R v Oludare - [2020] SADC 15

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v OLUDARE
[2020] SADC 15
Reasons for Decision of Her Honour Judge Davison
21 February 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
The accused, Mr Oludare, is charged with one count of rape contrary to s 48(1) of the Criminal Law Consolidation Act 1935 (SA). It is alleged that he had vaginal sexual intercourse with the mother of his child when she was not consenting. He admits in his evidence that an act a vaginal sexual intercourse occurred but maintains that he thought the complainant was consenting.
Verdict: Guilty.
Criminal Law Consolidation Act 1935 (SA) s 5, s 46, s 48; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) s 13A, s 34N, s 34L; R v P,S (2016) 261 A Crim R 329; Liberato v The Queen (1985) 159 CLR 507, referred to.

R v OLUDARE
[2020] SADC 15

The accused, Mr Oludare, is charged with one count of rape contrary to s 48(1) of the Criminal Law Consolidation Act 1935 (SA). It is alleged that he had vaginal sexual intercourse with the mother of his child when she was not consenting. He admits in his evidence that an act a vaginal sexual intercourse occurred but maintains that he thought the complainant was consenting.
Olanrewaju Segun Okuwa Oludare is charged with the following offence:
Statement of Offence
Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Olanrewaju Segun Okuwa Oludare on the 4^th day of June 2017 at Lockleys, engaged or continued to engage in sexual intercourse with [MM] by inserting his penis into her vagina, without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact that [MM] was not so consenting.
Overview
The accused and the complainant, MM met at a nightclub in June 2014. Thereafter, they continued to see each other and commenced a sexual relationship. In June 2016, the complainant fell pregnant to the accused. The accused was initially disinterested or perhaps even adverse to being a father and communication ceased between the accused and complainant for several months thereafter. It resumed in the latter stages of the pregnancy. It is alleged that the accused penile‑vaginally raped the complainant on 4 June 2017 when he attended at her house in Lockleys to visit their son. MM gave evidence in this trial. The prosecution relies on her evidence to prove this case beyond reasonable doubt. The accused denied any lack of consent from the complainant.
The accused pleaded not guilty. He elected for trial by Judge alone pursuant to s 7 of the Juries Act 1927 (SA). The trial proceeded before me without a jury.
Elements of the Offence
The offence of rape is comprised of three elements. Each must be proved beyond reasonable doubt by the prosecution.
The first element is that the accused had sexual intercourse with the complainant. ‘Sexual intercourse’ includes any activity consisting of or involving penetration of a person’s vagina by any part of the body of another person.[1]
[1] Criminal Law Consolidation Act 1935 (SA) s 5.
It is not disputed that the accused and complainant engaged in penile/vaginal sexual intercourse on the complainant’s bed on 4 June 2017.
The second element is that the accused had sexual intercourse with MM without her consent. A person gives consent if they agree freely and voluntarily to engage in the sexual activity.[2] Where the person agrees to sexual activity because of the application of force or an express or implied threat of the application of force, they cannot be taken to be freely and voluntarily agreeing to the sexual activity, and there is, therefore, no consent.[3] A lack of physical violence or physical injury during the sexual activity does not signify that the complainant consented. This element is in dispute. The complainant says she did not consent and was forced to have sexual intercourse. The accused says she was a willing participant in the act.[4]
[2] Ibid s 46(2).
[3] Ibid s 46(3)(a)(i).
[4] T270.
The final element is that the accused either knew that MM was not consenting, or, was recklessly indifferent to MM’s lack of consent. The accused is recklessly indifferent to the fact that another person does not consent to sexual intercourse if: (a) he is aware of the possibility that the complainant might not be consenting to the act but decides to proceed regardless of that possibility; or, (b) he is aware of the possibility that the complainant might not be consenting 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) he does not give any thought as to whether or not the complainant is consenting to the act before deciding to proceed. The accused maintained in his evidence that he thought the complainant was a consenting and willing participant in the act of sexual intercourse. On the prosecution case, the accused knew she was not consenting by her words and actions at the time of the act of sexual intercourse.
Pre-trial Matters
Oral applications were made by the prosecution for special arrangements pursuant to s 13A of the Evidence Act 1929 (SA) for the taking of the complainant’s evidence, without objection. Those arrangements were the court being closed, a screen obscuring the view of the accused, and having a court companion. I granted these applications. Accordingly, I warn myself that I must not draw any adverse inference against the accused, nor should I allow the fact that these arrangements were in place to influence the weight that I give to the witnesses’ evidence.
Defence counsel made an application pursuant to s 34L(1)(b) of the Evidence Act 1929 (SA) to question the complainant in cross‑examination on sexual activities with the accused before the alleged offence. I was satisfied that this line of questioning would not cause unnecessary distress, humiliation or embarrassment, and was of substantial probative value and in the interests of justice.[5] Therefore, I permitted this line of cross‑examination.
