R v Nawroazi - [2021] SADC 143

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v NAWROAZI
Criminal Trial by Judge Alone
[2021] SADC 143
Judgment of his Honour Judge Slattery
10 December 2021
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY
The defendant is charged with two counts of rape contrary to s48(1) of the Criminal Law Consolidation Act 1935.
Held:
The charges have not been proven beyond reasonable doubt and I find the defendant not guilty of both counts.
Criminal Law Consolidation Act 1935 (SA) s 48(1); Juries Act 1927 (SA) s 7(1)(a), referred to.
NBM v The Queen [2021] SASCA 105; IMM v The Queen (2016) 257 CLR 30; The Queen v Dihir (2019) 133 SASR 452; The Queen v El Rifai (2012) SASCFC 98, considered.

R v NAWROAZI
[2021] SADC 143

The accused is charged on an Information for arraignment on 8 November 2019 with two counts of rape contrary to s 48(1) of the Criminal Law Consolidation Act 1935.
The particulars described on the face of the Information are as follows:
INFORMATION
Eshaq Ali Nawroazi is charged with the following offences:
First Count
Statement of Offence
Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Eshaq Ali Nawroazi on the 15^th day of September 2018 at Norwood, engaged or continued to engage in sexual intercourse with EKT by inserting his penis into her vagina, without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was not so consenting.
Second Count
Statement of Offence
Rape. (Ibid).
Particulars of Offence
Eshaq Ali Nawroazi on the 15^th day of September 2018 at Norwood, engaged or continued to engage in sexual intercourse with EKT by inserting his finger or fingers into her vagina, without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was not so consenting.
Under s 7(1)(a) of the Juries Act 1927 (SA) the accused has made an election to be tried by a judge sitting without a jury.
The allegations are that in the early hours of the morning of 15 September 2018 at Norwood, the accused engaged or continued to engage in sexual intercourse with EKT by inserting his penis into her vagina without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact that she was not so consenting and by inserting his finger or fingers into her vagina without her consent to engaging in sexual intercourse knowing or being recklessly indifferent to the fact that she was not so consenting.
Elements of the Offence
The elements of the offence of rape are as follows:
1)The accused must engage or continue to engage in sexual intercourse with another person;
a.Sexual intercourse includes any activity consisting of or involving penetration of a person’s vagina or labia majora by any part of the body of another person or by any object and includes a continuation of such activity.
2)The other person does not consent to the engaging in the sexual intercourse; and
3)The offender knows that the other person does not so consent; or
4)The offender is recklessly indifferent to the fact that the other person does not so consent.
A person consents to sexual activity if the person freely and voluntarily agrees to such sexual activity. That person would not be taken to freely and voluntarily agree to that sexual activity if: the activity occurs while the person is asleep or unconscious; the activity occurs while the person is intoxicated to the point of being incapable of freely and voluntarily agreeing to the activity; is unable to understand the nature of the activity or agrees to engage in the activity with a person under a mistaken belief as to the identity of that person.
A person is recklessly indifferent to the fact that another person does not consent to an act of intercourse if (in this case) he:
a)Is aware of the possibility that the other person might not be consenting to the act but proceeds anyway;
b)Is aware of the possibility that the other person may not be consenting to the act or has withdrawn consent to the act but fails to take reasonable steps to ascertain whether the other person does in fact, consent before deciding to proceed; or
c)Does not give any thought as to whether or not the other person is consenting to the act or has withdrawn consent to the act before deciding to proceed.
In order to prove that the accused is guilty of either count of rape, the prosecution must prove to my satisfaction each of the elements beyond reasonable doubt and this will include whether the accused knew that the victim was not consenting or was recklessly indifferent as to the fact that she was not consenting.
General Directions
Before proceeding to discuss the evidence, it is necessary for me to set out a series of directions which I have given myself when determining my judgment.
The prosecution bears the whole onus of proof of the guilt of the accused beyond reasonable doubt. The accused is not required to shoulder any burden of proof and is presumed to be innocent of the charges unless and until the evidence that I accept has satisfied me that each element of the offences charged have been proved beyond reasonable doubt. If I am not satisfied beyond reasonable doubt that the evidence before the court satisfies the elements of the offences beyond reasonable doubt, then I would reach a verdict of not guilty.
My task is to evaluate the evidence and to decide whether, in the whole of the evidence, which includes any evidence led by the defence and the parties’ submissions, the prosecution has proved the offences beyond reasonable doubt. In making my decision of guilt beyond reasonable doubt, I am required to be satisfied that the version of events (if any) put forward by the accused is not reasonably, possibly true. If I am not so satisfied, I will not be satisfied of proof beyond reasonable doubt in respect of the alleged offence in respect of which this evidence is relevant.
Whenever the accused puts something forward to me, he does not have to prove it; rather it is the prosecution that must prove the elements of the offences charged beyond reasonable doubt. If after carefully scrutinising the evidence, I am left with a reasonable doubt about the prosecution case, then I must give the accused the benefit of that doubt and find him not guilty.
The accused does not shoulder any burden of proof and I would arrive at the same conclusion of not guilty if I am satisfied that any version put forward on his behalf is reasonably, possibly true. Even if I did not reach that conclusion, I would still not convict the accused unless I was satisfied that the elements of the offences are proved beyond reasonable doubt. If after considering all of the evidence I was unable to determine where the truth lay, I would not be satisfied of the guilt of the accused beyond reasonable doubt and I would find the accused not guilty.
For the reasons explained within this decision, I am not satisfied beyond reasonable doubt that the prosecution has proved the elements of any of the charged counts of rape beyond reasonable doubt. I have reached the conclusion that, because of the very unsatisfactory evidence given by the complainant EKT and the weaknesses in the evidence given by the accused, I am unable to say where the truth lies and I find the accused not guilty of the charged offences. I turn then to the evidence and my assessment of it.
Evidence of the complainant, EKT
The complainant, EKT, gave evidence that on Friday 14 September 2018 she was 21 years of age and was employed part time at a café owned by her boyfriend with whom she had been in a relationship for only a short period of time. Her then boyfriend gave different evidence: he said that they had been in a relationship for a much longer period of time, and in this and other matters I find that the evidence of the complainant is inaccurate and lacks credibility.
She did not work that day. She got up late and had breakfast late, at about 11.00 am. She thinks she might have had eggs on toast. At about 3.00 pm, she went out to meet a friend at the Cremorne Hotel on Unley Road. She was driving her own car. She was wearing a blue dress with flowers, white sneakers and she took with her a white jumper. She was wearing plain black underwear.
In her evidence, EKT initially said that in the visit to the Cremorne Hotel, she drank three pints of cider. Although at first glance this appears to be a significant amount of cider to drink, there was no particular evidence about the alcohol content of cider. However, on 24 September 2018, in her first statement to a detective, she told him she had bought two schooners of cider and that in total, including a second visit to the same hotel, she had three schooners of cider at that hotel. In cross examination, she said she could not remember clearly how many drinks she had on a second occasion at the Cremorne Hotel. However, she accepts that she told the detective that on the second occasion she went to the Cremorne Hotel, she had three or four drinks. I have doubts about the accuracy of her evidence because there is an obvious difference between initially having three pints of cider and other drinks later at the same hotel and saying she initially had two schooner glasses of cider. I gained the clear impression that she had no real memories of that part of the day and to an extent was reconstructing the events.
On the first occasion, she stayed at the Cremorne Hotel for about 90 minutes and does not recall having anything to eat. She said she then drove to see a friend of hers at a business called Boutique Paws on Glen Osmond Road. Her friend was employed at that business and when she arrived, she thought that the proprietor of the business was not present. In later evidence she said that she did not know if the proprietor was present. She stayed at that business for about 45 minutes to an hour. She said when staying at that business, she and her friend had a few bottles of cider. This was one or two 330 ml bottles. She accepts that on 24 September 2018 she gave a statement to Detective Bulmer that she only drank schooners of cider at the Cremorne Hotel and did not mention in that statement or in any other statement or meeting with the detectives on 4 October 2018, 9 January 2019, 16 September 2019 and 3 September 2020 that she had anything to drink at Boutique Paws. I think that she is quite mistaken about this and that the only place where she drank with this friend at that time was the Cremorne Hotel. Detective Bulmer gave evidence that he would always raise with her where she may have consumed alcohol and what she had to drink and he has made no record of her saying that she had drinks at Boutique Paws.
The complainant said that after staying at the business on Glen Osmond Road for a period of 45 minutes to an hour, she drove back to the Cremorne Hotel with her friend Am and they were later joined by another friend, Al. They started drinking bottles of cider and she thinks she stayed there for about 2 hours. She did not recall how many drinks she had at that time and she did not recall eating any food. She said she felt slightly affected by alcohol. She felt a little silly and was loud and outgoing.
At about 8.30 pm that evening, she then drove to another friend’s house near Fullarton. There were about 10-12 people present drinking at the house. The group may have been celebrating someone’s birthday. She did not drink much at that house which was owned by her friend Al. She thought she only had one or two drinks and she does not recall what she was drinking. She did not eat any food. In her statement to the police of 24 September 2018, she told the detective that she had 3 or 4 drinks at the home of Al whereas in her evidence, she said she had 1 or 2 drinks. The complainant denied she was under-representing the amount of alcohol she was drinking to avoid any suggestion or impression that she was driving whilst drunk. Her fitness to drive is not a matter before me and I leave it to one side. She had by then consumed a large amount of alcohol. A significant issue for me is her reliability as a historian of the events of that night.
The complainant then said that at about 10.30 pm she left the home of Al and drove to the Bath Hotel in Norwood. She knew there were other friends who were there. The carpark of the Bath Hotel was full and she therefore parked further down Queen Street on the same side as the hotel, which is on the eastern side.
At the hotel, she started drinking spirits with juice and she thinks she was drinking gin and orange juice. She thought she had 3 or 4 drinks. These were in short glasses. However, in her statement to the detective in October 2018, she told him that she had 5 or 6 drinks. Then, in cross-examination she said she may have had between 4 and 6 drinks. She was making an estimation based upon a range. I think that she was a poor historian about the amount of alcohol she was consuming by that time because she had consumed so much alcohol. She had not had a meal since about 11.00 am that day.
