R v Nelson
[2005] SADC 154
•18 November 2005
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v NELSON
Criminal Trial by Judge Alone
Judgment of His Honour Judge Barrett
18 November 2005
CRIMINAL LAW
Criminal trespass in a place of residence; Rape; Attempted rape.
Criminal Law Consolidation Act 1935, referred to.
The Queen v Pascoe (2004) 90 SASR 509; Tovehead Pty Ltd v Freeman (2003) 175 FLR 311; R v Collingridge (1976) 16 SASR 117; Azzopardi v The Queen (2001) 205 CLR 50; Mule v R [2005] HCA 49, considered.
R v NELSON
[2005] SADC 154Introduction
The accused has pleaded not guilty to charges of criminal trespass (count 1 on the information), rape (count 3) and attempted rape (count 4). No guilty pleas have been entered before me. These counts relate to events late on the evening of the 18th November 2004 going into the early morning of the 19th November. The principal witness, Ms Pittaway, gave evidence that a man did certain things to her during that time. She gave evidence of the three offences mentioned above and was challenged on each. The accused did not give evidence. What was not challenged, either in cross-examination of Ms Pittaway, or in counsel’s address is that the accused is the man who was with her on that night. It is not disputed he came into her house on the 18th November (although it is disputed he did so as a trespasser), that he removed her and her four year old daughter from the house and kept them in his control for an hour or more, that he took them to some scrub outside Ceduna and that there some sort of sexual contact between them. It is not disputed that as she was driving away the accused punched her in the face and took her car, leaving her and her daughter on the side of the ride. It is not disputed that he drove some 150 kilometres west of Ceduna. In summary then, what is in dispute is that he entered her house as a trespasser, and that when he took her to the scrub land he raped her and it is disputed that in a separate incident he attempted to rape her. The Crown bears the onus of proving each element of each of those offences beyond reasonable doubt.
The Evidence
I deal with the evidence I have heard.
The first Witness was Ms Jody Pittaway. She is 27 years old and lives in Chadwick Street, Ceduna. She lives there with her two children, Joshua who is now 8 and Rebecca who is now5. She has lived at that address since 1996. She separated from the children’s father in 2001. She has worked at the Ceduna District Health Service since 1992 doing cooking and cleaning. She was born in Whyalla and grew up in Ceduna. She left school halfway through year 10. She gave her evidence by remote control television. Her mother was present with her as court companion.
On 18 November 2004 Ms Pittaway had a hairdresser’s appointment and arrived home about 5.00pm. She washed her car and then put on the evening meal. She later had a cup of tea with a visitor. Her son went to bed. She and her daughter went into the lounge at the front of the house where she started doing a workout on a walking machine. For this purpose she had sports clothes on including track pants. She had nothing on her feet. The front door and two back doors of the house were shut but not locked. Lights were on. She had vertical blinds in the lounge with slats missing. The front of her house was 4 to 5 metres from the street. She had music playing. From this evidence it might be inferred that anyone in the street would realise someone was home and may have been able to see her and her daughter in the front room.
At about 10pm (page 37) while exercising, Ms Pittaway could hear fighting outside. She could hear male and female voices. She said that did not usually bother her. I took that to mean it was not an uncommon occurrence (see page 51). After a while she heard her dog, a blue heeler kelpie called Casper, barking. She turned the music down and went into the hallway near the front door where she found an aboriginal man. From later evidence there is no dispute that this was the accused. I will so describe him although Ms Pittaway never identified him nor referred to him other than as “the man”.
She said he stood there wobbling a bit (page 20). She said her first impression was that he was grossly intoxicated (page 50). Nevertheless she said he spoke clear English and she had no difficulty understanding him (page 52). She said that he had bandage wrapped around one hand (page 52). She told him to get out, that he shouldn’t be there, and she pushed him out the door. As she shut the door he pushed back in. She smelt alcohol on him and there were other mixed smells of smoke (as might be from a bonfire) and urine. He said that he was being chased and that someone might kill him. She agreed he was upset when he was telling her this (page 52). Ms Pittaway said that she would call the police but the accused said he didn’t want that to happen. She picked up the phone and dialled 000 but he put his hand on the receiver disconnecting the call (page 21). He said he wanted her to take him out bush and that if she did as she was told he wouldn’t hurt her. She said that she was “sort of frightened” (page 21). She knew his strength from the way he forced open the door. She decided to comply. He had said he wanted to go to the Homelands and she took him to mean a camp some 15 kilometres from Ceduna where aborigines stayed. As she went to get her car keys she went to turn on the light in the kitchen. The accused said he didn’t want her to do that but she said she couldn’t find the keys in the dark. She turned the lights on and found the keys. There followed an exchange of words involving Ms Pittaway, her daughter and the accused. Her daughter Becky said she wanted to come too. The accused said he did not want her to come. Becky started screaming and the accused gave in. All three got in Ms Pittaway’s Ford Telstar. The accused was in the front passenger seat, Ms Pittaway in the driver’s seat and her daughter Becky behind her. I will not detail the journey.
Ms Pittaway followed the accused’s directions. As they were driving out of Ceduna Ms Pittaway passed a police car near a group of people. She said she saw it too late to stop. The accused said “Don’t try anything”. She said that he told her that he thought the police would be looking for him. He told her he had hurt someone (page 57). They ended up off the Eyre Highway and off a dirt side road on to a track in the bush. The location was not near an aboriginal camp, nor so far as Ms Pittaway could see, near any habitation. Ms Pittaway said that she was very frightened (page 24). She realised that the accused was not “telling the truth” as she put it. He asked her to turn off the car lights. He said he wanted the keys to the car. He told her to get out of the car. She remonstrated saying she had kept her side of the bargain (page 25). She told him to get out of the car. She started the car and tried to drive away. He tussled with the steering wheel, the handbrake and the gear lever. The car came to a halt against what turned out to be a tree branch. She got out of the car (taking the car keys), grabbed her daughter and started running away towards the highway. She tripped and the accused caught up with her. He pulled her up grabbing her by the hair. She said she told him he was hurting her. He replied, “That’s your fault for wearing something so stupid” (page 27). In cross-examination she explained that he was grabbing her by a hairclip (see page 60).
