to have been fabricated by the complainant and more likely to be accurate.
It is a matter for me whether I draw that conclusion in this case and so treat the complaints as evidence of the alleged sexual intercourse without consent and administering a substance by the accused in addition to the evidence that was given about it during the trial. If I do use it as some evidence of the offences, what weight I give those complaints is a matter for me.
Secondly, the prosecution asserts that the evidence of complaint also has another purpose. The prosecution contends that the fact the complainant raised the allegation against the accused at the time and in the manner she did would lead me to accept her evidence. In other words, it makes the complainant’s evidence more believable than if she had not raised the allegation as she did
I underline that the fact that someone says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable merely because it is repeated on one or more occasions: R v Masina(No 3) [2020] ACTSC 154 at [25] (R v Masina (No 3)).
Direction as to Lies
A direction in relation to lies is appropriate in accordance with Edwards v The Queen (1993) 178 CLR 193 (Edwards) in relation to what the accused said during his record of interview.
The prosecution relies on the accused stated in his record of interview that he said to the complainant prior to the sexual intercourse, “do you want?” and the complainant replied words to the effect that she did want it. The conversation is not captured on the audio recording made by the complainant during the alleged incident. The prosecution also relies on the accused stating in the interview that the complainant requested sexual intercourse and wanted sexual intercourse. The prosecution says that these statements are lies because no such verbal utterances can be heard on the audio recording and rely on these statements as lies evincing a consciousness of guilt.
In Edwards at 210-211, it was stated that:
A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg. v. Lucas (Ruth), because of “a realization of guilt and a fear of the truth”.
(citations omitted)
The first issue is whether I accept what the prosecution deems as lies are lies. A lie is to say something untrue, knowing at the time of making the statement that it is untrue. If a person says something which is untrue, but does not realise at the time that it is untrue, then that is not a lie. The person is simply mistaken or perhaps confused. Even if the person later comes to realise that what they said was incorrect, that does not transform the statement into a lie. To be a lie, the person must say something that the person knows, at the time of making the statement, is untrue.
If I find that the accused’s statements in the interview with police were lies, then I must direct myself about the care with which I must approach the task of deciding what significance, if any, it is. I may take the lies into account as evidence of the accused’s guilt but can only do that if I find two further matters:
1. The lies must relate to an issue that is relevant to the offence the prosecution alleges that the accused committed. It must relate to some significant circumstance or event connected with that alleged offence. The prosecution says it is relevant because it goes to the issue of whether there was a discussion about consent prior to sexual intercourse commencing.
2. I must find that the reason the accused told the lies is because he feared that telling the truth might reveal his guilt in respect of the charge he now faces. In other words, the accused feared that telling the truth would implicate him in the commission of the offence for which he is now on trial.
I note that if I were to find what the accused said to police to be lies, this cannot prove his guilt on its own. It can be considered along with all of the other facts that the prosecution relies upon and which I find established on the evidence in considering whether the prosecution has proved its case beyond reasonable doubt.
I must remember, however, that people do not always act rationally, and that conduct of this sort, that is, telling a lie, may sometimes be explained in other ways. A person may have a reason for lying quite apart from trying to conceal his guilt. For example, a lie may be told out of panic; to escape an unjust accusation; or to avoid a consequence unrelated to the offence.
In the alternative to an Edwards purpose, the prosecution rely on what the accused said during the record of interview as a lie that can be used for the limited purpose of assessing the credibility of the accused, pursuant to Zoneff v The Queen [2000] HCA 28; 200 CLR 234 (Zoneff).
In accordance with Zoneff, I direct myself as to the alleged lie the accused told during the record of interview. Whether the accused did in fact lie is a matter for me to decide. To decide that a lie was (or multiple lies were) told, I must be satisfied that the accused said something that was untrue and that at the time of making the statement, he knew it was untrue. Saying something that is untrue by mistake or out of confusion or forgetfulness, is not a lie. If I decide that a lie or lies were told, I cannot use that fact in support of a conclusion that the accused is guilty. A lie for a Zoneff purpose cannot prove the accused’s guilt and nor can a lie be used in conjunction with the other evidence that the prosecution relies on to prove the accused’s guilt. The only use I can make of the fact that the accused told a lie or lies is in my assessment of his credibility. If I am satisfied that the accused did lie, then that may be considered by my as having a bearing upon whether I believe the other things he has said.
Consciousness of Guilt Direction
The prosecution rely on the accused administering a substance as evidence evincing a consciousness of guilt on the part of the accused in relation to the sexual intercourse without consent.
The first issue is whether I find that the accused did engage in that conduct, that is, he put some substance I the complainant’s mouth, and that substance was Zopiclone or Temazepam or a combination of both, then I must direct myself about the care with which I must approach the task of deciding what significance, if any, this conduct on the part of the accused has. I may take this conduct into account as evidence of the accused’s guilt of the alleged sexual intercourse without consent but can only do that if I find two further matters:
1. The conduct must relate to an issue that is relevant to the commission of the sexual assault offence the prosecution alleges that the accused committed. It must relate to some significant circumstance or event connected with that alleged offence. The prosecution says it is relevant because it goes to the issue of whether the complainant consented to sexual intercourse. The prosecution says this is because there is an inference available that the accused administered the substance in the hope that its effect would interfere with the complainant’s memory of what happened some 10 minutes before.
2. I must find that the reason the accused engaged in this conduct is because he was attempting to prevent his guilt in respect of the sexual intercourse without consent form being revealed, that is, he engaged in the conduct because he feared he would be implicated in the commission of the alleged offence of sexual intercourse without consent.
I note that if I were to find that the accused engaged in the conduct of administering the substance, this cannot prove guilt on the sexual intercourse without consent charge on its own. It can be considered along with all of the other facts that the prosecution relies upon and which I find established on the evidence in considering whether the prosecution has proved its case beyond reasonable doubt.
I must remember, however, that people do not always act rationally, and that conduct of this sort, may sometimes be explained in other ways. The accused may have had a reason for engaging in this conduct quite apart from trying to conceal his guilt, for example, out of panic; to escape an unjust accusation; or to avoid a consequence unrelated to the offence.
If I think that the conduct may have been engaged in for some reason other than to avoid being implicated in the commission of the offence for which the accused is now on trial, then it cannot be used as evidence of is guilt. In that case, I should put it to one side and focus my deliberations on the other evidence in the case.
Good Character Direction
The police informant gave evidence that the accused does not have any criminal convictions. I direct myself in relation to good character I must take the accused’s good character into account in his favour in two ways. Firstly, I must take the accused’s good character and reputation into account in his favour on the question of whether or not the prosecution has proved his guilt beyond reasonable doubt. Secondly, I must take the accused’s good character and reputation into account in his favour on the question of whether or not to accept what the accused has said about the prosecution’s allegation against him. The accused’s good character and reputation does not provide him with a defence. People of good character and reputation do commit criminal offences. Every offender has committed a first offence and, before doing so, was a person of good character and reputation. The fact that the accused is a person of good character and reputation cannot prevail over, or provide a defence to, evidence of guilt, if the prosecution has proved beyond reasonable doubt that the accused is guilty of the offence: R v Sutton at [380].
Expert Evidence Direction
I direct myself in relation to the expert evidence in relation to the evidence of Dr Sarah Martin and the evidence of Ms Ayesha Seymour, the latter was led through the informant Mr Joel Kirby. I accept the evidence of the expert witnesses and note there was no dispute as to acceptance of their expertise: see R v Tang [2019] ACTSC 4 at [152]-[156] and s 79 Evidence Act.
Elements of the Offences
Sexual Intercourse without Consent
Section 54 of the Crimes Act provides as follows:
54 Sexual intercourse without consent
(1) A person who engages in sexual intercourse with another person without the consent of that other person and who is reckless as to whether that other person consents to the sexual intercourse is guilty of an offence punishable, on conviction, by imprisonment for 12 years.
(2) A person who, acting in company with any other person, engages in sexual intercourse with another person without the consent of that other person and who is reckless as to whether that other person consents to the sexual intercourse is guilty of an offence punishable, on conviction, by imprisonment for 14 years.