Whilst at the hotel, she said she was feeling affected by alcohol and was about 6/10 drunk. She was being a bit loud and excited. She thought she was more affected by alcohol when she was at the Cremorne Hotel. I have considerable doubts about the accuracy of this evidence. She said she still had control of her movements and can recall that at the time she was carrying a brown shoulder bag. She could not recall having a meal at the Bath Hotel or at any other place.
She said sometime between 11.00 pm and 12.00 midnight, she and two friends decided they wanted to go dancing. She did not have any particular place in mind. One of her friends wanted to go to the Red Square nightclub in Hindley Street. The three of them went from the Bath Hotel to Hindley Street in an Uber that was organised by one of her friends.
She recalls entry fees had to be paid for the Red Square nightclub, but she did not pay this fee and she assumes one of her friends paid the entry fee. The first drink she had at the nightclub was a Smirnoff Ice. In evidence, she said her friend bought her this drink but in her statement to the police, she said she bought the round of Smirnoff Ice drinks collectively for herself and her two friends.
The complainant said in her evidence that she thinks she had about 4 or 5 drinks at Red Square and she thinks she was drinking gin and orange juice with a single shot of gin each time. When at the Red Square, she felt very intoxicated, perhaps 8/10 intoxicated when 1/10 is not intoxicated at all.
She had an ecstasy tablet at that nightclub. She said her friend bought it and she paid her friend $20 for it. She agreed that on 9 January 2019, she told the police she bought the ecstasy tablet from an unknown person in the Red Square nightclub. She had not previously mentioned that her friend had bought the ecstasy tablet in any statement given to police. She said that she consumed the ecstasy tablet about 45 minutes or so after arriving at Red Square, however in her proofing with the detective on 23 September 2019, she said she took the tablet 20-30 minutes after arriving at the nightclub. She is now unsure which is correct.
She was able to say she thought she had about 15 drinks in total after 3.00 pm in the afternoon and she said in cross examination that she had no memory of drinking shots and no memory of telling a treating doctor about how much she had to drink. For example, she had no memory of telling her boyfriend that she had 10 drinks although she accepted she might have said that. I consider that her memory of how much she had to drink is poor and I am satisfied that she had more to drink than she can now recall.
The complainant said after consuming the ecstasy pill, she found it did not have any effect upon her. She had consumed ecstasy previously and she did not feel as affected by the drug as she had previously experienced.
On the morning of Saturday 15 September 2018, she left the Red Square and went to the Bath Hotel using an Uber. She thinks she ordered the Uber about 45 minutes after taking the ecstasy tablet.
The Uber vehicle collected her from the side of the road opposite the Red Square. In cross examination, she agreed Red Square was on the south side of Hindley Street and therefore she must have been collected from the north side of that street. She therefore had to cross the road to get to the vehicle. She had to identify the vehicle, its registration and give her name to the driver who had to tell her his name. All of this appears to have been accomplished. Exhibit P16 tracks the movement of this vehicle through a satellite tracking function in GPS. A reading of the position of the vehicle is taken every 2 seconds and also identifies when the vehicle is stationary. She sat in the back of the vehicle in the passenger side. She felt woozy and lethargic.
The complainant said that during the trip to the Bath Hotel, she was feeling tired and woozy and she started to rest her eyes and then she rested her head on a head rest. She thinks that she was awake when she arrived at Queen Street, Norwood. This is inconsistent with her later evidence to which I will later return about her confusion relating to precisely where she was when the Uber car stopped. She thinks she grabbed her jumper, her phone and her bag and that she was checking her bag for her keys before the car pulled over. She says she started looking for her keys on the floor of the car but she did not say why. She gave no evidence about having had the keys, for example, in her hands and then losing track of them. I am satisfied on the evidence that she did not lose these keys or lose track of where they were. In her later evidence, she agreed that she had her car keys when she was in the Uber vehicle on Queen Street. I do not accept that she lost those keys and needed to find them even though she may have thought or imagined that was the case.
She asked the driver to look for them. This is inconsistent with at least two aspects of the evidence. First, the complainant later agreed that she had the keys in the vehicle on Queen Street, Norwood. Second, the accused said and I accept, that there was never any discussion about keys, only about “something valuable”.
The complainant said the accused then started looking for something in the front of the car. I do not accept that evidence. The evidence of the complainant is that she had the keys in the vehicle. He did not give them to her.
She said the Uber was parked at the point as shown on Exhibit P1. For reasons which I will develop, that evidence is plainly wrong.
She then said at some point the driver got into the backseat and started looking for the keys. I do not accept that evidence because the accused gave evidence that the topic of the keys was never discussed and the complainant agreed that she had the keys in the vehicle on Queen Street in Norwood.
The complainant then said she was tired, intoxicated and unwell and felt defeated about not being able to find her keys. She said she fell asleep in the back of the car on the passenger side whilst resting her head on the passenger door.
She said when she awoke, someone had moved her, she was lying on her back on the back seat of the car and her head was against the inside of the back passenger side door. Her legs were opened, the accused was positioned between her legs and he had used his right hand to remove her underwear up towards the top of her left leg so that her genitals were exposed.

The complainant then said she can recall that the driver, in front of her, unbuttoned his pants, pulled them down and then removed his underwear down to his knees. He then had sexual intercourse with her. He then removed his penis from her vagina and placed his fingers inside her vagina. She thought he was trying to remove her tampon. He then reinserted his penis. She said he then stopped what he was doing, got out of the car and got into the front driver seat of the car. She sat up in the back of the car. She was given her keys by the accused once she arrived home. She was taken home after the accused asked her if she wanted to be driven home. She said she did.
When she got home, the accused spoke to her and said “here are your keys” and gave them to her. She then went inside. She messaged her boyfriend ML that something bad had just happened to her.
In evidence in chief, she denied consuming any cocaine or methylamphetamine on the night or before the examination that had subsequently occurred at Yarrow Place on the evening of Sunday 16 September 2018. I do not accept that evidence. I think it is incorrect. She could also remember that she removed the tampon she was wearing on the night and disposed of it. She later said that she was not sure but she did not know what had happened to the tampon. She had no injuries that she could recall. She could also recall that she was wearing a tampon at the RAH. She could recall removing a tampon in the bathroom at the RAH. That is inconsistent with the evidence given by Dr Sandicock who said it was necessary to remove the tampon from her using special forceps. This is another example of the failure of memory of the complainant. These failures of memory are very significant when considered in the whole of the background of the evidence.
In cross-examination the complainant said that she has previously experienced blackouts from being drunk. She described that she had these blackouts “here and there” and that although she drinks every second day, she does not get drunk every second day. She does get drunk quite regularly. On the day in question, she started drinking about 3.00 pm when she started drinking cider at the Cremorne Hotel and repeated that she drank three pints of cider. She thought that she had a clear memory about how much she had been drinking prior to the time that she got to the Bath Hotel. She said that her memory on that was quite clear. However, at the Red Square she felt quite intoxicated. She thought that she might go back to the Bath Hotel to catch up with her friends because she was not enjoying the Red Square. Her intention was to carry on her night if she could with her friends that she had left at the Bath Hotel. HD was a male friend of hers that she had seen at Al’s house at Fullarton and she knows that she rang HD at 1.23 am on Saturday 15 September. She has no memory of doing that, only that she has seen her phone records and knows that she rang him and had a 127 second duration phone call with him. She does not have any memory of why she was calling him at that time and would assume she was calling him to see what he was doing, to catch up with him. She cannot remember doing any of that on the night.
Similarly, she has no memory of trying to ring her boyfriend ML at 1.26 am and then at 1.27 am that morning. That is the same as her lack of memory about trying to ring HD.
She knew that she had tried to call HD only because what she had seen of her phone record; that is the only way she knows anything about those calls. She also knows from the phone records that she tried twice to ring ML in quick succession. Once at 1.26:55 and the other at 1.27:16 and on both occasions the phone went through to message bank. It is known from his evidence that he then had his phone on airplane mode and so he was not receiving calls.
Although she had been proofed on a number of occasions and had given witness statements to the police on a number of occasions, the first time that she told anyone that she had been in a romantic relationship with ML was in giving evidence in chief. She said that she did not find it necessary to say anything about it when the events happened because her relationship was only just beginning; she was only just starting to be in a relationship with ML. It was not something to mention at that time. That evidence is inconsistent with the evidence of ML who said they had been in a relationship for perhaps up to 12 months and certainly for a number of months. He did not agree that they were just beginning to be in a relationship.
I consider the evidence given by the complainant on that topic is wrong and is a further example of absence of accurate memory about important matters that she suffered throughout the whole of her evidence.
The complainant agreed that she was possibly calling ML to come and collect her although she has no clear recollection. She knows that she would not have been calling him to come out and party with her. Therefore, when standing outside Red Square she could use her telephone to ring and a conversation with HD, to twice to ring ML and then finally to use the app to order the Uber. She would have been able to read the phone at the time and to have identified the Uber vehicle.
After confirming again that she drank three pints of cider at the Cremorne Hotel on her first visit there, each of which held 425ml of cider, she agreed that on 24 September 2018, she spoke to a Detective Bulmer at the Grenfell Street Police Station and provided a first statement. She said then that they were drinking schooner glasses of Orchard Crush Apple Cider and they sat outside and chatted. The complainant accepted that she told the police she was drinking schooners of cider and she thinks she must have got mixed up about the size of the glasses and had forgotten what she had drunk when speaking to the police. When asked which was correct, she said probably the schooner glass size because she thought that at the time the statement was taken, her memory is more likely to have been more accurate, than now. She did not want to exaggerate the amount of alcohol she was consuming over the evening.
On the topic of the evidence the complainant gave about the amount of alcohol she drank at Boutique Paws, she agreed that prior to giving evidence in chief, she had never mentioned to the police or to the prosecutor at any time that she drank alcohol at Boutique Paws. She agreed that when she gave a statement to Detective Bulmer on 24 September 2018, she did not mention anything about consuming alcohol at Boutique Paws and she did not actually mention going there. There is no mention of, for example, the boss of the business being there and perhaps leaving and her friend Am being at the premises and having a drink. There is no mention of anything of what she was describing at Boutique Paws. That was the same position when she saw Detective Bulmer again on 4 October 2018, 9 January 2019, the proofing at the DPP office on 13 December 2019 and the further meeting with Detective Bulmer on 16 September 2019. It was not mentioned at the Office of the Director of Public Prosecution on 3 September 2020 or on 17 September 2021. She agreed that in none of those meetings with the police or in any proofing meeting did she tell anyone about having anything to drink at Boutique Paws. She denied that her evidence was an attempt to exaggerate the amount of alcohol that she consumed.