[5] Evidence Act 1929 (SA) s 34L(2).
General Legal Directions
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence charged.
The standard of proof is beyond reasonable doubt. The accused cannot be found guilty of the offence unless the evidence I accept satisfies me beyond reasonable doubt of his guilt. In these reasons, if I use the words proved, established, or satisfied in each case, I mean to an extent which excludes a reasonable doubt.
The accused is presumed by law to be innocent of the charges unless and until the evidence that I accept satisfies me that each element of the charge has been proven beyond reasonable doubt. If, however, the evidence fails to satisfy me beyond reasonable doubt on any of the elements of the offence, then he remains innocent and I must return a verdict of not guilty.
I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence given by the witness. I can reject or accept all or part of a witnesses’ evidence.
The accused has given evidence. He was not obliged to give evidence but chose to do so. His evidence must be considered along with the other evidence in the case. By giving evidence and presenting a case, he does not assume any burden of proof. That burden must always remain with the prosecution. Even if I reject any explanation that was given by the accused, that is not an end to this matter. I must be satisfied that each of the elements of the charge has been proven beyond reasonable doubt, notwithstanding the case presented by the defence before I can return a verdict of guilty.
I must bring an open and unprejudiced mind in this case. I must make my decision without sympathy, prejudice or fear and must not be influenced by public opinion.
The evidence of the complainant’s first complaint to her now deceased sister and the elaboration of complaint to her other sister, LM is relevant to show how the allegations first came to light and to demonstrate consistency of conduct on the part of MM. It is relevant in support of her credibility as to the fact of the alleged rape, and what she says occurred during the alleged incident. The evidence of MM’s complaint to LM does not demonstrate the truth of what MM said during the course of the complaint or in the elaboration of that complaint.
There was cross examination and argument to the effect that there was a motive for the complainant to make a false allegation. That was said to be the intention by the complainant to sever ties with the accused and ensure that he was no longer involved in the life of their son. I remind myself that any argument or evidence of a motive by a complainant to lie must be taken into account by me in assessing the evidence of the complainant. I must decide whether it causes me to doubt her evidence as to the charged offence. However, even if I reject the argument or the evidence this does not strengthen the prosecution case. If I conclude that there is no reason for the complainant to lie that cannot advance the prosecution case and to reason in that way is impermissible.[6] It is neutral.
[6] R v P, S (2016) 261 A Crim R 329.
The Evidence
The prosecution case depends almost entirely on the evidence of the complainant. The complainant, MM, has lived in Lockleys, South Australia for the past three years.[7] She has a daughter, Z, born on 2 April 2013.[8] She is no longer in a relationship with Z’s father.[9]
[7]    T20.
[8]    Ibid.
[9]    Ibid.
In June 2014, she met the accused at Zhivago night club.[10] At this time, she was living at her mother’s house and he was living near Flinders University.[11] In cross‑examination she agreed that the accused had told her that he was new to Australia and that she showed the accused around Adelaide in the following weeks.[12]
[10] T20-1.
[11] T21.
[12] T50.
They subsequently commenced a sexual relationship which continued on‑and‑off until 2016.[13] She said the ‘off’ periods lasted several months at a time and the relationship officially ended in May 2016 when she terminated it.[14] In cross‑examination she explained that they broke up after an argument which resulted in her saying, ‘I’m just done with it’ or ‘I’m done with you’.[15] She said it was her impression that the accused knew they had broken up at this point.[16] She agreed that she did not say the words ‘we have broken up’.[17]
[13] T21.
[14] T22.
[15] T59.
[16] Ibid.
[17] Ibid.
During the period between 2014 and 2016, the accused called her ‘Rita’ and she called him ‘Lanri’.[18] They never lived together during this period and saw each other a couple of days a week.[19] She predominantly stayed at his house, but he sometimes would stay at her place.[20] When they did stay over at each other’s houses they would sleep in the same room.[21]
[18] Ibid.
[19] Ibid.
[20] T50.
[21] T58.
She agreed in cross-examination that the accused or herself would initiate sexual intercourse.[22] She disagreed that she would say 'no, no, no' when the accused started being intimate with her but then when he stopped would urge him to start again.[23] She agreed that she argued with the accused about him climaxing before her.[24]
[22] T57.
[23] This suggestion had formed a basis for the application pursuant to s 34L of the Evidence Act 1935 (SA). However, it was not a matter about which the accused gave any evidence.
[24] Ibid.
In June 2016, the complainant discovered she was pregnant. The accused was the father.[25] The complainant said the accused was initially happy but the next day received a call from him where he listed the reasons that she should not have the baby.[26] She ultimately decided to have the baby. When she told him and the accused tried to convince her to have an abortion.[27] The accused said he did not want to have anything to do with the child and she said ‘he has been that way ever since I found out the news and even after I gave birth to him’.[28] She disagreed in cross‑examination that she became hostile towards the accused because he wanted to have a termination or at any point thereafter.[29] She disagreed that she resented the accused for being the father of her child.[30]
[25] T23.