(3) For this section, proof of knowledge or recklessness is sufficient to establish the element of recklessness.
In a criminal trial, the prosecution must prove the essential elements of the charge beyond reasonable doubt.
The elements of the offence are:
(a)the accused engaged in sexual intercourse with another person;
(b)the accused intended to engage in sexual intercourse with another person;
(c)the other person did not consent to the sexual intercourse; and
(d)the accused was reckless as to whether the other person was consenting.
At common law, a person can be reckless as to another person’s consent in circumstances where a person realised the risk that the other person was not consenting and proceeded anyway (advertent recklessness), or where a person failed to consider whether the person consented (inadvertent recklessness). Both forms of recklessness are encompassed within s 54: see, for example, R v Masina (No 3) at [31], citing Banditt v The Queen [2005] HCA 80; 224 CLR 262 (Banditt) and R v Stevens (No 2) [2017] ACTSC 296.
Administer a Declared Substance
Section 37 of the MPTG Act states the following:
37 Administering certain declared substances
(1) A person commits an offence if –
(a) the person administers a declared substance (other than a pharmacy medicine or pharmacist only medicine)1; and
(b) the person is not authorised to administer the substance to the other person.
Section 25 defines a “declared substance” as a medicine. The definition of a “medicine” contained with s 11(1) includes a prescription only medicine. Section 11(2) defines a “prescription only medicine” as a substance to which schedule 4 of the Standard June 2018 (Cth) applies. Zopiclone and Temazepam are listed in schedule 4 and are therefore defined as “prescription only medicine”: s 11(2). The definition of a “regulated substance” includes a medicine: s 10. Dealing with regulated substance includes administering a substance: s 19(1)(e). Section 20(1) sets out when a person is authorised to deal with a medicine,
Part 11.2 of the MPTG Act contains evidentiary provisions. In that part, s 178 provides as follows:
178Evidence—authorisations under Commonwealth and State laws
(1)This section applies to the prosecution of a person for an offence against chapter 4 (Offences relating to regulated substances) or chapter 5 (Offences relating to regulated therapeutic goods) if, to prove the offence, it is necessary to prove that at a particular time the person was not authorised to deal with a regulated substance or therapeutic good in a particular way.
(2)Without evidence to the contrary, the person is taken not to have been authorised under a Commonwealth or State law to deal with the regulated substance or regulated therapeutic good in that way at the particular time.
(3)To remove any doubt, a reference in subsection (2) to a State law does not include a territory law.
Section 180 is also included within pt 11.2 and states:
180Certificate evidence etc
(1)This section applies in relation to a proceeding for an offence against this Act.
(2)A document that appears to be a copy of a licence, authorisation or approval under this Act is evidence of the issue or giving of a licence, authorisation or approval.
(3)A certificate that appears to be signed by or on behalf of the chief health officer, and that states any of the following matters, is evidence of the matters:
(a)that there was, or was not, in force a licence, authorisation or approval in relation to a stated person or premises;
(b)that a licence, authorisation or approval authorised or required or did not authorise or require a stated dealing at a particular time and place;
(c)that a licence, authorisation or approval was or was not subject to stated conditions;
(d)that a substance is or is not a regulated substance;
(e)that a regulated substance belongs to or does not belong to a particular kind of regulated substances;
(f)a thing is or is not a regulated therapeutic good;
(g)the receipt or otherwise of a notice, application or payment;
(h)that an amount of fees or another amount is or was payable under this Act by a stated person.
NoteFor evidentiary certificates by authorised analysts, see the Public Health Act 1997, s 135A.
(4)A certificate that appears to be signed by or on behalf of the chief health officer, and states anything prescribed by regulation, is evidence of the thing.
(5)A certificate mentioned in subsection (3) or subsection (4) may state anything by reference to a date or period.
(6)A court must accept a certificate or other document mentioned in this section as proof of the matters stated in it if there is no evidence to the contrary.
The elements of the related transferred offence are:
1. The accused administered a substance to someone else;
2. The accused intend to administer a substance to someone else;
3. The substance administered was a declared substance;
4. The accused was reckless as to whether the substance was a declared substance;
5. The accused was not authorised to administer a substance to the other person; and
6. The accused knew that he was not authorised to administer a substance to the other person.
The Prosecution Case
Broadly, the prosecution case was that the accused and the complainant had met in 2004 and were married in 2012. In April 2018, the accused and the complainant were living in a home in Crace with their two children, a daughter aged two and a son aged six. The complainant’s mother and father were also residing at the same property in Crace. In the months leading up to the alleged offences, the relationship between the accused and the complainant was breaking down and there had been discussions about divorce since as early as June 2018. Since moving into the Crace property in April 2018, the complainant and the accused had been occupying separate bedrooms, with the accused having taken the master bedroom and the complainant sleeping in her daughter’s bedroom and sharing her daughter’s bed.
In the days leading up to the alleged offences in the early hours of 17 August 2018, the accused had received a letter confirming that the divorce was impending and that lawyers would have to become involved. After receiving that letter, the accused had been acting strangely to the complainant and had become aggressive. The accused had attended an appointment with his family law solicitor on 16 August 2018 and when he returned to the family home, he had a conversation with the complainant to the extent that it was not going to be an amicable divorce, and that it was going to be difficult for the complainant.
On the evening of 16 August 2018, the complainant went to bed at around 10:00PM, sleeping with her daughter in her daughter’s bed. The complainant was wearing underwear and a soft elastic grey long sleeved shirt and underwear. Over the course of the next few hours after the complainant had gone to bed, the accused came into their daughter’s bedroom on a number of occasions. Sometimes the accused would turn the light on in the bedroom or would use the torch on his mobile phone to shine around the room. On one occasion, the complainant asked the accused why he kept coming into the bedroom and the accused responded that he was coming in to check on their daughter. On other occasions, the accused said he wanted to discuss the divorce. The complainant told the accused that she did not want to have such discussions in the middle of the night.
There came a point where the complainant turned on the audio recording function on her iPhone because she had concerns about what the accused was doing. The recording went for approximately 80 minutes. The complainant was then asleep but then woke up with the accused on top of her, engaging in penile vaginal intercourse with her. At this point, the complainant was naked and she told the accused to stop. The accused did not stop when asked and the complainant was then able to push him off of her. The accused ceased engaging in sexual intercourse with the complainant and proceeded to leave the room. The accused and complainant’s daughter remained sleeping in the same bed during this time.
The complainant remained in the bed and then awoke to the accused’s finger being in her mouth. The complainant could feel some sort of substance on the accused’s finger that tasted bitter. The complainant went downstairs to where her mother slept and told her about the sexual intercourse and that the accused had tried to put a powder in her mouth.
The Defence Case
Shortly after the complainant spoke to her mother, police were telephoned and arrived at the home. The accused was arrested and taken to the ACT regional watchhouse. The accused participated in a record of interview and told the police that he had engaged in penile vaginal sexual intercourse with the complainant. The accused maintained that the sexual intercourse was consensual and that it was instigated by the complainant. The accused denied that the complainant had been asleep. On the accused’s version the complainant was awake and involved in the sexual activity before a sudden change of mind.
On the accused’s case, the prosecution was unable to prove the elements of the related transfer charge beyond reasonable doubt.
No witnesses and no evidence were called for the accused.
Evidence
The Complainant
Evidence-in-chief Interview 17 August 2018
The complainant participated in an evidence-in-chief interview on 17 August 2018 at 9:08AM, the same day as the alleged offending. The complainant informed police that she went to go to sleep at around 10:00PM because she was tired. The complainant had had a long day as she had woken up early due to her son wetting his pants. The complainant and accused’s daughter was also in the same bed, as was the usual practice. The complainant went to bed in a grey long sleeve pyjama shirt and grey underpants. As soon as she fell asleep, the accused walked into her room and was using the torch on his mobile phone to look around the room, which caused the complainant to wake up. The complainant then said to the accused, “hey, why are you here?” and the accused stated that he came to look at their daughter. The first time the accused entered the bedroom, the complainant told him “you need to go back to your room”. The complainant told police that she found this behaviour to be pretty scary, as it was occurring in the middle of the night and she was suddenly discovering the accused standing in the room with his torch on.