The complainant agreed that she could not say how much alcohol she had actually drunk over the evening or during the morning. She denied guessing at how much she had drunk and the only explanation she could give for not telling anyone about drinking alcohol at Boutique Paws was because she did not realise that it was an important part of the story. She then could not explain why she did not think it was an important part of the story. She agreed that on 24 September 2018 she spent three hours with Detective Bulmer giving him information about what had occurred. She agreed that he was asking her what did she drink and where did she drink and how much she was drinking. Her failure to mention that she had drinks at Boutique Paws is a lapse of memory but her inability to accurately recall events of the night when she was asked about them so soon afterwards casts significant doubt upon the credit worthiness of her version of events and upon her credit as a witness. As a matter of common sense and experience, I think it is very unlikely that she did consume alcohol at Boutique Paws and this casts even greater doubt upon the credit worthiness of her memory of events
In her evidence in chief, the complainant could not say how many drinks she had at the Cremorne Hotel on the second occasion when she attended there on 14 September 2018. However, she was able to tell Detective Bulmer on 24 September 2018 that she purchased two bottles of Hills Apple Cider when she went back to the Cremorne Hotel. One was for her and one was for her friend Am. Her present recollection about what she had to drink at the Cremorne Hotel on the second visit there would be three drinks but she could not be 100% sure. In contrast, she said in her evidence in chief that she had a number of drinks at the Cremorne Hotel on this second visit. In further contrast, on 24 September 2018 she told Detective Bulmer that on the second visit to the Cremorne Hotel, she and Am possible stayed and bought one more drink each and Am and Al wanted to leave and go home and so they left the premises. They went to the home of Al for the function that evening. Therefore, she was not sure on 24 September 2018, some ten days after the event, how many drinks that she had had at the Cremorne Hotel on the second occasion. She definitely stayed for one drink but she accepts that she could have had more. As a result, on her own evidence, she was never sure how many drinks she had on that night.
The complainant then agreed that she said that she had one or two drinks at the house of Al that evening. In her statement to Detective Bulmer on 24 September 2018, she said that she would have had at least three or four apple cider drinks at Al’s home at Fullarton. This was over a period of about 1½ hours. She denied that she was trying to minimise the amount of alcohol she was drinking so as not to appear to have been drink driving. She accepted that her memory was faulty and that the statement would be more correct. She denied guessing about her evidence and said that she had made it clear that she has been quite unsure about a number of things but none of what she was saying are guesses. I am not able to accept that evidence. I am satisfied that she made guesses about this and other aspects of her evidence.
She also then confirmed that at the Bath Hotel where she went after being at Al’s home, she had said in evidence that she had had three to four drinks of gin and orange. However, on 24 September 2018, she told Detective Bulmer that she would have consumed about five or six drinks of gin and orange. She thinks that the estimate of five or six drinks was probably correct and it was in the range of around four to six. She said she just cannot be sure anymore because she has no memory of the events. In the end, she agreed that she had taken a guess at the amount of drinks that she had.[1] When challenged again, she said it was not a complete guess, it was more of an estimate. She was unable to explain why she told Detective Bulmer on 24 September 2018, some ten days after the event, that she had had about six drinks at the Bath Hotel but then when she gave evidence, she said four drinks.
[1] T98.6-7.
She agreed that she said in evidence that when she got to the Red Square nightclub, one of her friends bought her a bottle of Smirnoff Ice. She said that she does remember that, she was quite emphatic. However on 24 September 2018, she told Detective Bulmer they all went to the bar and they all bought a bottle each. She could not say for sure which version was correct. She then said that she had another memory that the other women, O or L, the girls that she was with, bought that round of drinks. She agreed that she had said in evidence that L wanted to buy a “clear cap” which was ecstasy or MDMA. She thought she would go along with that. She confirmed that L sourced the MDMA from someone she knew in the Red Square nightclub. She was quite intoxicated by this time and things were getting to be a bit of a blur. She is not sure whether it was O or L who were sourcing the drugs.
At her meeting with Detective Bulmer on 9 January 2019, she gave a further statement in which she mentioned the MDMA. This was after the toxicology report had been obtained and she knew that MDMA had been detected in her urine. At that time, she told Detective Bulmer that she bought the MDMA capsule for about $20 from an unknown club goer inside the club and not that one of her girlfriends purchased the MDMA. She then said that what she was really meaning when she spoke to Detective Bulmer was that she was purchasing it using her own money. She did not say that she had sourced it. Someone else sourced it. She agreed however that she did not tell Detective Bulmer that somebody else sourced it because she did not find it necessary. She meant that she was sourcing the drug from someone inside the club. She also agreed that prior to giving evidence, she had never mentioned to the police or to the DPP that either L or O had come up with the idea to obtain the ‘clear cap’ of MDMA/Ecstasy. She agreed that she told Detective Bulmer in January 2019 that in hindsight, the taking of the MDMA could account for her drowsiness and feeling so tired and blacking out in the car. She does not remember saying that but agrees that if it is in her statement that is what she said. In January 2019, she had not said this to the Detective in her original statement because she had forgotten about it. She also told Detective Bulmer on 23 September 2019 when she provided a further statement that she can recall taking the MDMA about 20 minutes to 30 minutes after arriving at the club whereas in evidence she said that she did this some 45 minutes after getting to the club. When challenged on the inconsistencies between these two pieces of evidence, she said that she is not able to remember now when she took the pill after getting to the premises and she does not know how long she was there before she consumed the MDMA.
She said that her best memory now was that she had about 15 drinks between 3.00 pm on afternoon of the Friday to 1.30 am on the morning of the Saturday. She agreed that that was really only an estimate and it could well be wrong because she was so inebriated that her estimate could be wrong. She has no memory, for example, that she might have drunk some shots of alcohol separately from the gin and the cider that she could recall drinking. I consider that this estimate is only a “best guess” and on balance, I consider that she had consumed more alcohol than she can now recall because of her state of inebriation.
For example, she had no memory of telling ML that she had had only ten drinks during the night.
The complainant said that on the ride between Red Square and the Bath Hotel, the Uber driver made light conversation with her. She denied that the only conversation the driver had with her was to verify who she was and to ensure that she was the correct ride for him to pick up. She also confirmed that when they arrived at the Bath Hotel, she could recognise Queen Street, she could recognise Norwood and the area near the Bath Hotel at the time. That hotel was a regular drinking spot for she and her friends. She said that when she arrived, she was very tired and she did not really look around and notice her surroundings. However, she then said that she could recognise the location on her arrival by her familiarity with Queen Street at Norwood, even though she also said that she was not really focussing upon where she was until the car finally arrived. She would assume that at the point of arrival, she knew where she was. She could not recall her thoughts accurately at that time. She said that she does not remember when she became aware that they were at Queen Street, Norwood on the morning of 15 September 2018. She said that she could only assume that the car was parked, she looked around and she knew where she was or someone told her that she had arrived. She has no real idea of anything that was happening at the time.
She was then referred to Exhibit P1 which she had drawn herself and confirmed again that she is not in any doubt that upon arrival the Uber vehicle parked on the western side of the street, almost immediately opposite the entrance to the carpark to the Bath Hotel. She was then still hoping to catch up with friends at the Bath Hotel and she knew that it was still operating at that time of the morning. She strongly denied the suggestion that the Uber vehicle did not park on the western side of Queen Street at the position that she had indicated. She insisted that she was not mistaken and denied that the vehicle had parked on the eastern side of the street in the vicinity of 58 Queen Street, Norwood. After she confirmed this evidence, I asked her to ensure that what she was meaning was that the vehicle was parked on the western side of Queen Street, opposite the hotel and opposite the entrance to the carpark of the hotel. She had said that the hotel was operating that night. Implicitly at least, patrons of the hotel were exiting from the carpark at that time. She was given a further opportunity to accept or reject the proposition that the car was parked south of the Bath Hotel on the eastern side of Queen Street. She emphatically rejected that proposition.[2] I am satisfied that the complainant is completely wrong in her denial and that her emphatic rejection of the proposition that the vehicle parked on the eastern side of Queen Street is also completely wrong. I will develop these matters later but it is clear that the entrance to the carpark of the Bath Hotel is adjacent to the Hotel on the southern side. The carpark entrance is on Queen Street and vehicles must exit from the carpark while facing in a westerly direction before travelling south towards Kensington Road or north towards The Parade. The verandah of the Bath Hotel is at the corner of The Parade and Queen Street. There was a spill of light from the Bath Hotel into Queen Street, as well as lighting on Queen Street and on The Parade. The complainant had parked her own car about 50 metres from the corner of Queen Street and The Parade on the eastern side of the street.
[2] T111.16.
The complainant said that they arrived at Queen Street in the early hours of 15 September and that then she then became aware that her keys were missing. She denied that she said to the driver that he should not end the trip yet. However, it is known that the driver did not end the trip then but only after about 16 minutes. In my view, the instruction to the driver not to end the trip yet is consistent with her state of almost complete confusion at that time. She denied the proposition that she told the accused not to end the trip yet. I find that such an instruction was given to the accused because he did not end the trip for at least another 16 minutes.
She also denied telling the accused then or at any time that she had lost some expensive things. She denied that she never said to him anything about her keys. She agreed that the accused turned around and asked her what she was doing in the back seat of the car, he having delivered her to her destination. At that time, she was searching for something in the back of the car and he was still in the driver’s seat. She denied that she went on searching in the back of the car for about 10 minutes looking for something. Although she emphatically denied that proposition, in light of the evidence that she gave about what she could remember, it is doubtful that she would know one way or the other what was in her mind or how long she was searching and where she searching and for what she was searching. She agreed that when she was searching, she had her mobile phone switched on. She was using her torch to look on the floor including over the middle row of seats into the last row of seats at the back of the vehicle. She accepted that that was possible but she does not have a memory.

Therefore, she has a memory of searching in the car, the accused being in the front seat but she said that only went on for less than 10 minutes. I am unable to accept that evidence. I am satisfied that in her state of inebriation and in light of what she was doing, she would have no way of knowing precisely for how long she was searching in the vehicle.