The accused then guided her back towards the car. She still had her daughter in her arms. When they got to the driver’s side of the car she tried to escape a second time. This time she hit a barbed wire fence. She turned and ran on but slipped and fell again. At that point the accused was standing over her with what looked like a stick or stump in his raised hand. She thought he was about to hit her. She covered her face screaming “Don’t kill me”. Her daughter screamed “Don’t kill mummy”. The accused did not hit her. He told her to get up and go back to the car. When they got there he told her to put her daughter in the car which she did. He then said he wanted her to go into the bush, but she refused. She said that she wanted to stay by the car. The two of them then went to the back of the car. The accused tried to kiss her. She turned her head away. He grabbed her head and forced her to kiss him on the lips (page 29). He was fondling her. In examination-in-chief she was not asked to explain what she meant by that. The accused then put his hand down the front of her track pants and touched her briefly just above her pubic hair. He then started fondling her breasts for a few seconds (page 30). He then pulled her lower garments down and off, putting them by the wheel of the car. He told her to get up on the boot of the car. Just before that he asked her to feel his penis. He was wearing parachute type pants and she put her hand on his penis. She described his penis as being “carved out in a way”. Photographs taken the next day, of his penis, explained what she meant. Her evidence on this topic is esoteric knowledge of his anatomy. Cross-examination of Ms Pittaway on this topic suggests that the esoteric knowledge is conceded (XN page 30, XXN page 64). Ms Pittaway described the penis as partially erect (page 31). The accused then told her to get on to what she described as the bonnet of the car but from other evidence it is clear that she meant the boot. She used the word “bonnet” several times to describe what in context clearly means the boot (see page 63, photo 5 of Exhibit P4). I say “clearly” because when asked to point to the car in the photographs she indicated the boot. She says she was told to open her legs. She said she did that. The accused then held her with one hand and tried “to put his penis in”. She said that first go wasn’t very good, but the second time his penis went into her vagina about an inch. At the time his penis was partly erect. That lasted for 3 or 4 seconds. He then “sort of gave up and told me to turn over” (page 32). She said she did not want to have sex with the accused nor to kiss him.
She turned over as the accused asked her to do. Ms Pittaway said that to do this she had to put her feet on the ground (page 32). She said she then felt him trying to penetrate her from the back with his penis. It felt soft. She said that she felt the penis touching “mainly my bottom”. She said the penis did not penetrate at all. She said she was told to put her clothes back on. She says she got her knickers on and picked up her pants. While he was putting his pants back on she decided that she would try to get away in the car, so got into the driver’s seat and reversed the car. Nevertheless he managed to get into the passenger’s side (page 33). Her daughter was still in the back of the car screaming and crying. Again he tussled with the handbrake and the gears. She said she got to the main bitumen road while fighting with him, but when she got there she said that “he must have got sick of fighting with me and he let out a big punch and hit me on the side of the face”. She felt blood running down her mouth. She said they hit a bush facing the highway. She says at that point the accused had his arm up above her neck and said “I’ve got a knife”. She said to calm him down “You won’t want to do that… you’ll go to gaol”. Her daughter was crying out “Don’t kill mummy”. Ms Pittaway said she did not see a knife but she had seen the accused bend over and get something off the floor or in between his legs. She said he then put his head on the glove box and said that he didn’t want to kill her and he didn’t want to rape her or anything like that. She says that she mentioned his name as “Maitland” whereupon he said “My name is not fucking Maitland, it’s Nathan” (page 35). She said that he had used the word Maitland at some stage. She said that to calm him down she would take him to where she could get him some money and he wanted her car.
Although the flow of the evidence would suggest that the punch and the threat of using a knife happened once Ms Pittaway had driven on to the bitumen road, however later evidence (see page 36) suggested it must have happened before they reached the highway because she said that when they reached the highway and she indicated going in the direction of Ceduna, the accused said he wanted to go Port Augusta and managed to stop the car with the handbrake.
When the car stopped she managed to get the house key off the key ring leaving the car key, grabbed Becky and run away. He very quickly got into the driver’s seat. She was afraid she wouldn’t manage to get her daughter out before he drove off. She screamed to him “let me get Becky”. She says that she just managed to get her out of the car before he took off. The dog got out of the car as well. She said she had not realised that the dog was in the car until they were on the dirt track and she had attempted to escape driving the car. When they hit what she thought was a branch, the dog jumped out of the car. On the occasion that the accused had raised a stick or stump above her, the dog had attacked the accused, trying to bite him. The accused had attempted to throw the stick or stump at the dog.
After she got out of the car on the highway she noticed the accused headed off in the direction of Port Augusta.