The second time the accused entered the bedroom, the complainant stated that the accused had said he was checking on their daughter because she did not have a blanket on. The complainant had responded that it was pretty warm and noted that the heater was on. The complainant also informed the accused that their daughter had a rash and would feel itchy if it was too hot in the bedroom. The accused did not respond and remained standing in the bedroom. On the second occasion the complainant said to the accused “if you keep doing this, I’ll call the police”.
The complainant noticed that the accused was standing next to her side of the bed, rather than the side where her daughter was. The complainant asked the accused to leave the room but the accused entered on at least three occasions. The complainant said that every time she had to force the accused to leave the bedroom.
On the third occasion after asking the accused to leave, the accused responded that he wanted to have a chat with the complainant. The complainant said she did not want to talk in the middle of the night, that they could talk tomorrow and can talk via lawyers. The accused then seemed shocked that they were to divorce and asked her if she was serious. On this occasion, the accused turned on a lights on a table in the bedroom. The complainant told the accused to go back to his room and he left. The complainant then felt scared, so she commenced an audio recording on her iPhone. She wanted to make a video recording, but the room was too dark. The complainant noted that she was not sure if she commenced the audio recording after the second or third occasion when the accused entered the bedroom. The complainant placed her iPhone on the bedside table after she commenced the recording.
The complainant noted that she thought the accused had come into the bedroom on four or five occasions before the alleged incident occurred. She stated the next occasion he only came in for 20 seconds, again wanting to discuss the divorce. The complainant responded that they were not going to talk about it then.
The complainant stated that she then fell asleep and the next time she awoke, the accused was engaging in penile vaginal sexual intercourse with her. The complainant was lying on her back and the accused was lying on top of her. The complainant stated that the accused was heavy and that she was unable to move the bottom half of her body under his weight. The complainant told police she was scared at this point and asked the accused what he was doing. She said she tried to push him away, but he did not stop the first time. The complainant then pushed him harder on the shoulders and said, “go away”. During the interview, the complainant stated that first she said “go away” then pushed the accused, but also said the sequencing was that she pushed him on the first occasion, then said “go away” and pushed him a second time. The complainant said that she pushed the accused on the second occasion using her whole arms. The complainant stated that she had said “go away” multiple times.
The accused then stopped, picked some clothes up off of the floor and walked out of the room. The complainant stated that the accused had been naked during the incident, and picked his own clothes up off of the floor. The accused had been wearing black underpants and a black jumper with a zip. She said that she found her clothes, the pyjama top and underpants, under the blanket on the bed and got dressed after the accused left the room. The complainant informed police that at this point, she was upset and felt dirty. She noted that the lights on the bedside table were on and that she was naked when she woke up. The complainant stated that when she woke up during the sexual intercourse, it lasted five to ten seconds at most. The complainant stated that her daughter remained asleep in the bed throughout the incident and did not wake up at any point.
The complainant told police that she was then half-asleep, and the accused entered the room again. She stated that the accused touched her lip with something that looked like a finger but had rough skin. The accused then inserted it into her mouth and the complainant then felt a bitterness on her tongue. The complainant fully awoke and accused the accused to go away. The complainant asked the accused, “what did you feed me?” or “what did you put into my mouth?” in Mandarin.
The complainant entered the bathroom and observed in the mirror that there was something on her teeth, remarking that she could see white dots on her front teeth like wet powder. She then got water from a red mug next to her bed, using the water to rinse her mouth and spit back into the mug. The complainant went to the bathroom with the mug and then went to wake her parents up. The complainant told her mother that the accused had sex with her and had put something in her mouth. The complainant stated that she did not tell her mother what happened in detail. The complainant then called the police. After calling the police, the complainant went into the kitchen and spat into three glasses as she could still taste the bitterness. The complainant stated that the police arrived 10 minutes after she called 000.
The complainant stated that prior to the events on 17 August 2018, in the recent days, her lawyer had sent him a letter. The complainant had said to the accused, “let’s divorce peacefully”. The accused had said in response, “I’m not going to do it, I’m going to sue. Even if there is $500,000,000 of the lawyer fees, I’m still going to pay for it”. The complainant informed police that the accused became really aggressive after having received the letter from the lawyer about the divorce. The accused had told the complainant that he was going to obtain an order to evict her parents from the family home and stated that it was his house and that he would not be the one to move out.
The complainant noted that if nothing happened on the audio recording, she will just delete it. The complainant informed police that she commenced the recording to either see if they were going to have a serious conversation or if she was afraid he was going to pose a danger to her or the children.
When asked by police whether the accused had ever slept in the bed with the daughter and the complainant, the complainant stated that there had probably been two or three nights, most likely in June 2018, where she had awoken to discover the accused sleeping in the corner of the bed, below their daughter. The complainant would wake him up and then ask him to return to his bedroom.
The complainant confirmed that the accused was previously a public servant and they ran small businesses. She stated that the accused had since resigned as a public servant and was doing a course to become a builder. The complainant noted that she was the one responsible for running the businesses.
Evidence at First Trial 8-9 October 2019
The complainant gave evidence at the first trial over two days. The complainant gave evidence with the assistance of a Mandarin interpreter at times. During the complainant’s evidence, her evidence-in-chief interview was played before the jury. The complainant’s evidence at the first trial was recorded as an audiovisual recording pursuant to s 69(2) of the EMP Act. The recording of the complainant’s evidence was admissible in the retrial of the accused: s 69(3) EMP Act. The complainant was not called to give further evidence at the retrial.
During the complainant’s evidence-in-chief at the first trial, the counsel for the prosecution played the audio recording that the complainant had made. The complainant also identified photographs of the grey long sleeve pyjama top she had been wearing, as well as photographs of her underwear and the accused’s underwear. The complainant confirmed that she was examined by Dr Sarah Martin on 17 August 2018 at about 5:30AM and provided blood and urine samples, as well as an oral washing sample.
Counsel for the accused at the first trial played the recording of the 000 call the complainant made. During the 000 call, the complainant told the operator that her husband “tried to slip [her] something in [her] water and he was trying to rape [her]”. The complainant gave evidence that she did not mean to say that, that she might have been very scared and that English was not her first language. The complainant stated that what she meant was that she spat into the water. She said that she was really scared and thought that the accused might have put poison in her mouth.
The complainant confirmed in cross-examination that she was naked during the sexual intercourse. The complainant repeatedly denied that the pyjama top remained on and denied that her underpants were down around her lower legs. The complainant confirmed that the three buttons on the pyjama top remained done up but that the buttons did not need to be undone to enable the top to be removed, as the top is very elastic and really soft.
The complainant was asked in cross-examination about the café businesses that she and the accused owned at the time of the alleged offences. The complainant gave evidence that they owned a café and two other cafes that are franchises. The complainant stated that the accused had said he was going to sell one of the franchises so that she would not have a job and become reliant on him. The complainant denied that the funds the accused’s parents had given them as a loan was in excess of $1,000,000. The complainant gave evidence that the accused had a keen interest in fish tanks and that it was an expensive hobby. The complainant stated that she and the accused first started talking about divorcing in May or June of 2018.
It was put to the complainant that she had not said to the accused that she would call the police if he kept coming into the bedroom, as it could not be heard on the audio recording. The complainant said she could not recall when giving evidence but that she was telling the truth when she spoke to police to give her evidence-in-chief interview. The complainant gave evidence that the accused’s references to making court “nasty” for her were said before she commenced the audio recording.
The complainant gave evidence that she became scared after the accused was chatting with her. She stated that she did not go to her parents because they were sleeping downstairs. The complainant gave evidence that she was planning to move downstairs in the house the next day. The complainant denied that the accused had not been threatening her before she commenced the recording. She referred to the accused saying he will obtain a court order to remove her parents from the house, as well as making her move out of the house.
The complainant was asked why she did not call the police, despite telling the accused she would call the police if he kept entering. The complainant gave evidence that she did not need to call the police as she thought he would stop.
It was put to the complainant that she was awake when the sexual intercourse commenced. The complainant reaffirmed that she was asleep. The complainant also confirmed that she had pushed the accused twice and the accused had stopped the sexual intercourse after the second push. The complainant said she was really scared after the incident and also very tired.