The complainant agreed that after a period of time the accused got in the backseat of the car with her. That was after she had been searching the vehicle, including while using the light on her phone. She denied that just before he got into the backseat, she was using the light on her phone across her legs so that at one moment she was shining the torch upon her crotch area whilst she was searching. She denied that he continued to ask her what she was looking for but she agreed that he got into the backseat with her. She denied that he asked her again what she was doing. She said that she did not think that happened but she accepted that she said to him words to the effect “I am looking, I am looking”. Then, when they were both in the backseat, both of them continued to search on the floor and possibly underneath the front seats of the vehicle. She was able to deny that he asked whether she was looking for example for a mobile phone or a purse and she denied that she told him that she was looking for her keys. This was because she had already told him that she was looking for her keys. She denied that she told him that she was looking for different things.
In light of her other evidence about what she can recall and her state of inebriation and the fact that she had been blacking out, it is unclear to me how the complainant could make the emphatic denials about what occurred on that evening. At one point she said in her evidence that she denied that the accused asked her any of those questions and that she made any of those responses.[3] On my assessment of the evidence, she is not in any position to deny those propositions.
[3] T118.34.
She then denied that when he was in the back seat of the vehicle with her, she grabbed him around the back of the neck and pulled his head towards her. She denied using her right arm to hook him around the back and side of his neck in the bend of her elbow. She also denied that she kissed the accused on the mouth, that he reciprocated the kiss and that this went on for several minutes. She also denied that she masturbated him with her hand down his trousers for about two to three minutes and that after doing do, she put her hands inside of her own knickers in front of him. She denied putting her hands down the front of her knickers and moving her hand from side to side or that she left her hand there for about a minute. She also denied moving her hand around within her underwear.
She then denied that at that point, the driver’s mobile phone went off in the front of the car, he said that he had to go because it could be a job and he jumped into the middle of the car. She denied all of this.
She did accept that at some stage, the driver got back into the front of the car but she denied that when he did so, she lay on the backseat of the car with her head on the passenger side of the vehicle and that then the driver asked her to get out of his car. She emphatically denied all of these propositions notwithstanding that she was in such a state of inebriation that she could not recall earlier detail of the evening.
She then denied that she told the driver she needed ‘coke’, that he told her that she could get some from a shop or a nearby petrol station and that she then said to the driver: “it’s a different coke”. She denied all of these propositions.
She agreed that eventually she fell asleep on the back seat of the Uber vehicle whilst it was stationary on Queen Street, Norwood. She then said that she fell asleep whilst they were driving back to her home in Millswood. She agreed that the accused said to her that he would take her home. This was after he had terminated the ride. It would have been necessary for her to have re-engaged his vehicle through her phone for him to be able to charge for that ride. That was not done.
Notwithstanding her earlier denials, she could not remember telling the accused the address of her home in Millswood. She can only assume that she must have done so. She did not accept that when he typed the address that she gave him into his phone, it could not be located. She also denied the accused giving her his mobile phone and her typing the address into the phone notwithstanding that she had no memory of telling him where she lived. The address in his phone is the correct address.
She agreed that when they arrived at Queen Street, Norwood in the accused’s vehicle, she pointed to her car and said to the accused that she wanted to drive home. She said that she had no memory that the accused said to her that he was concerned whether she could get out of his car to make her way to her own vehicle and get home. She agreed that he had a concern about her getting home safely. She agreed also that she pointed to her car and said that she wanted to drive her car home. She also agreed that he said that that was not a good idea and that he would drive her home. She agreed that she told him she was tired. She also accepted that he told her that there was a pillow in the very back of the car and she should use the pillow if she wanted. She fell asleep during the ride home and she was eventually woken up at her home address by the accused. He was reaching into the back passenger door and shook her by her right leg. He then came and opened the passenger door. She got out of the vehicle. She denied hugging him at that stage or giving him kiss on the cheek.
In her statement of 24 September 2018, the complainant told Detective Bulmer that the driver found the keys for her whilst they were still at Queen Street, Norwood. She was asked which version that she had given was correct namely that given in her statement that the driver produced them to her whilst they were parked on Queen Street or, as she said in evidence in chief, that he produced them to her at her home address.
She accepted that she had the keys in her possession when she was on Queen Street, Norwood and not upon her arrival at her home. She also could not remember telling ML that the driver produced her car keys to her after he had driven her home to Millswood and when they arrived at the Millswood house. She denied that she was mistaken about all of these events because she was so intoxicated.
The complainant was then taken to her evidence about the alleged sexual intercourse. She said at transcript page 52 line 1 that on the second occasion, the accused withdrew his penis and just casually started to get dressed again. She saw him pulling up his underwear and his trousers. She said that she was trying to insinuate that the accused had not dressed, that she knew his manner was casual but now recalls absolutely 100% sure that that is what she saw. This was not a reconstruction on her part and she said that the next thing she remembers occurring was that he was dressing himself in the way that she described.
The complainant met with Detective Bulmer on 4 October 2018. She told Detective Bulmer then the next thing she could recall after the alleged penetration was that the accused was back in the driver’s seat, his clothes were on and he was sitting there as if everything was normal and nothing had happened. She agreed that on this topic of the accused allegedly redressing himself, she did not tell Detective Bulmer on 24 September 2018 that this is what she saw, that is that he pulled up his pants and his underwear. She also agreed that in none of the meetings that she had with Detective Bulmer did she tell him that she saw the accused pull his pants back up. She agreed that she had not done so but said it was never asked of her. However, she also agreed that the Detective asked her “what is the next thing that she remembered?” Therefore, her evidence on the first day of trial was the first time anyone had ever been told that she had a memory of looking at the accused pulling up his underwear and trousers. She then denied that this did not occur because at no time did the accused have his pants down. Notwithstanding that she had no clear memory of many of the events of that night after she was collected by the accused because of significant state of inebriation, she now has a memory of seeing the accused re-dress himself after allegedly having sexual intercourse with her. I have significant doubts about the truthfulness of this evidence. I consider that it is a reconstruction by the complainant to best suit version of events she would now ask me to accept.
She was then asked whether, when the accused was allegedly kneeling between her legs, that the door of the car was opened or closed. She said that she had no clear memory. It might have been open, it might have been closed.
These events are alleged to have occurred opposite the carpark of the Bath Hotel during the hours of operation of that Hotel. There is no evidence about whether patrons were entering or leaving the carpark of the Hotel. If, for example, a patron was leaving the carpark of the hotel, and turning northwards to go to The Parade, then if the backdoor of the vehicle was open, the headlights of that vehicle would, most likely, have illuminated what was allegedly occurring on the backseat of the Uber vehicle. I consider that possibility to be fanciful. First, because the vehicle was not parked there and the complainant’s memory about that matter was wrong. If I am incorrect about that finding, the suggestion that the door of the vehicle could have been opened, in those circumstances where light was spilling from the verandah of the Bath Hotel and from The Parade means that the event took place in such a public circumstance that it would have been visible to anyone passing by and anyone for example, driving out of the Bath Hotel carpark.
The complainant was familiar with drugs called Benzodiazepines (Benzos). These include drugs such as Valium, Temazepam and Diazepam. The complainant said she had not taken any of those types of drugs at any stage on the Friday night that she went to the Bath Hotel or in the early hours of the Saturday morning. She has taken those drugs recreationally in the past and would have taken those drugs probably sometime in the week prior to these events. In light of other evidence, I have significant doubts about whether the complainant could recall whether or not she had consumed these other drugs that day, that evening or at some other time. Her state of inebriation was such that I would not place any weight upon the evidence of her memory of when she may have consumed these other drugs.
Those drugs were not prescribed to her personally and they were taken only recreationally. She took them for her enjoyment rather than for medicinal purposes. Those drugs were taken in a pill form and they were not snorted through her nose. Sometimes the effect of taking those drugs is for the enhancement of alcohol but the complainant said that the major use she makes of those drugs is for relaxation or going to sleep at the end of a big night rather than to increase the fun of the night.
She was also again asked about the keys in the front of the vehicle. It was put to her that the accused did not find her keys in the front of the vehicle on Queen Street, Norwood and she also denied that he did not give her those keys at any time on 14 or 15 September 2018. She denied that at no time did he have those keys in his possession. This evidence is inconsistent with what she told her boyfriend. She told him that she had the car keys at the time the Uber vehicle was parked at the Queen Street address. That left open the possibility that she could reconnect with her friends at the Bath Hotel. She could at least get into her car although I discount any possibility that she may have driven home because of her state of inebriation. None of these things happened.
Evidence of Dr Karen Sandercock
Dr Karen Sandercock gave evidence. She is a general practitioner who also holds a Masters Degree in Forensic Medicine obtained in May 2019. She is now in general practice but was formerly a medical officer at Yarrow Place; that position involved providing medical care to people over 16 years of age who alleged sexual assault, as well as doing the forensic evidence collection and making observations from forensic examination to help police investigations of recent alleged sexual assaults.
She is a member of the Forensic and Medical Sexual Assault Clinicians of Australia and an associate member of the Royal Australian College of Pathologists.
In the evening of 16 September 2018 at about 8.00 pm she conducted a forensic examination of the complainant. This examination took place between 42.5 hours and 44 hours following the alleged sexual assaults. I have made that calculation on the assumption the assaults allegedly took place some time between 1.36 am and 1.58am on the morning of 15 September 2018. The period between 2.00 am on 15 September to 2.00 am on 16 September, is a 24 hour period; from 2.00 am to 2.00 pm on the same day is a further period of 12 hours; from 2.00 pm to 8.00 pm is a further period of 6 hours. At a minimum, the alleged rapes occurred not less than 42 hours before the examination of the complainant by Dr Sandercock and the possible range of time is somewhere between 42 and 43 hours prior to the examination by Dr Sandercock.
A weakness of the prosecution case is that no evidence was led from the complainant about her activity from 2.00 am on 15 September 2019 and 8.00 pm on 16 September 2019, some 42 hours later. Some detail was taken by Dr Sandercock. I will come to that later. However, the prosecution sought to place great significance upon the fact that at the time of the examination of the complainant, a tampon was found high in the complainant’s vagina and close to her cervix. It was necessary to use forceps to remove that tampon. The only evidence led from the complainant by the prosecution in relation to the use of tampons was that during the alleged rape she was menstruating and that she had changed her tampon and could not remember what she had done with the discarded tampon. I consider that the inability of the prosecution to lead any cogent evidence from the complainant about how often she changed tampons within that 42 hour period significantly weakened the contentions of the prosecution about much of this evidence.