She said that she got to what she now knows as the Kaehne’s house at about midnight. While she was walking along she had heard a car coming and hid from it in a ditch. She said it sounded like her car. She said she had been walking for about 15 minutes when she saw the house (page 39). She said she was very upset and crying. Mrs Kaehne let her into the house. She asked Mrs Kaehne to ring her mother so that something could be done about her son who was still at home alone. Ms Kaehne did that and then she rang the police. The police arrived 10 to 15 minutes later. She said she told the police everything (page 40). The police took her back to where she thought the incident had happened. This was about 5 to 6 kilometres from Ceduna. She was then taken to the police station and then to the hospital. She sustained a black eye which was swollen, a bruise on her left shoulder, scratches and cut to her legs, feet and arms and aches and pains (page 41). She said the next day she went with the police and found the spot where the incident took place. She found her earring there. She hadn’t realised she had lost it (page 42). The earring became exhibit P1. Exhibit P2 was bundle of 46 photographs. Ms Pittaway identified parts of her house in the first 10 photographs. Exhibit P3 was a bundle of 14 photographs. In those photos she identified herself and injuries she had sustained. She said that the accused had pulled on it and the clip had sort of dug into her skull (page 47). The hairclip had not become entirely dislodged. Exhibit P4 is a bundle of 8 photographs in which Ms Pittaway identified her car. Exhibit P5 was a single photograph of Ms Pittaway taken some three days after the incident (page 48). Exhibit P6 is a street plan of Ceduna on which Ms Pittaway identified where her house was and the course she took when driving out of Ceduna. So far I have summarized her examination, interpolating occasionally evidence from her cross-examination.
In cross-examination, under careful questioning by Mr Coates, Ms Pittaway conceded that she was uncertain about several matters. They were as follows:
1)She was not sure whether the accused’s pants were up or down when he made her touch his penis (pages 67 and 69). It was put to her that she had told the police his pants were down (page 68). She did not distinctly admit having said that but in an excerpt from her statement, which was admitted into evidence later in the trial she said she had said that.
2)She was not sure whether she was actually sitting on the boot of the car when the accused penetrated her vagina. In examination in chief she had said she was sitting on the boot (page 31 – although she there used the word “bonnet”). In cross examination (page 70) she said that she was sitting on the edge of the boot with her buttocks partly on and partly off it. She agreed that it wouldn’t have been possible for the accused to penetrate her if she was actually sitting on the boot (page 75). She thought he might have asked her to come down from the boot. She agreed that she had told the police it had happened while sitting on the boot (page 76). She agreed that she was not sure of the order of things but she knew that he had penetrated her (eg page 75). She said that several times it was put to her that she was hysterical at the time. She agreed. She said this “I was hysterical, I was emotional, upset, I could hear my daughter screaming, but I know what I felt and I know how my body felt when I felt the jab, the pain, the penetration when it entered. I may not remember the order” (see page 76).
3)She is uncertain about how the accused got her legs apart when she was on the edge of the boot. She said variously that he had spread her legs using his legs and that he had done so using his arms. She was not sure (see page 70).
The next witness was Mrs Suzanne Kaehne. Mrs Kaehne lived with her husband Colin three or four kilometres from the centre of Ceduna. She had gone to bed about 10 pm. She was woken by scuffling out the front of her house. It was about 11.30 pm. She heard a woman say “We’re safe now bubby”. When she opened the door she saw Ms Pittaway standing there frightened, holding a child and with a dog. She invited her inside. She said she had been raped (page 88). She saw Ms Pittaway had swelling to her left cheek with dried blood around her mouth. She said it had been done by a dark man or an aboriginal man. She said that Ms Pittaway was speaking in an excited manner and she couldn’t understand some of what she said. She was speaking to her for five or ten minutes before the police arrived. She had rung them herself. She said that she had also rung Ms Pittaway’s mother because her little boy was home on his own asleep (page 90).
In cross-examination it was put to Mrs Kaehne that she had said to the police that Ms Pittaway had said “He tried to rape me”. She did not distinctly admit what was put to her but said that Ms Pittaway had said both “He tried to rape me” and “I have been raped”.
Mr Colin Kaehne gave evidence to a very similar effect.
Senior Constable Paul Garwood from the Ceduna Police gave evidence. He said that at about 11.50 pm he received a call and went to what turned out to be the Kaehne’s house. He described it as a lone house on the Eyre Highway about four or five kilometres from Ceduna. When admitted to the Kaehne’s house he saw Ms Pittaway whom he recognised. He said she appeared to have been crying and he noticed a swollen left cheek. He said she spoke to him quite calmly. He did not give evidence of any conversation with her. He was accompanied by Constable Matthew Walton.
Shortly after they had spoken to Ms Pittaway, the two officers took her with them to try to find the scene where the incidents happened. He says they drove 1.9 kilometres from the Kaehne’s house and arrived at a dirt track on the northern side of the Eyre Highway. He estimated that the location they ended up at was some 100 to 200 metres from the highway. After going to the location police took Ms Pittaway back to the police station and handed her to the care of a female police officer, Constable Gibson. The police went to Ms Pittaway’s house and observed the front of it. Senior Constable Garwood saw lights on and through what he described as “open curtains”, he could see a running machine at the front of the house (page 98).
In cross-examination (page 98) Garwood agreed that earlier in the evening he had received information of some fighting that occurred between some aboriginal people. He agreed that the name of the accused had been mentioned in connection with that fighting.
Constable Matthew Walton was the next witness. He said that he had gone to the Kaehne’s house with Senior Constable Garwood. He had not known Ms Pittaway before that night. He said she appeared visibly upset like she had been crying but she was not crying at the time. He did not recall any injuries. He recorded the details of Ms Pittaway’s vehicle. He says they were at the Kaehne’s house for 10 minutes or so and after that Ms Pittaway and her daughter came with the police in the police car to go to look for the scene of the incidents. He was not invited to give any details of the scene. He says that after they had handed Ms Pittaway to the care of Constable Lyn Gibson, he went to 18 Tank Road with Senior Constable Garwood to see if they could locate Ms Pittaway’s car and the alleged offender. There is no evidence of noticing anything there. They returned to the police station and then went to Ms Pittaway’s house where Constable Walton commenced scene guard duties. He stayed there until around 9.00 in the morning.