Counsel for the accused put it to the complainant that she had cuddled up to the accused before the sexual intercourse had commenced and that there was no talking in the lead up. The complainant denied this proposition and further denied that she enjoyed the sexual intercourse. It was put to the complainant that she had cuddle up to the accused with a view of indicating to him that she wanted to have sex and that she could be heard making noises that indicated she was enjoying herself. The complainant further denied this. The complainant gave evidence that she tried to fall back asleep after the sexual intercourse but she was only half asleep.
The complainant confirmed that she was fully awoken by the accused putting something into her mouth that left a bitterness on her tongue. The complainant accepted that the accused could be heard on the audio recording denying putting anything in her mouth. It was put to the complainant that the accused did not put anything in her mouth and the complainant denied this.
The complainant confirmed she had used the further three water glasses to rinse her mouth. She accepted that if something was in her mouth, there would be traces of it in the three water glasses or the red mug. The complainant was asked why she did not call an ambulance if she was worried she had been poisoned. The complainant stated that she believed police were the appropriate first responders.
The complainant was asked when she first realised that the police would be interested in the three water glasses and the red mug. The complainant gave evidence that she realised immediately she should save the items so that she could find out what had been put in her mouth. The complainant denied the suggestion that she was attempting to set her husband up.
It was put to the complainant that she was fabricating both allegations to further her own position in family court proceedings. The complainant denied that she had fabricated her allegations and further denied that she was setting her husband up.
Audio Recording
The audio recording made by the complainant was tendered in evidence at both the first trial and the retrial, along with a transcript as an aide memoire. The transcript has a reference to “M” and “F” indicating male and female voice respectively. The audio recording is in Mandarin whereas the transcript is translated into English. Relevant portions of the transcript are as follows:
19:27
F: What’s up again? I’m sleeping.,
M: I wrote a letter… (unclear whispering)… we sell the store okay?
19:45
M: Okay?
19:49
F: You sell yours, okay? I (unclear)
M: It’s impossible.
F: Whatever. There is no point talking about this.
M: It’s impossible. You know.
F: I’m going to sleep. Do not disturb me. Please go out.
M: It’s impossible. I’m just telling you. Okay?
20:14
M: It’s impossible. I’ll also notify [name of café franchise]. Alright?...(unclear)
…
26:17
F: What are you doing again?
M: There is one sentence that I want to ask you
F: I want to sleep.
M: No you can’t.
F: Please do not enter my room, okay?
M: No. Well…
F: I want to sleep
M: September. Pay the loan in September. You understand? The loan in Shanghai.
F: How?
M: I’ll remit all the money directly to my dad. Okay?
F: So you give the money to your dad directly.
M: Yeah.
F: how much have you got to remit to him?
M: I’ll remit 100,000.
F: How come you have 100,000 at hand now?
M: There is 100,000 in that.
F: That part hasn’t paid GST yet.
M: GST is your own business.
F: Still waiting… (unclear)… dare you touch that.
M: So what?
F: (sneering)
M: (distant voice) So what?
…
46:26
F: What now?
M: I’m just having a look at my daughter.
F: Huh?
M: I’m just having a look at my daughter.
….
49:30
F: What are you up to?
M: …(unclear)
F: What are you up to?
M:… (unclear)
F: What are you up to?
M: You have a look yourself. Her is not covered properly.
F: She doesn’t want to be covered.
M: Why not?
F: She is feeling itchy. She will scratch that.
M: What’s there to feel itchy?
F: Can you not enter in the middle of the night? Why do you scare others?
M: (unclear)
…
1:08:03
(FEMALE MOANING)
F: Walk away, walk away, walk away, walk away, walk away, walk away (moaning)… walk away… (moaning)… walk, walk… (moaning)… walk away, walk away, let go of me… (unclear)… what are you doing? What’s wrong with you?
1:08:47
(MALE WHISPERING)
…
1:18:06
F: Hmm.. what are you doing?
M: I have a look at her. She is… (unclear)…again.
F: What did you feed me?
M: I didn’t feed you anything. Feed what? Feed what? Feed what?
F: What are you doing?
M: I didn’t move just now.
F: What did you just feed me
M: I’ve nothing. Feed you anything? You think I have too much time? Feed you anything…
(SOUND OF SLURPING DRINK)
F: Why thirsty? [uncertain interpretation]
M: Let me have a look. Let me have a look.
F: Walk away, walk away.
(SOUND OF WALKING)
F: You… don’t come in. Go out right now.
M: I go out. I go out.
The Complainant’s Mother
Evidence at first trial 10 October 2019
The complainant’s mother gave evidence at the first trial on 10 October 2019 and was assisted by a Mandarin interpreter. The complainant’s mother gave evidence on this occasion that the complainant woke her up after midnight on 17 August 2018 by knocking on the door. The complainant’s mother went to the complainant and asked her what was wrong, the complainant responded by saying that the accused had raped her. The complainant also said the accused had stuffed something in her mouth and it tasted bitter.
The complainant’s mother stated that the complainant was shaking and crying during this conversation. The complainant’s mother gave evidence that the complainant had said she had already reported the matter to the police. The conversation was only brief and they then went to the living room to wait for the police.
The complainant’s mother gave evidence that during the afternoon of 18 August 2018, she was opening the curtain the children’s toy room before she accidentally spotted items on the lawn outside. The complainant’s mother confirmed she picked up the items and put them into the same plastic food bag. The items included a blister pack of medication and a Dewalt electrical tag or label.
The complainant’s mother stated that after she put the items in the plastic bag, she called her daughter on her phone. She said her daughter then called her back to say the police will come over later to collect the bag. The complainant’s mother confirmed that the bag was collected by police.
In cross-examination, the complainant’s mother gave evidence that she did not speak to the complainant before she placed the items into the plastic bag. The complainant’s mother confirmed that she did not take a photograph of the items in situ, but took a photograph after the items had been secured in the plastic bag. The complainant’s mother confirmed she had taken the photographs first, before calling the complainant.
Counsel for the accused then questioned the complainant’s mother on the complaint the complainant had made to her. The complainant’s mother was asked whether she said to the complainant “how come you didn’t wake up?” when the complainant said the accused had raped her. The complainant’s mother said she did not ask the complainant that and denied saying it.
The complainant’s mother was asked whether the complainant answered the query of why she didn’t wake up by saying the accused “has been pressing some powders into my mouth and then he was on top of me”. The complainant’s mother said that the complainant did not describe the incident in such detail and that she did not ask the complainant for further information. The complainant’ mother stated that the complainant had only said she had been raped and had things stuffed in her mouth. The complainant’s mother gave evidence that if that conversation between her and the complainant was in her record of conversation with the police, perhaps it was due to the interpreter doing a subpar job.
During the cross-examination of the complainant’s mother, the audio of her record of conversation was played. In the record of conversation, the complainant’s mother says that the complaint first said, “I have reported to the police…because [the accused] has raped me”, the complainant’s mother then asks, “how come you didn’t wake up?” and the complaint responds, “he has been pressing some powders into my mouth and then he was on top of me”. The complainant’s mother stated that she could not remember all of the details when she had to give evidence. The complainant’s mother also gave evidence that she perhaps did not pay much attention in the way she described the conversation she had with the complainant to police. The complainant’s mother stated that the complaint had said the accused raped her and put stuff in her mouth.
Evidence at retrial 8 April 2021
The complainant’s mother gave further evidence at the retrial and was again assisted by an interpreter. In cross-examination, the complainant’s mother gave evidence that the items on the lawn were discovered when the complainant was not at home. The complainant’s mother said she could not recall and could not remember whether she called the complainant on the complainant’s mobile to notify her about the discovered items. The complainant’s mother confirmed that she sent a photograph to the complainant’s mobile at 12:42PM and stated that she had used her husband’s phone to send the photograph through WeChat.
The complainant’s mother stated that she had sent the photograph because the complainant was not yet home at that time. The complainant’s mother further stated that after speaking with the complainant, the complainant had said the police would come and collect the items. The complainant’s mother further stated that the complainant was not still not home by the time the police arrived to collect the items.