Dr Sandercock undertook her examination of the complainant between 7.45pm and 8.55pm on 16 September 2018. She took a general history from the patient as a guide to the swabs that she would need to take. She examined the external structures of her vagina and identified there was some redness caused by inflammation present and formed the view that it was too non-specific to make any finding. This inflammation could have been caused by a dermatological condition such as dermatitis or alternatively something like a genital herpes. However, the identification of the redness was not sufficient specific any findings.
She took a labial swab and then swabs of the low vagina. She prepared smears. She took a buccal swab for a DNA reference after preparing labial swabs and low vaginal swabs.
She then took a high vaginal swab and an endocervical swab and prepared smears from each of those swabs. A urine sample was then taken.
At the time of the initial examination, she did not observe the presence of a tampon in the vagina. However, she could identify that there was a tampon in the high vagina, close to the cervix. She retrieved that using sponge forceps.
She said that she does not very often see tampons high in the vagina. She said occasionally in general practice doctors have to deal with tampons in the high vagina where women have forgotten that they have already inserted a tampon and another has been put in which has pushed the first tampon high into the vagina. She said it happens but it is not common.
She said that sometimes retained tampons can be in the vagina for some time before it is noticed. The usual sign of the presence of such a tampon is odour. If there is any bad odour, it is noted as part of the examination, and it is a very strong odour which is not easily overlooked. It is a very pungent and potent smell. If this tampon had smelt, she would have commented upon it in her notes. She made no identification of any odour. This means that it had not been positioned high in the vagina for long enough to have become offensive smelling. It might take two or three days for it to become offensive smelling. There was no other tampon present in the vagina at the time that she used forceps to remove the existing tampon which was high in the vagina.
Dr Sandercock was then asked whether she could express any opinion about whether it was possible that the tampon that she retrieved could have been the tampon in place at the time of the alleged penile vaginal assault. She said it is only a possibility and she could never be definite about it. She said that it was just as likely that it could have been a tampon placed in the vagina afterwards and it was forgotten. There was simply no way of telling by looking at it. It would have to be tested. The tests that have been done upon that tampon have not shown any signs of male DNA.
On the question of whether there were any injuries within the vagina itself upon her examination, Dr Sandercock said that she did observe that there was patchy redness extended throughout the whole vagina, which was the same as the patchy redness she observed externally at the opening of the vagina. Her observation was that this was a non-specific inflammation. It could be inflammation due to some sort of vaginal penetration, but it could just as easily have been inflammation due to a dermatological condition or an infection such as herpes. She said that no conclusion one way or the other could be drawn. It does not indicate there has been vaginal penetration and it does not indicate that there has not been vaginal penetration. Therefore, she could not express any opinion about that matter with any force or cogency. She agreed in cross-examination by Ms Spence that the patchy redness that she identified could also have been caused by the process of repeatedly exchanging tampons during menstruation. Dr Sandercock confirmed that the complainant informed her that since the alleged assault she had changed her clothes, showered, urinated, used her bowels and changed her tampons. She was told nothing of what happened to the tampon that had been in place and which she had changed.
The effect of the evidence of Dr Sandercock is that no conclusion could be drawn one way or the other whether there was any physiological evidence of a sexual assault. The only dermatological condition that Dr Sandercock identified was of patchy redness on the outside and on the inside of the vagina which could have been caused by any number of conditions including the changing of the tampon. It could have been a dermatological condition such as a form of dermatitis or a form of genital herpes. It could have been caused by sexual intercourse but it is not possible to say.
I am satisfied from the evidence of Dr Sandercock that by the time of the examination from 8.00 pm on the evening of 16 September, the tampon found in the high vagina area of the complainant would not have been in place approaching two days, after the alleged events of the evening of 14 September 2018. That being so and taking into account the fact that the complainant said that she had changed tampons after the event of the alleged sexual assault, and she did not make any complaint about any difficulty in removing the tampon that was in place at the time of the alleged sexual assault, it is more probable that the reason why the tampon was found in the high vaginal area of the complainant was that she had forgotten it was there.
Evidence of Emma Rose Koch

The prosecution called forensic scientist Emma Rose Koch who was employed at the Forensic Science Centre, Biology Section and has been employed there since 2008. She holds a Bachelor of Medical and Pharmaceutical Biotechnology from the University of South Australia. She holds a Bachelor of Health Sciences with Honours from Adelaide University 2006. She has been employed at the Research Centre for Reproductive Health, as a Research Assistant at the Women’s and Children’s Health Research Institute and with the Epithelial Cell Biology Centre.
Ms Koch prepared a report dated 27 March 2019 with a covering declaration of 1 April 2019. It is Exhibit P6 and comprises 10 pages.
There was a forensic evidence collection kit prepared in relation to the complainant. It collects forensic evidence and the report Exhibit P6 sets out, in part, some of the findings connected with the collection kit. It showed that there was an endocervical, a high vaginal, a low vaginal and labial swabs taken from the complainant. These were reduced to smears. All of the smears were examined and showed no male DNA including seminal fluid. The tampon worn by the complainant at the time of this examination was also submitted for analysis and no male DNA or semen was detected. It is unknown whether this tampon was the same one worn by the complainant on the night. The evidence is unclear: the complainant said first that she changed the tampon but then later said she could not recall. I think that her first evidence has more credit, that in the usual way she changed the tampon she was wearing without giving it much thought and from her point of view it was a matter of necessity.
She was then taken to the testing of the underwear worn by the complainant on the night in question. Semen was not detected on the inner crotch area of the underwear. That area gave a very weak positive reaction to a presumptive test for blood. The photographs of the complainant’s underwear are contained within Exhibit P7.
A number of tape lifts were taken from different parts of the complainant’s underwear which is shown in Exhibit P7. The results of those tape lifts are found at paragraph 19/B00992-5 and are to be found within entries 2.01-01 through to 2.01-06 inclusive, on pages 50, 51 and 52 of the Exhibit. Page 50 shows the complainant’s underwear as she wore it. Page 51 shows the complainant’s underwear inside out and page 52 shows the complainant’s underwear having been cut at the side seams.
Item 2.01-0 was a tape lift from the inner crotch of the underwear worn by the complainant on the night. The area from which the tape lift was taken is described on page 52 of Exhibit P7 by reference to the item 2.01-01. A DNA profile was generated. There was a three person mixture of DNA obtained from that tape lift. The findings were that the source of the DNA was the complainant, the accused and an unknown person. The likelihood ratio achieved was 200,000:1 that is, it is 200,000 more likely to have obtained the DNA profile if the complainant, the accused and an unknown person were the sources of the DNA rather than the complainant and two other unknown persons.
The second entry 2.01-02 was a tape lift taken from the inner front of the complainant’s underwear. It is demonstrated on page 51 of Exhibit P7, which is a photograph of the underwear of the complainant turned inside out. The area identified is the area above the crotch line up to the waist band of the underwear. It was found that there was a mixed DNA profile from 4 contributors, including the complainant, and the assessment made was that it was 9 times more unlikely that the complainant, the accused and two other unknown persons were contributors to that DNA than the complainant and three other unknown persons. This was called an exclusionary statistic and is support for the exclusion of the accused.
The third entry is a tape lift from the inner and outer front of the right leg band of the underwear. It is item 2.01-03 on the list. For the person wearing this underwear, it would show the right leg across the front of the thigh around the side of the leg aperture. This is inconsistent with the evidence given by the complainant that the underwear was pulled from right to left.
A mixed DNA profile from two contributors was identified. One of those two contributors was the complainant. It is 1.2 million times more likely that the complainant and an unknown person were the contributors to the DNA than the complainant and the accused were contributors to the DNA. This is extremely strong support for the exclusion of the accused.
The final tape lift that was submitted for DNA was item 2.01-04 which was a tape lift from the inner and outer front of the left leg band. It is also identified on page 51 of Exhibit P7. A mixed profile of three contributors was identified, one of whom was the complainant. The likelihood ratio was calculated and it was 140,000 times to 1 more likely that the complainant and the accused were contributors to that DNA profile rather than the complainant and another unknown male.
Ms Koch also gave evidence about the covering notes from the underwear seized from the accused, the photographs of which is Exhibit P8. No blood-like staining was detected on the underpants and no blood was detected upon them. That is significant as the underpants are alleged to have been worn by the accused immediately after twice having sexual intercourse with the complainant on the backseat of the vehicle when, at the time, the complainant was menstruating.
A single tape lift was taken from the inner crotch area of the underpants. On Exhibit P6, the results are identified at item 3.01-01. It was found that there were 4 contributors including the accused to the DNA profile. The likelihood ratio was calculated at 250,000 to 1 in favour of the inclusion of the complainant as a source of the DNA.
Ms Koch agreed that DNA may be transferred by touch, through clothing, a connection between pieces of clothing and it is impossible to say how a particular piece of DNA got to a particular place or how long it had been there.
Evidence of Professor Jason White
Professor Jason White gave evidence and his affidavit is Exhibit P13. His evidence concerned the toxicology report of the urine sample obtained from the complainant the day after the alleged events, together with his opinion in relation to a number of matters about which he was instructed. His curriculum vitae is Exhibit P14.
Exhibit P9 is the urine toxicology report of the sample of the complainant taken on 16 September 2018. The urine sample was found to contain the following:
3,4-methylenedioxy methylamphetamine (MDMA);
3,4- methylenedioxyamphetamine (MDA);
Methylamphetamine;
Cocaine;
Benzoylecgonine;
Teramisole/levamisole;
Nordiazepam;
Oxazepam;
Temazepam;
Citalopram.
Professor White said Nordiazepam, Oxazepam and Temazepam fall into the class of drugs called “Benzodiazepines” or “Benzos”. He could not say when those types of drugs could have been consumed other than to say it could have been up to a week or between a week and a month before the urine sample was taken but conversely, it could have been a day or a couple of days before the sample was taken.