In cross-examination (page 102) Constable Walton was asked questions about aboriginal camp sites. The camp known as Town Camp is an area of land that had been designated recently, in the last couple of years, which was on Good Road. He said that five kilometres out of Ceduna there is another camp which is a lot number comprising an area of scrub with a couple of old tanks on it. He said that is known as either 18 Tank Road or 18 Tank. He said that area covered a diagonal from Eyre Peninsular on the eastern side of Ceduna and meets up with the Eyre Highway on the northern side. He said it basically ran between one part of Eyre Highway and another part of Eyre Highway where it by-passes Ceduna. It is located north-east of Ceduna.
Detective Senior Constable Trevor Puckridge gave evidence. He said that he was recalled from his home to go to the police station. He then left the police station and met up with Senior Constable Garwood near the area where police were looking for an earring thought to have been lost by Ms Pittaway during the course of the incident. They were not able to find the earring. They received information some time after 4 am that Constable Chamberland at Yalata had located Ms Pittaway’s vehicle just west of Nundroo. That was some 150 kilometres west of Ceduna on the Eyre Highway. A Police officer by the name of Sonia Bawden was recalled to duty and she drove Puckridge to locate the vehicle. It took about an hour and a half to get from Ceduna to the car. Ms Pittaway’s car was located about 12 kilometres west of Nundroo on the southern side of the Eyre Highway facing west. They located some burnt papers under the vehicle and there was a beer carton. There was can of beer crushed at the rear of the car with a damp area near it. Photographs exhibit P4 were taken of the car at the location. Police searched up and down the highway near the area where the car was found trying to find the suspect. After a while Constable Bawden pointed out a figure some distance east of the car. They approached the figure at about 8.00 am and found it was the accused. They arrested the accused on suspicion of committing the offences on Ms Pittaway. They took photographs of him. These comprised exhibit P7, a bundle of 3 photographs. The accused said he was thirsty and wanted a smoke. He gave his name as Neil Nelson. He was questioned about where he had been the night before. He mentioned that he had been at Nundroo the night before with other people. Puckridge told him the police would check that out with other people. The accused was asked whether he was Maitland Nelson and he maintained that his name was Neil Nelson. After getting a drink from Nundroo the police took the accused to the Ceduna Police Station where he was interviewed by Puckridge. That interview was videoed. That videotape is exhibit P8 and a transcript of it is exhibit P9. The interview lasted from 11.05am on Friday 19 November until 11.35am. No interpreter was used. There was present during the interview Mr Ken Smith, an Aboriginal Legal Rights field officer.
During the interview the accused said that the woman to whose home he went let him in and gave him a cup of tea (see Q & A 21 of the transcript exhibit P9). When the allegation was put to him that the woman tried to push him out of the door of her house and that he was told to go away, he answered “Liar” (see A48).
It was put to him that he had taken the woman and her child from the house (Q32). He replied “I asked her for a ride and she took me and I asked her what was the time was then it was bush and I asked her if she was still all right and I told her all the words “I’m not here to kill you or anything like that, not a murder” that’s what I told her you know”.
It was put to him that the woman’s dog started “having a go” at his legs and that he ended up throwing the stump at the dog (see Q40).
He replied “There was no dog there, no dog was there”.
In Q42 he was asked “Can you remember raising the stump above her head while she was laying on the ground?”
He answered “She wasn’t laying on the ground she was still sitting in the car, she made the whole story up, she was in the car, not laying on the ground or something….sitting and shouting in the car, she was in on the driver’s side”.
He was asked about the allegations of his putting his hand down her knickers (Q43). He answered “She tell a lie about that one there, I never put my hands down her pants, I only asked her for a ride that’s all… (inaudible)…I just wanted to get away from Ceduna…(inaudible) (see A45).
In Q46 he was asked “Alright, it’s alleged that you then pulled her tracksuit pants and underpants down while you held her with the other hand, and you pulled her tracksuit pants down and grabbed her right hand and put it against your penis… and you pushed her legs apart and you eventually put your penis into her vagina”.
He answered “She’s telling a lie about that one there, I never put my penis in there…I was …(inaudible)…the car that’s all” (see A49).
In Q50 he was asked “Yeah, it’s alleged that you turned her around and then you tried to, you put your penis between her legs but it didn’t enter her vagina or backside, what can you tell me about that?”
He replied “na she got …(inaudible)… I never done that.”
He denied the allegation that he punched her (Q & A 53).
He was asked about the car.
In Q58 he was asked “Did you take her car and drive it from this bush outside of Ceduna where she is saying this stuff happened to where we found the car the other side of Nundroo?”
He replied “Yes.”
In Q66 he was asked “Back at the car, when you were back in the car, I’m going back to before you went to Nundroo in the car, back when you were in the bush the Port August side of Ceduna, she said that you told her that you’ve got a knife and that you were going to stab her in the back, what can you tell me about that?”
He replied “I just told her just get out of the car and took off that’s all, I had no knife…(inaudible)…knife…no knife.”
Q67 “Did you tell her that you had a knife?”
Answer “No.”
At the end of the interview he accused’s clothing was seized and sent to the Forensic Science Centre. The clothing included Mr Nelson’s shirt (exhibit P10), pants and jockettes (exhibit P11). A buccal swab was taken from him. Detective Puckridge testified that Ms Pittway’s clothing had also been sent to the Forensic Science Centre. A buccal swab from her was also sent.