It was put to the complainant’s mother that the complainant had been dropped home by the police at approximately midday. The complainant’s mother stated that she could not remember. It was further put to the complainant’s mother that the complainant had been the one to call police at 12:05PM using her mother’s phone because the complainant’s phone was still with the police. When asked whether the complainant was at the house before the photograph was texted to her, the complainant’s mother stated that she actually discovered the items after her daughter came home. The complainant’s mother confirmed that she had told police a few days after the incident that the complainant was not home when the items were discovered.
Dr Sarah Martin
Evidence at first trial 10 October 2019
Dr Sarah Martin gave evidence at the first trial on 10 October 2019. A transcript of her evidence at the first trial was tendered at the retrial and Dr Martin was not recalled. Dr Martin confirmed that on 17 August 2019 at approximately 4:30AM, she medically examined the complainant with the assistance of forensic clinical nurses.
Dr Martin referred to a medical report she authored and gave evidence that the complainant had told her that just after midnight on 17 August 2018, she had been sexually assaulted by the accused. The complainant had told Dr Martin that at the time of the incident, she was sleeping next to her daughter in her daughter’s bed. The complainant had told Dr Martin that she was asleep and when she woke up, the accused was having sex with her.
Dr Martin confirmed she clarified “sex” with the complainant to be penile/ vaginal sexual intercourse. The complainant told Dr Martin that she kept telling the accused to “go away” and that he had stopped after a short while and went back to his own bedroom. The complainant stated that the accused returned five to 10 minutes thereafter and tried to touch her lips. The complainant said she could feel something insider her mouth like a finger and that it felt a bit rough, unlike skin but she was not sure. The complainant said that it went between her lips and her gums inside her mouth, and she could taste bitterness. The complainant told Dr Martin that she proceeded to get up and spit into the water cup next to her bed and then she went to the bathroom where she could see bits of white on the front of her teeth, which she washed off rinsing with water a few times. The complainant said she woke her mother who lived at the same house and they then called the police.
Dr Martin gave evidence that she had asked the complainant whether she had been held down or whether there was an attempt to hold her down. The complainant told her that the accused held her by her upper arms when he was on top of her. The complainant said she tried to push him off when he was having sex with her. The complainant also said she attempted to push the accused off when she felt something inside her mouth. Dr Martin confirmed that she did not observe any injuries on the complainant and confirmed she took forensic samples from the complainant.
Dr Martin confirmed that Zopiclone is a form of sleeping tablet and a prescription only medication. Dr Martin further confirmed that Temazepam is a benzodiazepine, which is also a sleeping tablet and prescription only medication. When asked about Imovane, Dr Martin noted that she believed it to be a brand name for a medication but she was unfamiliar with it.
In cross-examination, Dr Martin was given the opportunity to check what Imovane was. Dr Martin gave evidence that Imovane was a brand of Zopiclone.
Senior Constable Victor Yanes
Evidence at retrial 8 April 2021
Senior Constable Victor Yanes (SC Yanes) gave evidence at the retrial. SC Yanes attended the home of the complainant and the accused at approximately 1:50AM on 17 August 2018, responding to the complainant’s call made to the 000 operator. SC Yanes was accompanied by First Constable Kassandra Dimes (FC Dimes). When they arrived at the residence, SC Yanes noticed that the complainant was visibly upset. The complainant was crying and appeared distraught.
SC Yanes gave evidence that the complainant was wearing a blue set of pants and a brown jumper when police arrived. SC Yanes confirmed that he entered the house, knocked on the door of the master bedroom, and identified himself and FC Dimes as police officers to the accused. SC Yanes then proceeded to arrest the accused on suspicion of having committed an offence of sexual intercourse without consent. SC Yanes cautioned the accused at the time of arrest.
SC Yanes confirmed that he handcuffed the accused to the rear and then placed both of the accused’s hands in secure brown paper bags, to preserve any potential forensic evidence that might be available. The accused was then escorted by other police officers from the property while SC Yanes remained. SC Yanes proceeded to call an ambulance for the complainant, which arrived at 2:53AM to take the complainant to Calvary Hospital. FC Dimes accompanied the complainant to the hospital.
SC Yanes further confirmed that further police officers attended the location to secure the premises and maintain the crime scene log. SC Yanes confirmed that a forensics examiner, Mr Steven Pomeroy attended the scene. After SC Yanes left the residence, his involvement in the matter concluded.
In cross-examination, SC Yanes confirmed that he did not search the premises at any stage. SC Yanes confirmed that the accused had stated to him that he is currently going through Family Court and he thinks the allegation was related to those proceedings. The accused also told SC Yanes that he had two young children and requested to speak to a lawyer. SC Yanes also noted in his notebook that the accused said to him, “I think I fell into a big tap with her. Can’t believe she called it sexual assault” and then when the accused was exiting the house, he also said “if you rape someone would you be nice about it? No, I was gentle”.
Counsel for the accused also referred SC Yanes to the notes taken by Mr Pomeroy during his examination. SC Yanes confirmed he had not previously seen those contemporaneous notes. SC Yanes confirmed that the complainant had said that the accused had forced an unknown powder into her mouth and that he briefed Mr Pomeroy in relation to the three water glasses on the kitchen table, as the complainant had told SC Yanes she had come down to the kitchen to wash her mouth out with water using the three glasses.
Mr Pomeroy’s notes included a subheading “items of interest”, which included the liquid in the three glasses. The notes also state “no powder or clean up observed by police” and SC Yanes confirmed he would have briefed Mr Pomeroy using words to that effect. Under the subheading “observations”, Mr Pomeroy’s notes state “mug unrelated”, in respect of the red mug that was placed near the three water glasses. SC Yanes gave evidence that he could not say with certainty that he had told Mr Pomeroy that the red mug was unrelated. However, SC Yanes confirmed that to the best of his recollection, the red mug was unrelated and the three water glasses were the items of concern. SC Yanes again stated that to the best of his recollection, the complainant had not said anything to him about the red mug and that if she had said she used the red mug to rinse out her mouth, he would have noted that.
SC Yanes was referred to Mr Pomeroy’s notes about the “no bubbling”, “some bubbling”, and “bubbling” of the liquid in the three water glasses. SC Yanes gave evidence that Mr Pomeroy did not discuss the meaning of those descriptions with him. SC Yanes confirmed that he did not observe any powder on the hands of the accused and confirmed that Mr Pomeroy’s notes stated that no powder had been observed in the house.
First Constable Kassandra Dimes
Evidence at retrial 8 April 2021
FC Dimes also gave evidence at the retrial. FC Dimes attended the home of the complainant and the accused at approximately 1:50AM on 17 August 2018 with SC Yanes. FC Dimes stated that upon knocking on the door, it was answered by the complainant who was wearing blue pyjama pants with white stars on them, a grey long sleeve pyjama shirt, and a brown knitted jumper. FC Dimes observed the complainant to be distressed and upset, as she was crying.
FC Dimes confirmed that as a result of the allegation the complainant made to herself and SC Yanes, both officers went upstairs to the master bedroom of the home. Both officers announced that they were police officers after SC Yanes knocked on the door. FC Dimes confirmed that a few minutes later, SC Yanes arrested the accused in relation to an allegation of sexual intercourse without consent and the accused was shortly thereafter.
FC Dimes gave evidence that she then accompanied the complainant and the complainant’s mother to the complainant’s bedroom, where they moved the complainant’s daughter to a different bedroom. FC Dimes confirmed that the complainant’s mother moved the complainant’s daughter to a different bedroom downstairs.
FC Dimes confirmed that an ambulance arrived at approximately 2:53AM and that she then accompanied the complainant to Calvary Hospital in the ambulance. The complainant informed FC Dimes of the audio recording just after 3:30AM and the complainant stated that she had left the iPhone on her bedside table in the bedroom.
FC Dimes listened to the audio recording and noted that the recording commenced at 12:12AM on 17 August 2018 and it went for 80 minutes. FC Dimes confirmed she listened to most of the recording, fast forwarding through parts until she could hear content. FC Dimes made notes of when she could hear something on the audio recording. FC Dimes assumed that a man and a woman were speaking in Mandarin in the audio recording and confirmed that she could not understood what was being said.