He said the drugs could have been taken more than a week before the test depending on how often that person was consuming the drugs prior to the last occasion. If the person was using the drug every day, it would persist in a urine sample for a longer period of time than if a person used it on one day but had not previously used it for a number of days. Based upon the information before him, Professor White was not able to say whether the complainant would have been affected by or under the influences of a Benzodiazepine type drug bearing in mind the window of time of the alleged offending.
Citalopram is a prescription antidepressant. That drug is also known by the brand name “Lexapro”. The methylamphetamine detected in the urine could have been due to an amount of methylamphetamine being present in the MDMA capsule taken by the complainant. It could also have been due to methylamphetamine taken separately. Methylamphetamine is normally detectable in urine for three days and up to six days after the last use.
The occurrence of cocaine, Benzoylecgonine and Teramisole/levamisole in the urine were likely due to her having consumed cocaine which is normally detectable in urine for a few hours up to 24 hours after last use. Benzoylecgonine is a metabolite of cocaine and is detectable for 2 to 3 days after last use. It might be detectable for longer. Teramisole/levamisole have the same molecular chemical composition and structurally they are mirror images. Levamisole has been found in samples of cocaine for many years and is believed to potentiate the effects of cocaine. Nordiazepam is a metabolite of the Benzodiazepine drug Diazepam and is usually found in urine after Diazepam has been consumed. Its presence indicates that the complainant had consumed Diazepam.
Oxazepam and Temazepam are both prescription Benzodiazepine drugs. They are very similar to Diazepam. It is possible that the complainant consumed one or both of Oxazepam and Temazepam in addition to Diazepam. However, both are metabolites of Diazepam. Nordiazepam, Temazepam and Oxazepam could be detected in urine for a period from three days up to a week after last use of Diazepams.
Professor White said that MDMA has the potential to induce a range of emotional changes depending upon the amount of the drug consumed, the individual and her particular circumstances. Usually their effect is an increase in friendliness, closeness to others and sociability. There may be euphoria. Conversely, it heightens negative emotions such as fear and anxiety. Fatigue is diminished by MDMA and a person may be able to be continually active and awake for a long period of time. It may induce perceptual changes ranging from impairment of normal visual perception to visual hallucinations. Impulsive behaviours or risk taking is increased by MDMA. An overdose of MDMA can cause a fatigued person to become more energetic but higher doses of MDMA produce two major changes that affect cognition. The first is thought disorder which is confused thinking or inability to think clearly and the second is lack of contact with reality. As a result, a person may be unable to comprehend what is happening in the environment and there may be a resultant potential for erratic unpredictable behaviour because the person may appear to be confused and disorientated. These effects typically last about 4 hours but can last up to 6 hours when multiple tablets are consumed. Peak effects are experienced 1.5-2 hours after ingestion. The ability to recall events occurring during a period of MDMA intoxication may be impaired.
Methylamphetamine produces an initial intense effect called a “rush” which lasts from seconds to minutes during which a person feels euphoric, confident and energetic. Fatigue disappears but the effect can also result in insomnia. The high level of confidence may be associated with risky, impulsive or reckless behaviour. Over the following hours the effects are mild but higher doses produce more exaggerated effects and may also produce adverse effects such as mental and or physical agitation, rapid speech, confused thinking and irrational and erratic behaviour.
Methylamphetamine can also produce psychotic effects including paranoia manifested by suspicion and intense fear which is irrational and possibly bizarre. The drug may also produce hallucinations and delusions usually associated with paranoia. Psychotic effects may become more prominent with prolonged use of the drug.
The physical effects of the use of methylamphetamine include increased heart rate, blood pressure, body temperature and sweating and these main effects last for about 6 hours. There may be continuing effects.
The effects of cocaine are very similar to methylamphetamine however cocaine has a much shorter duration of effect of no more than 30 minutes. These include euphoria, increased confidence and feelings of energy; the effect of increased confidence may also then be associated with risky, impulsive or reckless behaviour. Higher doses produce more exaggerated effects and cocaine can produce psychotic effects such as paranoia, hallucinations and delusions. The physical effects again produce increased heart rate, blood pressure, body temperature and sweating.
Diazepam is a prescription drug which has therapeutic effects for the relief of anxiety, the induction of sleep and its most common adverse effect is sedation. An affected person may have very little concern for what is happening, associated with confused and sometimes irrational thinking. Diazepam can produce disinhibition resulting in risky and impulsive behaviours and this is more likely to occur if Diazepam is used together with alcohol. A person significantly affected by Diazepam will be unlikely to be able to recall events that occur, and the degree of memory impairment depends upon the degree of effect of the drug.
Citalopram can have an arousing effect causing agitation and insomnia associated with anxiety. Conversely, it may cause drowsiness, sedation, confusion and weakness. The effects are relatively mild and usually diminished within the first week or two of taking the drug.
The ingestion of alcohol has many effects such as the obvious of slurred speech, staggering gait and glazed eyes. This usually occurs at a concentration of 0.10-0.20%.
Thinking and decision making are impaired by alcohol and the affected person can only think at a simple level. Concentration and attention are also impaired and the affected person may fail to perceive situations correctly and may make errors of judgment.
Alcohol can produce disinhibition, leaving the affected person to engage in impulsive, risky or reckless behaviours because the affected person has less than normal concern for consequences. Disinhibition usually becomes evident at blood alcohol level concentrations of 0.08% and above and with a blood alcohol concentration of 0.10%, changes in mood are likely to be more rapid.
Sexual behaviours are affected. The disinhibiting and anxiety reducing effects of alcohol may enhance sexual behaviours at a moderate blood alcohol concentration of 0.03-0.08% and lack of normal inhibitions or restraint may occur at higher blood alcohol concentration. Memory may also be impaired by alcohol and thus the person may not recall details of all of the events that occurred during the time she was intoxicated.
Memory is impaired by excessive alcohol consumption which in turn may cause a person to experience a blackout or a complete absence of memory. This would usually occur at a blood alcohol concentration of in excess of 0.25%.
When alcohol is combined with methylamphetamine, cocaine and MDMA, there is a greater propensity for impulsive or risky behaviours.
Diazepam and alcohol have many similar effects including sedation, reduced anxiety, confusion, irrational thinking, impaired memory and disinhibited behaviours. The risk of sedation and sleep is higher as a result of combining alcohol with Diazepam.
Notwithstanding the content of his affidavit, in evidence, Professor White said that cocaine is normally only detected in urine for a period of 24 hours. He said the detection of cocaine meant there is likely to have been some cocaine consumption within a period of 24 hours prior to the urine sample, that is from around 8.30 pm on the Saturday. It could have been taken earlier than that.
He did a calculation of the blood alcohol content of the complainant, assuming she is 172 cm tall and weighed 52 kg. He approximated the amount of alcohol consumed and assumed a metabolization rate of 0.18%. This is higher than the average rate across the population of 0.15%, however, he has made an assumption that for a person who has drunk so much alcohol and is still a functioning human being, the appropriate rate of absorption is 0.18%.
He said he made an assumption that the complainant started drinking at 3.30 pm. He assumed that over 1 ½ hours from 3.30 pm on the Friday, the complainant consumed 3 schooners of cider. On the same day between about 5.00 pm and 6.00 pm she consumed a further two bottles of cider and then, over the following hour, a further bottle of cider. He then assumed that over the next 1 to 2 hours, she had three to four drinks of gin and that over the next 1 ½ hours, she had five shots of gin. Then, from midnight until about 1.20 am, she had a bottle of Smirnoff Ice and had another four shots of gin. On the evidence, I consider that this is an underestimation of the alcohol the complainant consumed on the night.
He said he estimated a blood alcohol concentration of .32%. He said it could have been up to .4%. That is an extraordinarily high level of alcohol concentration. In some people, it could have near fatal consequences. It would have a very marked effect on the complainant and she may readily lose consciousness as a result. She would have very little awareness of what was going on around her. She would be feeling tired and woozy, dizzy and confused. She would not feel in her right mind. She would have some difficulty controlling her physical movements and the alcohol would have a sedative effect. She would be prone to falling asleep but she could be roused from such sleep.
He also assumed she consumed an MDMA tablet some time between midnight and 1.00 am and it appears only to have had a minimal effect. It did not appear to have a very significant stimulating effect which is what he would otherwise assume. He thought that a relatively small dose of MDMA would not have a great deal of effect on someone with a blood alcohol concentration around .32% or higher. It would certainly not reverse all of the effects of alcohol but might mean she would stay awake for longer. It also might conversely mean that such a person might be roused from sleep more easily.
The effect of such a consumption of alcohol would also have an effect on memory. Such a person would have a patchy memory of events. She would not have a clear continuous memory of everything that happened. She might have what are called blackout experiences, where she appears to be functioning but is effectively unconscious and so she has no memory of what happened. She may not be able to form memories once she got to a particular level of blood alcohol concentration. If she had a blackout, then no prompting or reminding would enable her to recall what had happened, even though she may have appeared to be functioning at that time.
I consider this to be important evidence, as I am satisfied that on the night, after at least 1.30 am on 15 September 2018, the complainant manifested all of these physical characteristics. She was able to find the Uber vehicle but appears then to have lapsed into a form of comatose state. She had only the barest familiarity with where she might be at the end of the trip, she did not know where the Uber car parked, or on which side of the street, or consequently, which way it was facing. She had her car keys at some time after the Uber stopped but she did not get out of the vehicle. The charge meter was not turned off on her instructions that she cannot recall giving. The vehicle was stationary for 18 minutes. She was in the vehicle for at least 2 hours after that time. She had no particular memories about any of these matters, events, timing or time periods.
She would also be prone to confabulation where she could have memories that were inaccurate and she might have some information which she believes to be true. She might have some information which she believes to be true but is not completely accurate. She might have erroneous memories where she is confabulating different events into a memory.
Professor White accepted that the complainant would have had great difficulty really saying what it was that she had drunk and this would have a significant effect upon her blood alcohol content and her memories. People who are at this level of inebriation will often not be an accurate historian about what they have consumed. She may be able to function, such as using phones but she would have great difficulty, at that level of blood alcohol concentration, to cross a street such as Hindley Street at that time of the night. She would be very obviously affected by alcohol when doing so.