After the interview with the accused Detective Puckridge went with crime scene examiner, Tony Ackland and Lyn Gibson to an area at 18 Tank Road near where Garwood had earlier pointed out a possible scene of the incident. Puckridge described the location as approximately half a kilometre from the Eyre Highway. He there saw vehicle tracks, tracks made by an animal (most likely a dog), tracks by a child and two adult sized foot tracks, one barefoot and the other having some type of shoe marks. Photographs were taken at the scene by Senior Constable Ackland. The earring was found by Ms Pittaway. Puckridge’s attention was drawn to the bundle of 46 photographs comprising exhibit P2. He identified photographs 18 to 27 as being photographs of the accused taken in the presence of Dr Max Lartey. Photographs 28 to 34 were photographs of Ms Pittaway’s car and photographs 35 to 46 were taken on 18 Tank Road. On Thursday 25 November, Detective Puckridge took a single photograph of Ms Pittaway which comprises exhibit P5.
In cross-examination (page 112) Detective Puckridge was asked questions about the location where the earring was located. He agreed it was to the east of Ceduna just off the Eyre Highway. He said that the dirt track was part of the land known as 18 Tank Road, although it was also just called Tank Road. He said that the area used by aboriginal people to camp was at least two kilometres west of the location where the earring was found. Puckridge agreed that although the accused had given the name “Neil” when apprehended, he identified himself as “Maitland” at the video interview. Puckridge could not recall smelling alcohol on the accused when he located him but could smell smoke (page 114). Detective Puckridge was unable to estimate the height of the boot of Ms Pittaway’s car. That topic was left for agreement between the parties. In the end no agreement was put to me but I do not find it necessary to make a finding about that.
Swabs were taken from the gear stick and handbrake of Ms Pittaway’s car.
The final two witnesses for the Crown were medical witnesses. The first was Dr Betsy Williams. She is a medical practitioner employed by the Royal Doctors Workforce Agency which is a government agency providing locum services to doctors throughout South Australia. She works in a variety of small towns including Ceduna. She was in Ceduna in November last year. She saw Ms Pittaway at the Ceduna Hospital on Friday 19 November at about 12.30pm. She described Ms Pittaway as outwardly quite calm, obviously fairly upset, but able to give a good history (page 121). She recorded an exceptionally high blood pressure level of 220 over 110. She observed that Ms Pittaway had a large bruise on her left cheek. It looked relatively fresh. Scratches on her wrists also looked fresh because they were oozing and showed no sign of healing. Ms Pittaway had reported to her that her legs were very sore from running. Dr Williams conducted a genital examination but found no abnormalities. She collected clothing and took samples including a buccal swab from her mouth. Swabs were also taken from the perineum and the vagina. Dr Williams expressed the opinion that, on the hypothetical assumption that a female patient claimed an assault where there was partial or minimal penetration of the vagina by a semi erect or partly flaccid penis, she would think it unlikely to find injuries in that area. She said that if the penetrating object was not hard or sharp it would be unlikely to cause injury. In cross-examination (page 123) she said that the high blood pressure reading might be expected of someone who had experienced a trauma, grief or upset.
The final witness was Dr Andrew Donnelly who works for the Forensic Science Centre in Adelaide. He said that the Forensic Science Centre had been provided with items of clothing said to have come from the accused and Ms Pittaway. There were also buccal swabs from each. Dealing with the results of the analysis of items from the sexual assault kit, he said that no sperm was detected on either the vaginal or labial swabs taken from Ms Pittaway. There were no signs of sperm in the underpants taken from Ms Pittaway. There were no results of interest found in the other clothing taken from Ms Pittaway, namely her tracksuit pants, her tee-shirt and a crop top she was wearing on top. From a polo shirt belonging to Mr Nelson, one stain returning a weakly positive blood like stain was subjected to DNA analysis. The result was a mixed and incomplete DNA profile to which at least three people could have contributed. The accused and Ms Pittaway could not be excluded from being two of those contributors but no statistical weighting could be given to that finding. The polo shirt was exhibit P10. The accused’s underpants (exhibit P11) were examined. From tape lifts a DNA profile was obtained. It was mixed and at least two people could have contributed to it. Neither the accused nor Ms Pittaway could be excluded. It was unremarkable that the accused’s own DNA might be found. Dr Donnelly said of this result that it could be given a statistical weighting. He said that the particular mixed profile is approximately 17.6 million times more likely to match the combined DNA profiles of the accused and Ms Pittaway if they were both contributors to the sample, rather than the accused and another unknown female unrelated to Ms Pittaway. Another tape lift was taken which gave a positive reaction to a presumptive test to blood and also semen. This analysis was inconclusive.
There were samples said to have been taken from Ms Pittaway’s car and from the VB beer can found near it. The accused’s DNA profile was found on the can, the gear lever and the steering wheel. In the circumstances that was unremarkable.
Under cross-examination Dr Donnelly conceded that it was possible that Ms Pittaway’s contribution to the mixed DNA sample found in Mr Nelson’s underwear could have come from her hand being inside his underwear for a few seconds (page 131).
The Crown case concluded with the tendering of the declaration of Dr Maxwell Lartey dated 29 November 2004 which was marked exhibit P12. That declaration merely recited the samples taken from the accused and it referred to an examination the doctor conducted of the penis of the accused. His examination of the penis and the photograph taken of it confirm the esoteric knowledge that Ms Pittaway gave evidence of.