FC Dimes then gave the complainant’s mobile phone to Detective Senior Constable Kirsty Anderson (DSC Anderson) upon her arrival to the hospital at 4:07AM. FC Dimes briefed DSC Anderson on the matter. FC Dimes left the hospital within a couple of hours thereafter and had no further ongoing role in the matter.
In cross-examination, FC Dimes confirmed that she and SC Yanes attended the residence after being informed via police radio that there had been a drugging by the complainant’s husband and also a sexual assault.
FC Dimes agreed that she took notes in her notebook to ensure she had a record of the initial complaint. FC Dimes confirmed that her notebook states that the complainant told her she “woke up to husband having sex with her”, “pants pulled halfway down”. FC Dimes confirmed that her notebook was accurate of what the complainant had told her happened. FC Dimes confirmed that there was no reference to the complainant being naked in her notebook and stated that if the complainant had told her she was naked, she would have recorded that in the notebook. FC Dimes also confirmed that the complainant had said words to the effect of “since waking up a few seconds him inside”.
FC Dimes’ notebook further stated that the complainant had told her “parents at home too” and the name of the complainant’s mother. The notebook also stated “before called police woke mum”. FC Dimes confirmed that the complainant told her that she had woken her mother before contacting police.
FC Dimes confirmed that the complainant had told her that the accused had put a finger into her mouth and that she had tasted bitterness. The complainant had said to FC Dimes that she then asked the accused what he put in her mouth. FC Dimes’ notebook records that the complainant said she “came downstairs to drink water because of bitter taste”.
FC Dimes confirmed that at the time of this conversation, she recalled that there were three water glasses on the dining room table. FC Dimes stated that she could not recall whether the complainant drew the glasses to her attention. FC Dimes gave evidence that she could not recall whether the complainant had her iPhone with her prior to going to the hospital. FC Dimes confirmed that the complainant did not tell her about the audio recording while she was at the house.
FC Dimes’ notebook recorded at 3:33AM at the hospital that the complainant “remembered she made recordings on her mobile phone”. FC Dimes gave evidence that the complainant had said she had remembered the recordings.
FC Dimes confirmed that she listened to the audio recording at the hospital and the complainant was in the same room. FC Dimes stated that she listened to the audio recording on a low volume close to her ear. FC Dimes confirmed she made a note in her notebook that at the time marking of 78:35 of the recording, she heard a weird noise like something dropping into water, like a “plop”.
Joel Kirby (Formerly First Constable)
Evidence at retrial 8 April 2021
Mr Joel Kirby is a former First Constable of police and was the informant for this matter. Mr Kirby became involved in the matter in the early hours of 17 August 2018 after he received a phone call from Detective Sergeant Stephen Ladd that an allegation of sexual intercourse without consent had been made by a woman against her husband. Mr Kirby confirmed that he did not attend the residence as part of the investigation, nor did he attend the hospital with the complainant.
Mr Kirby instead went to the ACT Watchhouse where he met the accused. Mr Kirby conducted the record of interview with the accused. A summary of the record of interview follows the summary of the rest of Mr Kirby’s evidence.
Mr Kirby confirmed that as part of the complainant’s medical examination, blood and urine samples were obtained and sent for analysis. Mr Kirby then received a toxicology certificate from the ACT Government Analytical Laboratory (ACTGAL) that confirmed that Temazepam and caffeine was detected in the complainant’s blood. The ACTGAL certificate further confirmed that Temazepam, Zopiclone and caffeine were detected in the complainant’s urine, while no substances were detected in the oral wash sample. The ACTGAL certificate of the complainant’s samples became Exhibit 11 in the retrial.
Mr Kirby also received a further toxicology certificate from ACTGAL addressing the samples taken of the liquid in the three water glasses from the residence. That ACTGAL certificate confirmed that no drugs were detected in the samples taken from the three water glasses. Mr Kirby confirmed that this analysis was set to target traces of Temazepam and Zopiclone. The ACTGAL certificate of the three water glass samples became Exhibit 12 in the retrial.
Mr Kirby confirmed that he received information from a colleagues at approximately 2:00PM on 17 August 2018 that some tablets had been found at the residence and confirmed that he tasked First Constable Szabo (FC Szabo) to seize those items. Mr Kirby further confirmed that the complainant’s iPhone had been provided to police in light of the audio recording and that the iPhone was returned by FC Szabo at the same time he attended to seize the items.
Mr Kirby further confirmed the FC Szabo spoke to the complainant’s parents when she attended the residence at 3:40PM on 17 August 2018 when she seized the blister pack of tablets that bad been placed in a plastic bag. Mr Kirby confirmed that the tablets in the blister pack were also sent off for forensic analysis.
A further ACTGAL certificate was obtained in relation to the tablets in the blister pack. The ACTAL certificate confirmed that the item in the plastic bag was a blister pack of 10 tablet capacity labelled ‘Imovane Zopiclone 7.5mg’ which contained seven white oval-shaped tablets each with a scoreline on one face. That ACTGAL certificate became Exhibit 13 in the retrial.
Mr Kirby confirmed that FC Szabo’s notes from when she attended the residence to seize the items recorded that the complainant’s father had located the blister pack with the Imovane label at 1242 hours.
Mr Kirby obtained a patient history for the accused from Florey Pharmacy. That document confirms that the accused’s prescriptions include Temazepam an Imovane. The patient history became Exhibit 14 in the retrial.
Mr Kirby further confirmed that the accused has no previous criminal convictions.
In cross-examination, Mr Kirby confirmed that he was not aware whether any of the attending police were informed of the existence of the audio recording while the complainant was still at the house. Mr Kirby accepted that there was no note or entry in the notebook or statements of attending police suggesting that an officer was told of the audio recording at the residence.
Mr Kirby agreed that after DSC Anderson conducted the evidence-in-chief interview with the complainant, she took her back home. DSC Anderson’s notebook and statement records that the complainant returned home at 11:51AM on 17 August 2018 and that DSC Anderson shortly received a call from the complainant at 12:05PM, that was placed using the complainant’s mother’s phone. DSC Anderson further noted that she received a further call from the complainant at 12:46PM where the complainant stated her father had found a packet of sleeping tablets and had picked them up to place them in a plastic bag.
Mr Kirby also agreed that the complainant had earlier identified the three water glasses on the dining table to police and told them that she had spat into them, which is why samples were taken from the respective glasses. Mr Kirby agreed that if the complainant had told police that she had spat into the red mug, samples would have been taken from that mug.
Mr Kirby confirmed that the items inside of the plastic bag, that is the blister pack of tablets and the electrical tag, were sent for DNA analysis. Mr Kirby confirmed that the DNA analysis showed that the accused could not be excluded as a contributor to the DNA profiles found on the items. The DNA analysis also showed strong support for the complainant being a contributor to the DNA profiles. Mr Kirby agreed that the analysis showed there was a third profile but it was an insufficient sample to determine who the sample could have belonged to.
Mr Kirby gave evidence that a sample of the complainant’s hair was sent for analysis and that it showed Temazepam was in her system sometime between 27 April and 27 July 2018.
It was further submitted that the accused would have had to manipulate the complainant’s torso, no matter what position she was in. It was submitted it was difficult to imagine how the complainant’s arms could have been raised above her head given that there was a bed head that formed an obstruction. The alternative was that the accused had to raise the complainant’s torso enough to remove the shirt in an upwards direction, an equally difficult task to undertake without waking her up.
Counsel submitted that the removal of the shirt, an act which was highly likely to wake the complainant, was inconsistent with the accused wanting to take advantage of the complainant being asleep and maintaining that advantage of her being asleep. It was submitted there was no need to remove the shirt in order to engaging in sexual activity as the accused could have access the complainant’s breasts by putting his hands inside the loose shirt.
It was submitted that a further difficulty was determining when the shirt was put back on. Counsel noted that the audio recording is silent once the sexual activity concludes and then after the alleged insertion of the powder into the mouth, the complainant goes straight into the bathroom. It was submitted that there was no time or no sound captured of the complainant retrieving the shirt and putting clothes on. However, the complainant told police in her evidence-in-chief interview that she was wearing the pyjama top when she went downstairs. The complainant stated in her interview that she put it on after the accused left the room. It was submitted that this was not consistent with the evidence on either occasion after the accused left the room.