Mr Wilson said that an overlay upon all that evidence was the DNA evidence but as I put to Mr Wilson, that evidence does not provide that level of support for the prosecution case. The evidence of the complainant was that her underwear had been pulled from the right-hand side of her body, towards the left-hand side of her body and up towards the top of her left leg so as to expose her genitals. The DNA evidence does not show the identification of a preponderance of DNA of the accused on the right-hand side of the underwear so touched, which would have been required to be held back and up in the manner that was described, so that the penis of the accused could obtain access to the genitals of the complainant. To the contrary, any DNA is on the opposite side of the underwear. The complainant was adamant that the underwear had been pulled from the right to the left and upward. As I put to Mr Wilson, in order for that to have happened, logically, the accused had to use his right hand and to then hold the underwear in place so that he could have intercourse with the complainant as she alleged. No DNA of the accused was found in those places where it may be expected on the complainant’s version of events. Also, no DNA of the accused was found on any internal swab of the complainant and no DNA was found on the tampon removed from the complainant. The only place that the DNA was found was on the outer left leg band of the underwear of the complainant. This is not consistent with the complainant’s version of events.
Then in relation to the tampon, the evidence does not support the submissions of the prosecution. If a tampon had remained in place from the time of the alleged rape until the internal examination then, upon its removal, an odour would have been detectable. Dr Sandercock described this as an unmistakable odour. No odour was detected. The complainant said initially in her evidence that the tampon which she had been wearing on the night had been removed and disposed of by her. She then said that she could not recall. The prosecution then relied upon the complainant’s evidence. It did so on the basis that it is consistent and also provides an independent body of evidence concerning the distress of the complainant. The prosecution relied upon the decision of the Full Court of the Supreme Court of South Australia in The Queen v Dihir (2019) 133 SASR 452 at [61]-[75] and The Queen v El Rifai [2012] SASCFC 98 at [91].
It is not necessary here to discuss the principles to be derived from those well settled authorities. The weakness in the submission of the prosecution is that it chooses one of two versions of inconsistent evidence upon which to rely in proof of its case. That version is inconsistent between the two versions given by the complainant and then the evidence about odour from Dr Sandercock which I found to be credible and compelling evidence.
Finally, the prosecution submitted that the version of events given by the accused was fanciful in light of the fact that the vehicle was in place on Queen Street for some 18 minutes and all that the accused could say was that he had waited for a period of time to allow the complainant to go on searching for whatever it was that she had lost in the back seat and then he got into the back seat with her and she was allegedly sexually assaulted him.[18] So also was the assertion that the complainant told him that she wanted coke and not the liquid. This should be seen as an attempt by the accused to construct a version of event, taking into account what was found in the testing of the urine of the complainant.
[18] T 369.31.
The defence submitted that the prosecution has not discharged the burden of proof beyond reasonable doubt. There was no scientific evidence to support any penile vaginal penetration or digital penetration. On the vaginal swabs, there was no male DNA detected.[19]
[19] T 161.6.
I consider that the absence of that DNA cannot assist the prosecution. Moreover, I had some concerns about the evidence given by Ms Koch. Her evidence is as follows:[20]
Q. If I can just go back briefly to the results from the intimate swabs, if you like, of the complainant. If you assume that she reports having the accused's penis put into her vagina about 30 hours before the swabs were taken and that she showered at least once between the alleged assault and the swabs being taken, are you able to express an opinion about the significance or otherwise of the absence of any male DNA.
A. The absence of DNA does not mean that it was not there at some point in time. We can only report on what's detected. And unfortunately, I haven't detected any male DNA, that of the defendant's or anyone else.
Q. Can washing or showering affect the persistence or ability for DNA to be recovered.
A. Yes. As can wearing a tampon, pulling it in or out and putting a new one in, pulling it out, and general discharge, movement, activity levels. All of that can account for how well - the vagina is a self-cleaning organ, so it creates its own discharge and cleans itself out so the longer since the alleged event, then the less likely you are to recover DNA over time.
Q. I suppose, putting it another way, there was no male DNA detected from those swabs.
A. No.
Q. But the absence of male DNA being detected doesn't mean that she couldn't have had a male's penis inside her vagina 30 hours before the swabs were taken.
A. No. And I believe she had a consensual partner from a few days before that as well, and none of that was detected either.
[20] T 175.33-176.24.
I raised with Mr Wilson the fact that the witness, called as an expert, had said that ‘unfortunately’ she had not been able to detect any male DNA in any of the vaginal swabs taken from the complainant. Mr Wilson did not remember that evidence. I informed him that I had doubts about the evidence of any witness who would say to me that unfortunately, she could not detect any male DNA on a vaginal swab. As I said to Mr Wilson during submissions:[21]
…why ‘unfortunately’; what on earth is she talking about …
[21] T 360.10-15.
In fairness to him, Mr Wilson then conceded that he would not seek to elevate the absence of any such evidence to positive evidence. The submission of Ms Spence was that there is no scientific evidence to support any allegation of penile vaginal penetration or digital penetration. So also, no male DNA was ever found on any of the tampons worn by the complainant. The tampon removed from the complainant gave a negative result for seminal fluid.[22] Therefore, there is no separate scientific evidence disclosing any support for the prosecution case. There is no male DNA and no evidence of any seminal fluid.
[22] T 162.11.
In relation to the DNA on the underwear, Ms Spence emphasised that Ms Koch accepted that there can be secondary and tertiary transfers of DNA and it is a recognised phenomenon. It is therefore not surprising that there is DNA from the complainant upon the underwear of the accused in light of the version of events that he gave. Nor, for the same reasons, is it surprising that there is some DNA upon the underwear of the complainant but on a side of the underwear, not supported by the version of events given by the complainant. A reasonable explanation is that this could have occurred as a result of her touching him and then touching herself. There was no DNA result from the right-hand side of the underwear that had to be moved consistent with the evidence given by the complainant. Therefore, the DNA evidence does not support the version of events put forward by the complainant. It is a weakness in the credibility of the complainant’s evidence. It significantly weakens her reliability.
The defence particularly attacked the credibility and the reliability of the complainant’s evidence. The complainant gave wrong evidence on a number of matters. For example, she said that she had been working at the café with ML for about 6 months. His evidence was that she had been working there for at least two years.
The complainant said that she had been in a relationship with ML for only a short time. She said it had not been a very long time, perhaps a couple of months. In his evidence, ML said that he had been in a relationship with the complainant for perhaps up to a year from late 2017. Alternatively, it could have been from sometime early in 2018.
In many of the answers that the complainant gave, her account was so vague as to be unreliable. For example, she said that she sourced the MDMA at the Red Square night club and she thought it was from one of the girls.[23] Then in cross examination, she said that it was either one of the girls or the other. She could not recall and said that the inconsistencies between her answers was that she was so intoxicated that she could not recall. Ms Spence criticized this approach as really being that she was including everyone just in case she was making a mistake.
[23] T28.10.
In a witness statement that she gave on 24 September 2018, she told Detective Bulmer that when they arrived at the Red Square night club, she bought a bottle of Smirnoff Ice. Conversely, in her evidence and in cross examination, she said that she thought her friend got it and referred to it as being in a little glass bottle. Ms Spence criticized this evidence as an attempt by the complainant to portray herself as not having much knowledge of this little glass bottle. She was challenged about the inconsistencies of her evidence about who bought the Smirnoff. She said that she did not have a certain memory now and then said that the memory she had now was her evidence. That was not consistent with the statements that she had made to the police, bearing in mind as I have earlier recounted, that she met with the police, later gave a statement to the police, there were four addendum statements, and then there were a number of proofing sessions. Again, she said that the memory she had now was that this purchase could have been made by her friends O or L who were with her and so, the purchase of the Smirnoff bottle had changed from her original statement that she had bought it to one of the three of them buying it.
She accepted that she had told the police that she was pretty certain that she had bought the bottle. Then she said that they were buying rounds and so someone might have paid for it and she bought a round at some stage. However, no one was buying rounds of Smirnoff. She said that after the original Smirnoff she went back to drinking gin and that she had been drinking at the Bath Hotel. She had at least four gins and oranges. She was able therefore to distinguish the drinks that she had been consuming at Red Square between the Smirnoff and the gin and that when she bought drinks for herself that she had got gin and orange. The evidence that she gave on those topics was vague and changeable.
Ms Spence made particular criticisms of the evidence that the complainant gave about the keys that she is alleged to have lost in the vehicle driven by the accused. First, there is no logical explanation about how her keys could have come to be out of her bag. I am satisfied that, on the evidence, her intention when getting back to the Bath Hotel was to keep on partying. She wanted to catch up with her friends again at the hotel and there was no reason therefore why she should take her keys out of her bag. In her evidence, she said that she had thought that she had not taken her keys out of her bag prior to pulling over and so it is illogical that the keys could have been outside of the bag.
Then she said that she had a clear recollection that the keys were given to her when she arrived back at Millswood.[24] I understood from this evidence that she was attempting to satisfy me that the accused had the keys all along and that he gave them back to her when she got home at Millswood. On 24 September 2018, she gave a statement to the police that she retrieved her keys at Norwood before being driven to Millswood. Therefore, she told the police very soon after the events that she had the keys in the car at Norwood and was then driven to Millswood by the person she said had just raped her. That cannot sit with her version of staying in the car in those circumstances. She was cross‑examined closely on the point and then conceded that she had the keys at Norwood. She agreed that now, on her story, she could only have been given the keys by the accused but he had to find them. He said there was no mention of keys and he did not search for or find them. She suggested that she was confused about which part of the trip was being discussed when the keys were given to her. There was no evidence as to where the accused might have found the keys in the vehicle at that time. That evidence is entirely inconsistent with her version that the accused held onto the keys and gave them to her when she arrived at the address at Millswood, suggesting that he had them all the time and was taking advantage of her. In my view, that is a contrived piece of evidence. At T58.20, she was asked by the prosecutor whether she remembered the trip to Millswood and her arrival. She said:
The main thing I remember is that he actually - I was about to get out, I didn’t say anything and he grabbed, like, something out of the front seat area, I believe it was – and, like, it - it’s, like ‘here I have found your keys’ which had been missing and we like, scoured the car for, which I found really weird but that’s was what happened and then I didn’t say anything else, just grabbed them and went inside my house.
[24] T58.26.