Submission of No Case to Answer
It was submitted by Mr Coates for the accused that there was no case to answer in respect of count one, the charge of criminal trespass, and count four, the charge of attempted rape. No submission was made in relation to count 3, the charge of rape. Put briefly the submission made in respect of the former was that the evidence was that the accused appeared fearful and intoxicated when Ms Pittaway first noticed him in her house and that he had asked for her help to be taken out bush on fearing that people were trying to kill him. I was taken to the authority of The Queen v Pascoe (2004) 90 SASR 509 on the topic of the elements of criminal trespass. It was put specifically that the prosecution had to negate the possibility that the accused believed he had consent to enter on to the property, or in the alternative, that he had not turned his mind to it. In support of that contention it was put that the accused had entered the house grossly intoxicated and Ms Pittaway had agreed to give him a lift out bush. It was put that it could not be excluded that he had not turned his mind to the question of consent being given for his entering the property. In respect of the test to be applied at this stage of the trial, counsel quoted Tovehead Pty Ltd v Freeman (2003) 175 FLR 311 (see Lunn Volume 1 paragraph 360.1). The effect is that “Where there are two possibilities on the evidence, one of which must result in an acquittal and it is not possible to determine which of the two is more probable, there is no case to answer”. The prosecution submitted that bearing in mind the whole of the evidence given by the complainant about what went on in the house, the prosecution had discharged the onus of proving a case to answer. Immediately upon seeing the accused Ms Pittaway had tried to expel him from the house. He forced his way back in and proceeded to tell her that so long as she did what he said no harm would come to her. In my view, there is sufficient evidence to make out a case to answer on this count.
Application was also made in respect of count 4, the charge of attempted rape. Several pieces of evidence were referred to. The evidence suggested only that the accused had placed either his finger or penis in the middle of one buttock. There was no move to spread Ms Pittaway’s buttocks . Nothing had been put in the vicinity of either her anus or vagina. It was submitted that there was insufficient evidence to make out a case to answer. Mr Crowe for the prosecution, submitted that the inferences which may be drawn from the evidence were such that it was legally possible to convict, hence there was a case to answer. I agreed and found there was a case to answer on this count as well.
I adjourned on the morning of Friday 11 November to enable Mr Coates to take instructions on whether he proposed to call evidence. When the matter resumed on Monday 14 November Mr Coates indicated that he was not going to call any evidence. Counsel then addressed.
Addresses of Counsel
Count 1 Criminal Trespass
For the prosecution, Mr Crowe submitted in relation to count 1, the offence of criminal trespass in a place of residence contrary to section 170A of the Criminal Law Consolidation Act, that the Crown has to prove first that the accused trespassed on Ms Pittaway’s residence. That is proved by his having entered the premises without her consent. There was no dispute about his entry into the house and no dispute about her attempt to force him out after telling him he should not be there. In the case of the offence against section 170A, as distinct from the offence of serious criminal trespass pursuant to section 170, it is not required, nor was it alleged, that the accused entered with the intent to commit an offence. It is not disputed that Ms Pittaway was lawfully in her house. The final element, it was submitted, may be proved in one of two ways – either the accused knew of Ms Pittaway’s presence in the house or he was reckless about whether anyone was there. It was submitted that three pieces of evidence were sufficient to make her presence, or the likelihood of someone’s presence, in the house obvious. They were
1)The hall and lounge lights were on;
2)There were slats of the vertical blind in the lounge missing such that she herself (and possibly her daughter as well) were visible in the lounge which was the front room of the house and close to the road. It was pointed out that Senior Constable Garwood was able to see her walking machine in the lounge when he looked from the front of the house early the next morning.
3)There was loud music coming from the lounge.
It is submitted that the accused was at the very least reckless as to whether someone was in the house.
It is convenient here to put Mr Coates’ submission to the contrary. He addressed only the critical issue of the accused’s state of mind, but at the earlier stage of consent. He submitted that there was evidence suggesting that the accused was grossly intoxicated when he was discovered in the hallway. Further, he submitted that the evidence of the fight outside the house and the accused saying he was fleeing in fear of his life, combine to suggest that the accused was in one of two exculpatory states of mind – either he believed he had consent to enter the house or, alternatively, he had not turned his mind to issue of consent. Mr Coates submitted that the judgment of the Court of Criminal Appeal in R v Pascoe (2004) 90 SASR 505 (more particularly the judgment of Justice Perry at page 509 with which the other members of the court agreed) made it clear that the prosecution has to negate the possibility that an accused believed he had the householder’s consent or that he had not given any thought to the question of her consent when he entered the premises.
The effect of this submission is that to make out the offence of criminal trespass the prosecution must prove two mental elements, namely:
1)that the accused knew he had no consent to enter the property
and
2)that he knew that someone was present in the house or was recklessly indifferent to someone’s presence.
I did not take Mr Coates to be arguing the latter. He elaborated on the assistance to be gained about the elements of this offence from the CCA judgment in R v Pascoe (supra). I sought and obtained clarification of the point in time at which the prosecution alleges the trespass took place. Mr Crowe made it clear that the relevant time is when the accused first entered the front door (page 150).
Count 3 – Rape
Mr Crowe submitted the real issue for the court was whether there has been proof of intercourse. He submitted that if that element is proved then there should be no difficulty in the court finding proved the other two elements, namely, the absence of consent by Ms Pittaway and the accused’s knowledge of, or reckless indifference to, that absence of consent. I need not dwell on the evidence to which he drew my attention in support of those propositions. In respect of the evidence of penetration he conceded the uncertainty on Ms Pittaway’s part about whether she was on the boot at the moment of penetration (page 142) and how it was her legs were parted. He emphasised the certainty with which she said the accused penetrated her while he was facing her. I have already referred to the evidence on this topic.
He submitted that while the medical evidence of the genital examination did not positively support the Crown’s case it was not inconsistent with it. Dr Williams had said that if the penetration occurred with a semi erect penis it would not be likely that any genital injury was caused. He referred to the evidence of other bodily injuries which did not appear to be in contention.
He then referred to the forensic evidence of Dr Donnelly. While arguing that the evidence of contributions by Ms Pittaway to a DNA sample on the accused’s underpants supported the Crown case (by way of this penis penetrating her vagina and thus carrying her DNA to his underpants) he conceded that the evidence might also be explained by Ms Pittaway’s hand touching his penis (and underpants) thus making it consistent with the defence case.