On the accused’s version of events, the complainant’s pyjama top remained on the whole time. This was put to the complainant in cross-examination which she denied. It was submitted that the evidence of the complainant cannot be accepted on this issue.
Counsel for the accused further referred to the complainant’s evidence during her interview and at the first trial that her underwear was completely removed by the accused, without her knowledge. Counsel noted that the complainant told Constable Dimes that her underwear was “pulled halfway down”. On the complainant’s account, she found both her pyjama top and underwear under the blanket. The blanket was towards the bottom end of the bed. It was submitted that this meant the accused removed both items of clothing and then put them under the blanket, which was a pointless exercise.
It was submitted that the Court ought to conclude that the underwear was not completely removed and the pyjama top was not removed at all. Counsel submitted that both of these issues were important in the context of the conduct alleged.
Counsel referred to the complainant’s evidence that the accused was on top of her. Again, reference was made to the complainant allegedly not being awoken by the weight of the accused on top of her.
It was submitted that a person can be asleep and yet another person believe that person was awake and consenting. It was noted that cases in which it is alleged that an accused commenced sexual intercourse while a complainant was asleep may raise difficult issues. A statement by a complainant that she “woke up” to find an accused engaging in sexual intercourse with her or him will often simply mean that the complainant has no conscious memory of events that occurred prior to them “waking up”. It was submitted that the Court should not assume that consciousness is binary, whereby one is either fully conscious or completely unconscious. It was noted that in the process of awakening from sleep, a person may display some signs of consciousness, even though they could have no subsequent recollection of their actions.
Counsel for the accused did not accept that the complainant was asleep. This submission was based on the normal state of awakening, as well as the other matters addressed above that counsel referred to. It was further submitted that audio recording does not establish that the complainant was asleep.
In my view, the audio recording does not completely support either the version of the complainant nor the version of the accused.
Counsel for the accused addressed the complaint evidence. It was noted that the first person the complainant spoke to face to face after the alleged offences was her mother. That conversation was detailed by the complainant’s mother in her record of conversation with police, where the complainant’s mother said that the complainant had said “I have reported to the police because [MZ] raped me”. When the complainant’s mother asked the complainant why she did not wake up, the complainant then said, “he has been pressing some powders into my mouth and then, he was on top of me”. It was noted that the complainant’s mother finally conceded at the retrial that she had said this was the sequence of events as complained to her by the complainant.
It was submitted that the explanation that the accused pressed the powders into the mouth and was then on top of her was important. It was submitted that the complainant was giving a reason as to why did she did not wake up during the sexual intercourse, and that it was because of the powders. Counsel for the accused submitted that this reason given by the complainant was false and was inconsistent with any version of events that she has given, during her interview as well as her evidence at the first trial. The Court notes that there is a significant inconsistency between this evidence of the complainant and the evidence of complaint to her mother.
In respect of the complaint made to the 000 operator, the sequence of events as complained of was again emphasised. The complainant told the 000 operator that “my husband tried to sleep me with something in my water”, and then said, “he was trying to rape me”. It was submitted that the complaint of the drug being slipped into the water was inconsistent with the complainant’s evidence, as well as the sequence of events being inconsistent. It was noted that the complainant had said the order was the drugging before the sexual intercourse to both her mother and to the 000 operator. In the Court’s view, a reversal of the complaint was a significant matter with respect to the complainant’s credibility.
Relevantly, it was further submitted that the prosecution did not adduce evidence of how long the relevant drugs stay in someone’s system. It was accepted that the relevant drugs were identified in the complainant’s fluids. Counsel however emphasised that the hair testing of the complainant showed that she had Temazepam in her system between 27 April 2018 and 27 July 2018, prior to the alleged offences.
Fourth element: The accused was reckless as to whether the complainant consented
Counsel for the accused submitted that the issue as to whether the complainant was asleep was relevant to the determination of whether the accused was reckless as to consent. It was submitted that the prosecution had fail to negative the reasonable possibility that the accused believed the complainant was awake.
It was submitted that the audio recording was consistent with what the accused had said to police in his record of interview. Counsel for the accused also addressed the nature of the record of interview, in that it was conducted at 4:40AM while the accused remained handcuffed for the first half of the interview and his hands were covered in paper bags. It was further noted that the accused was shirtless and shoeless during the record of interview.
Counsel for the accused submitted that some of the questions during the record of interview asked by Mr Kirby bordered into the territory of cross-examination. It was submitted that from the record of interview, the following propositions clearly emerged:
1. The accused was adamant that he stopped immediately when the complainant told him to and that he had not done any “bad things”.
2. The accused was also adamant that the complainant was awake when the sexual interaction began.
3. The accused said a number of times during the interview that he believe that the complainant had initiated the sexual activity.
4. The accused now believed he had been “set-up”. Those sentiments had been expressed by him at the scene to SC Yanes.
It was submitted that the major difficulty that the prosecution faced was that the Court could find that the complainant believed she was asleep and believed that she played no part in the initiating of the sexual activity but could still not exclude the reasonable possibility that the accused believed to the contrary.
It was emphasised that the complainant said she did not see the accused move with the first push and that he got up when she pushed harder. It was submitted that even on the complainant’s evidence, it is likely that the accused did not feel or understand the first push in the way allegedly intended. It was submitted that this view was supported by the acceptance that when the complainant did push with more force, the accused did in fact get up.
When Mr Kirby asked the accused what the complainant said when she requested sex, the accused answered that he was just holding her, that he could not remember how it happened but that it happened naturally. It was submitted that the accused did not attribute any words to the complainant and that this was a genuine answer and fully responsive to the question asked of him. The accused admitted that he did not know why the complainant had requested sex and accepted that she had said “stop”, which he then did.
The accused told police during his interview the complainant was enjoying the sexual intercourse and she was “making those sounds”. When the accused said this to police, he did not yet know that the incident had been recorded. Counsel submitted that the accused’s version was accurate as against the audio recording. It was submitted that the transcript of the audio recording records (FEMALE MOANING) before the “walk away” and that the recording supports the accused’s belief that the complainant was a willing participant, based on the sounds. The accused stated that the complainant was making the noises and then suddenly told him to stop. The accused then stopped immediately. In the Court’s view, this submission is consistent with the audio recording.
Counsel for the accused referred to the accused being asked how he knew that the complainant wanted sex. It was at this point in the interview where the accused attributed a verbal answer to the complainant by stating that she said she wanted sex in response to him asking her. He told police that he asked the complainant, “do you want?” and that she had replied that she “wants it”. Counsel for the accused conceded that this conversation had not taken place and was not evident on the audio recording.
It was however submitted for the accused that this did not have the force relied upon by the prosecution, in light of the following factors:
1. The accused had strongly denied that anything sexually improper occurred.
2. Mr Kirby had told him there was nothing wrong if an earlier account given by the accused was true. That is, if the sexual intercourse was consensual.
3. The accused had already told Mr Kirby that the sexual activity had developed naturally and non-verbally.
4. The accused saying that there had been a verbal interaction needed to be viewed in the context of Mr Kirby continually pressing him during the interview at 4:40AM, where the accused had already explained how the sexual activity had commenced.
It was submitted that the accused did not tell an Edwards lie. It was submitted that the accused’s answer of the engagement progressing naturally was a sensible response but was apparently not satisfactory from Mr Kirby’s perspective. Counsel submitted that this matter was instead a situation of the accused attempting to support his potion in light of repeated questioning. It was emphasised that he followed this particular answer with a further insistence of having not done anything wrong. Counsel submitted that it could not be used for an Edwards purpose as it was insufficient and also submitted it Zoneff did not have application. In the Court’s view, this cannot be considered an admission against interest in terms of Edwards in light of the impermissible cross-examination by Mr Kirby, the police officer. I note in this regard that questions designed to break down the accused’s answers may be disallowed as a matter of discretion: McDermott v The King (1948) 76 CLR 501. Nevertheless, Zoneff and the question of credibility may potentially have application.