She confirmed that her story then was that the accused gave her the keys after the point when the car had stopped at the home at Millswood. She also told ML that the keys were returned to her at the Millswood address. That was inconsistent with the version that she gave to the police that she found the keys at Norwood. If that was the case, she did not just get out of the car and go to her car and drive home, or do something else such as catch up with her friends at the hotel. Ms Spence submitted that there was only one retrieval of the keys. It was not like the topic of how many drinks that she might have had at any particular location. Because it is only one set of keys, there was one retrieval of the keys and she could not be confused about that. Confusion would only arise if her evidence on that topic was contrived and she had manufactured an answer to try to fit the case she was alleging.
Ms Spence submitted that this was just another manufactured deception, such as her evidence of her drinking at Boutique Paws on Glen Osmond Road, Fullarton. The evidence of the complainant was that she went there to see her friend Am and said she had some drinks. Am’s boss may have been there or he may have left. She was asked whether she had ever disclosed to the police or ever told the prosecution in proofing that she had drunk alcohol with Am at Boutique Paws. She said that she had not. The first time she mentioned anything about drinking at Boutique Paws was when she gave evidence in court. However, she was adamant that she did have drinks at Boutique Paws, and she said what she had to drink there, namely two bottles of apple cider.
When Detective Bulmer gave evidence, he said that during proofing of her and then taking her statement, he would have asked her whether she had any alcohol at Boutique Paws. If he had been told that she had alcohol there, he would have recorded it in her statement. There is nothing in the statement recording the consumption of alcohol in Boutique Paws. I am satisfied that she was asked that question by Detective Bulmer and she did not inform the police about having any alcohol at Boutique Paws. I am satisfied that the evidence that she gave about the drinking at Boutique Paws is a contrivance on her part. It is again not necessary that I try to resolve why she would create that contrivance. It was suggested that she wanted to inflate the number of drinks that she had to make herself seem drunker. That would be a peculiar development. However, notwithstanding that she was confronted with the prior inconsistent statement that she had given to the police, she insisted that she did drink at Boutique Paws. I am not prepared to accept that evidence. I think it is so unlikely that the two women drank at Boutique Paws that I could not accept that evidence on any basis. The evidence is that they both went back to the Cremorne Hotel and the complainant said that she had changed her drinks to bottled cider. She said this was the same bottled cider that she was drinking at Boutique Paws. However, this is the first time that she had ever given that evidence, notwithstanding all of the attempts to complete her statements and then to proof her preparatory to her giving evidence. I do not accept her evidence that she had been drinking at Boutique Paws.
In her evidence, the complainant also said that she saw the accused pulling up his underwear and pulling up his pants in the process of redressing after the second event of penile vaginal penetration. She said that he had removed his penis and was rather casually getting dressed again, pulling his pants back up. It is to be recalled that her evidence is that this took place immediately opposite the car park of The Bath Hotel, at a time, according to her evidence, when there were patrons still at the hotel and, presumably, coming in and out of the car park. The lights of any vehicle coming out of that car park would have shone immediately on to the vehicle of the accused.
In cross-examination, the complainant accepted that she had told Detective Bulmer of the events in the vehicle.[25] She had never told Detective Bulmer in any of those meetings that she saw the driver pull up his pants. She was asked about the matter in the proofing, and she said that all she could recall was the next thing seeing the accused sitting in the front of the Uber car all dressed, like nothing had ever happened. No mention was made of her watching him redress himself.
[25] T126.30.
In her evidence, she reiterated that the accused was casual in going about getting dressed again, pulling up his pants and getting into the front seat of the car. That is completely inconsistent with the memories which she had immediately following the event and in all the statements that she gave and in all the proofings that she had.
Also inconsistent was her evidence about where the Uber vehicle was parked.[26] She accepted that her car was parked on the same side of Queen Street as the Bath Hotel and that the Uber was parked on the other side of the Queen Street from which she had parked her car. This is the content of Exhibit P1. That evidence is incorrect. Also, in relation to the Uber information, I accept the criticisms of the accused that the Uber information ends at the time that he had arrived at the Millswood house. That does not mean that he did not pick up other Uber fares at that time. Also, there is no evidence from Uber that he did any form of u-turn on Queen Street and parked opposite the entrance to the car park of the Bath Hotel. The movement and the GPS coordinates of Uber do not match the recollection of the complainant.
[26] T21.33.
In relation to the complaint evidence, Ms Spence submitted that rather than her making a complaint, the evidence was led by her from ML. It was not so much that she made a complaint as him asking her questions such as whether she was penetrated, whether he ejaculated inside of her, what particularly happened. She was not the person who said something in particular had happened to her. Everything that is being said is in response to a question from ML. That places some doubt upon the reliability of this complaint evidence.
I am unable to use this evidence to demonstrate the truth of what was reported. This evidence is before me to inform me of how these allegations came to light and to allow me to consider the degree of consistency of conduct on the part of the complainant. I take into account that there may be reasons why the complainant told ML about these alleged offences at that time. It is up to me to decide what weight I give this evidence in the circumstances of this case.

I have placed little weight upon this evidence because initially the complainant did not make a complaint as such but rather incoherently said that something had happened. She was then questioned by ML and the topic of the questions became the narrative of the discussions; it became almost self-fulfilling. And it was all affected by the state of the complainant on the night: its credibility could rise no higher than her own.
Ms Spence also relied upon the evidence of Dr Jason White in regard to confabulation. Ms Spence attacked the reliability of the complainant’s evidence having regard to her very high level of intoxication, both with alcohol and with drugs. She submitted that the complainant might think that she remembers something, and she might believe it to be true because of confabulation. That is to be assessed in the background that because of the inconsistencies of her evidence, her prior inconsistent statements and that she was such a poor historian, which, she now says, is a result in part of having consumed so much alcohol.
As I have earlier described, the evidence is that metabolite of cocaine exists in the urine when it has been taken within 24-48 hours according to the evidence of Professor Jason White. It is possible that it has been taken over a longer period of time but most commonly within 24 hours. There was a metabolite of cocaine in the urine sample of the complainant. She emphatically denied taking cocaine after the time that she was dropped off at the Millswood home. Therefore, the only way that they metabolite could have been in her urine was if she had taken cocaine at some earlier time within that 24-48 hour period. For the whole of that time, she was drinking and was night-clubbing. No explanation was given by the complainant about how this cocaine could have got into her system. I am satisfied on the evidence, that her memory about the consumption of the cocaine is incorrect and is another part of the confabulation of evidence as a result of the inconsistencies on her memory because of the adverse effects of the alcohol and the drugs. I am satisfied that there could only be one explanation for the presence of cocaine.
This evidence about cocaine must be viewed in the background of evidence that the accused said that she wanted some coke (meaning cocaine) when she was in his car. It was suggested by Mr Wilson for the prosecution that the accused gave evidence on this discussion about coke in the vehicle in Queen Street to discredit the complainant. As Ms Spence submitted, if that was the case, and if he intended to do it in a knowing way, why would he not make an assertion of a discussion for example, about methylamphetamines. She rhetorically asked the question whether the accused was a mastermind who just happened to pick something that has the shortest (detectable) life. She submitted that the assertion he had recently concocted the coke story to cover up for his behaviours were fanciful. I am satisfied on the evidence that the conversation about coke occurred and it was raised by the complainant. I think that in light of the evidence in Exhibit P9, the evidence of Professor White and the known short term immediate effects of the consumption of cocaine, that there is a genuine possibility this conversation took place. At the time the complainant was falling in and out of consciousness. She had previously used cocaine. She wanted to link up again with friends at the Bath Hotel. She needed something in the state she was then in; one possibility with which she was well familiar was cocaine. I reject the prosecution’s submission that the evidence about this conversation was fanciful
Ms Spence also reiterated that it was an extraordinarily brazen thing to do to rape a drunk comatose woman in the back of Uber vehicle when there is an electronic record of the vehicle, the commencement of the trip, the end of the trip, the driver and the person who was the passenger. All these identities and this information are easily ascertainable.
She also criticised the absence of any DNA evidence. There was no ejaculation. No condom was used. As Ms Spence submitted this would be extremely brazen offending for a family man with seven children running three jobs to feed his family to risk his livelihood in an Uber taxi, to lose that income just to commit this crime. It defies logic.
She also addressed the criticisms of him sleeping in the car. He has to sleep in the car when he can because he must catch whatever sleep he can in light of the fact that he is working three jobs. Considering that, it is not logical to risk everything to rape a comatose woman in the middle of Norwood and take her home. Also, there is no evidence of what happened in the two hours after he left Queen Street to the time he got to Millswood.
Finally, I address the question of, whether the versions of events given by the accused is a reasonable possibility, that is whether it is reasonably possibly true. As I put to Ms Spence at the time of submissions, I had some difficulties completely accepting his version of events. The view I have formed was that there are unlikely aspects of this version of events put forward by the complainant: that she would in all her unconsciousness have a moment of lucidity sufficient to decide to grab him with her right arm around his neck, kiss him and put her hand down his pants. Ms Spence relied upon the evidence of Dr Jason White that there are black out moments when a person is completely inebriated, that the person is awake and appears to be responding but is in fact suffering a black out. She suggested that it is a reasonable possibility that this is just such a moment and such an event has therefore occurred. She also suggested that there is no explanation why he would stay in the vehicle for a couple of hours in the presence of the complainant whom he is alleged to have just raped in circumstances where he could not charge her for the fare, she did not pay anything for it and she was the person who filled in the address on his phone. Ms Spence submitted that this is evidence that there was no angst amongst two people who have allegedly just experienced such a traumatic event. She submitted that all that evidence is only consistent with the version of events put forward by the accused that the complainant was happy for him to drive her home, for her to sleep in the car, for them to be together for a period of two hours and that she then got out of the car. Ms Spence submitted that this placed the version of events put forward by the complainant in even more serious doubt.
I accept these submissions by Ms Spence but that is part and parcel of finding the complainant to be a witness who was not credible or reliable. As a result, I am not in a position where I am satisfied of proof of the elements of this charged offence beyond reasonable doubt. It is troubling that in some respects I am not in a position to be able to say where the truth lies. I am not able to reach that conclusion only because of the very grave doubts that I have about the prosecution case and about a portion of the version put forward by the accused. I reach that conclusion after giving him full credit for having gone into the witness box and subjected himself to cross examination.
I am not satisfied beyond a reasonable doubt that the prosecution has proved each of the elements of the charged offence to my satisfaction beyond a reasonable doubt.
I acquit the accused.