Again it is convenient for me to deal at this stage with the address of Mr Coates for the accused. He emphasised the inconsistencies in Ms Pittaway’s evidence about where exactly she was placed at the point of penetration, ie whether she was sitting on the boot, half on and half off or standing on the ground. He then referred to what he described as the “lesser discrepancies” about whether her lower garments, and his, were up or down at various stages. He referred to her evidence about things being in a blur after she had arrived at the Kaehne’s. He spoke of the effect of the whole experience on her reliability.
I turn to the addresses on Count 4, the attempted rape.
Mr Crowe referred to the need for the prosecution to prove an intention to rape and to prove that the accused had embarked upon the commission of that offence. He referred to the evidence bearing on count 3, the completed offence of rape. Having penetrated Ms Pittaway only about an inch, the accused told her to turn over. The inference from that is that the accused, having failed to satisfactorily achieve intercourse, was going to try another way. Ms Pittaway’s evidence of what she felt him do, namely put either or both of his finger or penis against one buttock, is evidence both of his obvious intention and of his having embarked on the completed offence of rape.
Mr Crowe referred to the evidence of Ms Pittaway’s complaints, distress and injuries as witnessed by the Kaehne’s. He referred to this evidence as being evidence of consistency of conduct rather than of corroboration.
He referred to other aspects of the evidence to support the Crown case generally. He pointed to the “cup of tea” claim by the accused in his record of interview which was not put to Ms Pittaway at trial. The same observation was made in relation to the denial in the record of interview of the punch. He referred to the claims of intoxication put on behalf of the accused and observed that the 150 kilometre drive cast considerable doubt on at least intoxication materially assisting any defence.
For the defence on count 4, Mr Coates submitted that even if Ms Pittaway’s evidence of this incident were accepted (and it was denied), it would not necessarily be an intent to, or an attempt to, commit penetrative sex. It might equally have been an indecent assault. Indecent assault is an alternative verdict to rape and attempted rape pursuant to section 75 of the Criminal Law Consolidation Act, and attempted rape is an alternative verdict to rape pursuant to sections 270A and 290. Mr Coates elaborated submissions on the evidence he had made at the “no case” stage
Speaking more generally of the defence case, Mr Coates specifically raised the question of intoxication affecting the consciousness of the accused pursuant to section 269 of the Criminal Law Consolidation Act. He submitted that the medical evidence and the forensic evidence did not positively support the prosecution case.
I left to the end of each address by counsel questions I wanted to raise. I have incorporated submissions made in response to those questions in my account of the addresses.
Self directions on various topics
Onus of proof
I have already referred to the onus being on the prosecution to prove each element of each offence beyond reasonable doubt.
Elements of Offences
Count 1 - Criminal Trespass – section 170A of the Criminal Law Consolidation Act
The prosecution must prove beyond reasonable doubt that:
1)The accused entered the place of residence
2)he entered without the consent of the lawful occupier
3)he entered either knowing he did not have the consent of the occupier or he did so recklessly
4)he entered the house either knowing of the presence there of the occupier or being reckless as to whether anyone was inside (adapting the direction for serious criminal trespass in R v Pascoe (2004) 90 SASR 505 at 509).
Count 3 – Rape – section 48 of the Criminal Law Consolidation Act
The prosecution must prove beyond reasonable doubt:
1)that intercourse took place consisting, in this case, of penetration by the penis of the vagina beyond the out lips
2)that the intercourse took place without the consent of the complainant
3)that the accused knew that the complainant was not consenting or was recklessly indifferent as to her consent.
Count 4 – Attempted Rape – section 48 and section 270A of the Criminal Law Consolidation Act
The mental element for attempted rape is the same as for rape (see paragraphs 2) and 3) above). To prove an attempt, the prosecution must prove that the accused has gone beyond the preparation for the completed crime. It must be proved that he has actually embarked upon the commission of the crime (R v Collingridge (1976) 16 SASR 117).
Alternative offence of indecent assault – section 56 of the Criminal Law Consolidation Act
There must be proved
1)a deliberate touching of the complainant by the accused
2)the touching must be in circumstances amounting to indecency
3)the accused must either know that the complainant does not consent or he is recklessly indifferent as to her consent.
Intoxication
The offences charged are alleged to have occurred on the 18th November 2004. Legislation dealing with intoxication affecting criminal responsibility has been amended. Part 8 of the Criminal Law Consolidation Act dealing with intoxication and comprising sections 267A to 269 was amended to take effect from 25th November 2004. I conclude that I must apply, to this case, the legislation as it existed on 18 November. I reproduce section 268 as it existed at that time.
Section 268
(1) If the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by intoxication to the point of criminal irresponsibility at the time of the alleged offence, the defendant is nevertheless to be convicted of the offence if it is established that the defendant -
(a)formed an intention to commit the offence before becoming intoxicated; and
(b)consumed intoxicants in order to strengthen his or her resolve to commit the offence.
(2)A defendants consciousness is taken to have been impaired to the point of criminal irresponsibility at the time of an alleged offence if, because of impairment of consciousness, a subjective element of the alleged offence cannot be established against the defendant.
I say at the outset that I do not see that subsection (1) of section 268 applies in this case. There is no evidence whatsoever to suggest that the accused formed an intention to commit this offence before becoming intoxicated or that he consumed intoxicants in order to strengthen his resolve to commit the offences.
Lies
I have not been asked by the prosecutor to regard any lies the accused might have told during his record of interview as affecting anything other than the reliability of other parts of his interview.
The accused not giving evidence
I draw no inference adverse to the accused by reason of his having given no evidence. I see no occasion, such as that rare one contemplated in Azzopardi v The Queen (2001) 205 CLR 50 to take into account the accused’s right not to give evidence.