I also note that reliance on lies is fright with the risk of miscarriage of justice: R v Sutton (1986) 5 NSWLR 697. The fact that a person tells lies does not necessarily mean that the opposite of what the person says is true: Scott Fell v Lloyd (1911) 13 CLR 230. See also the discussion of Zoneff in this judgment at [46]-[47].
The accused also asked in his record of interview why he would want to have sex without the complainant’s “permits”. Counsel for the accused correctly submitted that a good character direction is particularly relevant to this statement.
It was submitted that the Court could determine the fourth element of recklessness in favour of the accused, without having to address questions concerning “the complainant’s beliefs”. However, it was submitted that the Court ought to conclude that the complainant was awake and involved in the physical activity before a sudden change of mind. I propose to proceed to deal with the element of recklessness on the assumption that lack of consent is established. Although, it must be said that the evidence concerning consent does not meet the requisite criminal standard taking into account the state of the evidence in this case, in particular concerning the audio recording.
It was noted that the complainant says she spat the contents of the powder into the red mug, which was next to her bed. The complainant later placed the red mug on the dining table, right next to the three glasses. The complainant also told police that she “yelled and struggled free” after the powder was inserted into her mouth. The audio recording did not corroborate this.
Counsel noted that the notes from the attending police officers confirmed that police understood that the red mug was not related to the incident. It was submitted that this understanding could have only originated from the complainant, even if the complainant had simply omitted to tell police of the mug’s importance. Counsel submitted that this omission is unexplained and inexplicable.
It was noted that the crime scene investigator described bubbling in one of the glasses, some bubbling in another, and no bubbling in the third. It was submitted that there was no evidence explaining this, particularly in circumstances where all of the testing of the glasses was negative.
Despite saying that after she felt bitterness in her mouth, she drunk water from the red mug before spitting back into it, it was submitted that there was no sound on the audio recording which is consistent with this sequence. Instead, it the sound is more consistent with a dropping of something into the mug, rather than something being spat in. Constable Dimes described it in her police diary as a “weird noise like dropping something into water”. During her evidence, Constable Dimes said it was “like a plop” sound.
Counsel submitted that even if the Court found that the complainant did not consent, the prosecution had still failed to negative honest belief on the accused’s behalf beyond reasonable doubt. As indicated earlier at [262], I propose to now deal with the element of recklessness.
I have directed myself in accordance with Murray that the complainant’s evidence should be scrutinised with care. I have also directed myself in accordance with R v Jovanovic (1997) 42 NSWLR 520 at 542.
Is the element of recklessness established? That is, was the accused reckless as to whether the complainant was consenting. This is the critical question in this case.
The presumption of innocence is the principle that a person is presumed to be innocent until the prosecution proves guilt beyond reasonable doubt. In a criminal case, the prosecution is required to prove the case beyond reasonable doubt and, if there is reasonable doubt, the accused cannot be convicted. The prosecution is not required to prove the guilt of the accused “beyond any possible doubt” but beyond reasonable doubt.
Suspicion must play no part in my function as a judge of the facts. If a fact-finder feels that the accused may be guilty and even if a fact-finder feels that the accused probably is guilty, as long as the fact-finder has a reasonable doubt about the accused’s guilt on a particular charge, that fact-finder, be it a jury or a judge, must return a verdict of not guilty on that charge, according to law.
It is important that the onus and standard of proof is not reversed. The question is not whether the accused has established a reasonable possibility that his account is correct. Rather, it is more properly expressed as whether the prosecution has negatived the reasonable possibility.
It is important to underline that the criminal standard of proof is not on the civil standard of proof of the balance of probabilities. Having considered all the evidence, I have a reasonable doubt in relation to recklessness. That is, I am not satisfied beyond reasonable doubt that the accused was reckless as to whether there was consent. After assessing all of the evidence, in the Court’s view, the criminal standard of beyond reasonable doubt is not met in relation to recklessness.
The standard is not balance of probabilities. The criminal standard of proof of beyond reasonable doubt is a higher standard. The prosecution bears the burden of proving the case against the accused to the criminal standard. The prosecution has not in this case.
Administer a Declared Substance
It was submitted that on the prosecution case, the accused drugged the complainant and has then proceeded onto the balcony outside his room and thrown both items onto the lawn: the first being the blister pack and the second being the tag or label, an item that happens to be his and his alone. It was submitted that this was non-sensical.
Counsel for the offender also referred to the discovery of the blister pack of Temazepam by the complainant’s mother. Reference was made to the two items on the lawn: the first, a packet of Imovane and the second, a tag or label relating to a building product. It was submitted that the second item obviously belonged to the accused, a person who was studying building, and it had nothing to do with medication.
Counsel for the accused submitted that the only logical conclusion is that the blister pack and the building tag belonging to the accused were planted there together by someone before being found. It was not known who placed the items there or who knew about it. Reference was made to lies of the complainant’s mother, who originally claimed that her daughter was not at home when the items were discovered but conceded at the retrial that her daughter was in fact home. It was submitted that the true position as exposed by the complainant’s mother’s evidence is that the complainant was at home when the items were found. There was no requirement to call the complainant, nor to send the photo to the complainant’s phone because the complainant was there. It was submitted that the complainant’s mother was an unreliable witness and this was not because of her poor English.
It was submitted that the prosecution had not addressed why there was strong support for the DNA of the complainant being present on the blister pack. It was noted that the drugs in the blister pack, Imovane, contain Zopiclone but do not contain Temazepams. If the accused was to have administered both of the substances, it was questioned why he would have only thrown the blister pack of Imovane over the balcony without also disposing of the Temazepam packet. Scrutiny was also raised over the presence of the building tag. It was submitted that the presence of the building tag is completely unexplained but suggests a connection of the accused to the items. Counsel submitted that its presence with the tablets on the lawn is highly suspicious.
Counsel for the accused also submitted that the prosecution had failed to prove element five of the transfer charge beyond reasonable doubt. Element five is as follows:
The accused was not authorised to administer a substance to the other person.
Section 20 of the MPTG Act provides the circumstances in which a person is authorised to deal with a medicine and this includes administer: s 19(1)(a). Part 11.2 of the MPTG Act includes evidentiary provisions. Sections 178 and 180 are relevant and both apply to prosecutions for offences under the MPTG Act.
There is a presumption that a person is not authorised under a Commonwealth or State law to deal with a medicine unless there is evidence to the contrary: s 178(2) MPTG Act. However, s 178(3) makes it clear that the presumption does not apply to authorisation, or lack thereof, under a territory law.
Section 180 provides for certificate evidence in proceedings for an offence under the MPTG Act. A certificate signed by or on behalf of the chief health officer is evidence of the matter, including a certificate that there was not an authorisation or licence in force in relation to a stated person: s 180(2) MPTG Act.
In order to prove that the accused was not authorised, a certificate signed by or on half of the chief health officer relating to the status of the accused could have been tendered. The presumption provided by s 178 that the person is not authorised under Commonwealth legislation or state legislation is then triggered. It was noted that the presumption in s 178 relieves the prosecution from having to prove a person had no authorisation in any other Australian jurisdiction other than the ACT.
The prosecution did not tender a certificate pursuant to s 180 of the MPTG Act and no admissions were made by the accused. It was submitted that the prosecution had failed to prove the element of a lack of authorisation to administer the relevant substance beyond reasonable doubt. The Court will assume for the purposes of this judgment that the element of lacking authorisation is proven beyond reasonable doubt.
Nevertheless, the prosecution has failed to establish beyond reasonable doubt that the complainant had been drugged as alleged.
In accordance with Markuleski, taking into account the reasonable doubt of the Court concerning the evidence of the complainant, I consider that that doubt causes me to have a reasonable doubt about the evidence on the related transferred charge.
Orders
On 9 April 2021, I returned the following verdict in respect of Count 1 on the indictment for SCC 318/2018, being an offence of sexual intercourse without consent (CC2018/10449):
1. The accused is not guilty.
I now enter the following verdict in respect of the transfer charge for SCC 319/2018, being an offence of administer a declared substance (CC2018/12827):
1. The accused is not guilty.
| I certify that the preceding two hundred and eighty-eight [288] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Rhiannon McGlinn Date: 23 December 2021 |
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