Accused’s out of court statement
Following the decision of the High Court in Mule v R [2005] HCA 49, I understand that I need not give the same weight to exculpatory parts of the accused’s record of interview as I give to the inculpatory parts (see para [21]).
Evaluation of Evidence and findings
Count 1
There is no dispute that the accused entered Ms Pittaway’s house without her consent. She knew nothing of his presence in her hallway until she found him there. She immediately told him he should not be there and she tried to push him out the front door. He pushed his way back in. I need only consider his culpability at the point when he entered the house given the indication to that effect by the prosecutor (page 150). The matters in dispute concern the accused’s state of mind. As I have already mentioned I think there are two states of mind that have to be proved. I must be satisfied beyond reasonable doubt that the accused knew someone was inside the house or at least he was recklessly indifferent as to whether anyone was inside. Given the evidence of the lights being on, the music playing and there being gaps in the blinds in the room where Ms Pittaway and her daughter were, I find proved he did know someone was inside. If I am wrong about that I would certainly find that he was recklessly indifferent as to whether anyone was inside. I find that mental element proved.
I am less certain about the other state of mind which must be proved. It must be proved that the accused either realised he had entered the house without the occupiers consent, or that he had given some thought to the question of consent. There seems no doubt that the accused entered the house having just been involved in some way in the fighting outside. He had a bandage on his hand. He claimed to be fleeing people who were out to kill him. He was intoxicated to a degree. Without relying on intoxication as a defence pursuant to section 268 of the Criminal Law Consolidation Act, I think it reasonably possible that he was genuinely fleeing some threat of harm, so that he either assumed he would be able to call upon the householder to give him some temporary protection or he may have been sufficiently intoxicated and fearful that he gave no thought to the question of her consent to enter the house. Events which followed suggest he may have entered the house for an entirely criminal purpose, but I cannot dismiss the possibility that his later purpose was not present when he entered the house. I cannot dismiss as a reasonable possibility at least, that he had entered the house without having turned his mind the occupier’s consent. Accordingly I acquit the accused of count one. I should add that I am satisfied beyond reasonable doubt that the accused’s assertions to the police that Ms Pittaway let him into the house and gave him a cup of tea are false.
Count 3
I deal now with the charge of rape. I am satisfied that the accused took Ms Pittaway from her house against her will. She may, for her own safety and that of her daughter, have given the impression to the accused that she was willing to drive him out Ceduna, but she was clearly only doing so under extreme pressure. She followed his clear demands to take him in her car and when they were on the road she followed his clear directions about where to go. She was directed first off the Eyre Highway and then off a side road on to what is described as a two-wheeled track. She was told to stop the car, turn off the lights and get out. There was no need to drive into the bush if all he wanted to do was steal her car. There was no need to turn off the lights if that was all he intended to do. The location where they stopped was about two kilometres from the nearest aboriginal camp. I find that the accused’s actions thus far make it clear that he was physically and mentally alert. Later events confirm this view. The accused was able to run after Ms Pittaway and subdue her several times. He later drove away in her car stopping some 150 kilometres away. I find that while the accused was probably intoxicated by liquor, his consciousness was not affected so as to leave any doubt that he was capable of forming the criminal intentions necessary for the sexual offences with which he is charged. He had a sexual purpose at least when the car stopped first. It may have been earlier.
I have carefully considered the evidence of Ms Pittaway and the manner in which she gave it. I am left in no doubt that she was doing her best to tell the truth about what happened to her. She was confused and uncertain about some details of what occurred. She said as much herself. I accept her evidence that the accused took her to the boot of the car and forcibly kissed her. I accept that he touched her inside her track pants just above her pubic hair. I accept that he put her hand on his penis. It was not put to her that these things did not happen. On the contrary the touching by her hand on his penis is cited as the explanation for why her DNA might be on his underpants. I find that not only was Ms Pittaway an honest witness but she was also accurate and reliable about the important parts of her evidence. I am satisfied beyond reasonable doubt that the accused penetrated her vagina with his penis. I find that so, albeit the penetration was slight, about an inch, and was for a short duration. I am satisfied he had intercourse with her. I am unable to be satisfied beyond reasonable doubt exactly how she was positioned at the time that occurred but I do not think it matters. I am satisfied beyond reasonable doubt that Ms Pittaway did not consent to intercourse or to any other sexual contact. I am also satisfied that the accused knew that she was not consenting. Her unsuccessful attempts to escape make that clear. I find each element of the offence of rape proved beyond reasonable doubt. I find the accused guilty of rape.
Count 4
I am satisfied that after raping Ms Pittaway in the circumstances just described the accused told her to turn over. She took up a position facing the back window of her car. I am satisfied the accused had a conscious sexual purpose in mind. I am satisfied that he deliberately touched her on the buttocks with his penis and a finger. While I am satisfied that he had a sexual purpose in mind I am left in some doubt whether he actually intended to penetrate her again. I think he probably did but I am not satisfied beyond reasonable doubt that that is so. Were I satisfied that he intended to rape her again, I would be satisfied that his actions were sufficiently proximate to the completed act to make out the offence of attempted rape. In those circumstances I would find that the actus reus of the offence of attempted rape had been committed, ie that he had actually embarked upon the commission of the crime. However as a consequence of my doubt about his intentions I find the accused not guilty of attempted rape. I am nevertheless satisfied beyond reasonable doubt that he deliberately touched her in the way I have described and that that touching was indecent. I am also satisfied that he knew that she was not consenting to that act. I find the accused guilty of indecent assault.
Summary of Findings
As to Count 1, Criminal Trespass, I find the accused Not Guilty.
As to Count 3, Rape, I find the accused Guilty.
As to Count 4, Attempted Rape, I find the accused Not Guilty by Guilty of Indecent Assault
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