[26] Ibid.
[27] Ibid.
[28] Ibid.
[29] T98.
[30] Ibid.
After learning of her pregnancy, the accused and complainant had little to do with each other. The accused called her on three occasions.[31]
[31] T23.
During her pregnancy, she moved out of her mother’s house, into a townhouse in Lockleys, in November 2016.[32] In around January or February 2017, the accused stayed with her at her Lockleys property whilst she was pregnant for about a month as he did not have a place to stay elsewhere.[33] She slept upstairs in her bedroom and he slept downstairs in the living room.[34] In cross‑examination, she agreed that she was having sex with the accused during this period.[35] She said she started to feel uncomfortable and told him that he could not stay there anymore.[36] He was very upset hearing this news but left.[37]
[32] T24.
[33] Ibid.
[34] T25.
[35] T62.
[36] T25.
[37] Ibid.
She agreed in cross‑examination that the accused wanted to be involved in her and her son’s life after January 2017.[38]
[38] T99.
In re‑examination, she agreed that the accused was living with her on 11 February 2017 when they are discussing an appointment at Ashford Hospital and the prospect of the accused attending the appointment before she told him that he would not make it in time.[39]
[39] T107.
In cross‑examination, she agreed that she sent the accused a text message (exhibit D1) on 27 February 2017 where she stated, about halfway through the message:
Yesterday I asked you if you wanted to have dinner with us cause I wasn’t sure if you had something to eat. You stayed over and I was not expecting that but didn’t really mind too much but I do now.[40]
[40] Exhibit D1.
She agreed that the accused staying over was not something she objected to at the time but that she later regretted.[41] She disagreed that she felt used by him. She said she regretted it because it sent a confusing message to her daughter having the accused around. She disagreed that she regretted it because it was confusing to the accused.[42] In re‑examination, she said that she could not remember if the accused was living with her at this time.[43]
[41] T82.
[42] Ibid.
[43] T107.
Their son, M, was born 4 March 2017 at the Women’s and Children’s Hospital.[44] She remained in hospital for 4‑5 days after giving birth.[45] She said she communicated with the accused via text message informing him that M had been born.[46] The accused responded to the message saying something like ‘congratulations to you’ with a Bible quote.[47] He did not visit her in hospital.[48]
[44] T82.
[45] Ibid.
[46] Ibid.
[47] T108.
[48] T26.
After she was discharged, she went to her mother’s house and stayed for a couple of days.[49] The accused visited her mother’s house during this period.[50] She then moved back home to her townhouse in Lockleys.[51]
[49] Ibid.
[50] Ibid.
[51] Ibid.
The accused moved in with the complainant again in around May 2017 when M was about two months old.[52] She thought he was just coming to visit M after being interstate but he ended up staying for 2‑3 weeks.[53] He eventually moved out after she sent him a text message and communicated to him verbally that he had to leave on three separate occasions.[54] She disagreed that the accused appeared to be confused about why she wanted him to leave.[55]
[52] Ibid.
[53] T26-7.
[54] T28.
[55] T78.
She initially could not remember if she had sex with the accused while he was living with her during this period in cross‑examination.[56] After being reminded of an occasion on 23 April 2017, where she initiated sex with the accused via text message, she agreed that they were having intercourse at that time.[57] She disagreed that she regretted having sex with the accused as it was signalling to the accused that they were getting back into a relationship.[58] She said there was no spoken understanding between her and the accused as to the casual sex that was occurring after they broke up.[59] However, she perceived that the accused understood they were not in a relationship despite them continuing to have sex.[60]
[56] T63.
[57] Ibid.
[58] T71.
[59] T72.
[60] Ibid.
She said the next time she saw the accused was 4 June 2017.[61] They had had phone conversations in the intervening period.[62] She disagreed in cross‑examination that she spoke with the accused via telephone on 10 May 2017 about the accused being confused about the relationship and wanting to stay over.[63]
[61] T29.
[62] Ibid.
[63] T76.
The complainant gave evidence that on 4 June 2017, the accused rang her in the morning wanting to see M.[64] She said that was fine but that she had to be somewhere by 12.00 p.m. The accused arrived at her townhouse at around 10.00 a.m.[65] Prior to his arrival, she was packing the children’s clothes for a sleepover at her mother’s house.[66] She was still wearing her pyjamas when the accused arrived.[67]
[64] T29.
[65] Ibid.
[66] Ibid.
[67] Ibid.
When the accused arrived, he walked in and went straight to M and picked him up and said ‘hi’ to Z.[68]
[68] T29-30.
She said it was hostile between herself and the accused. They did not exchange greetings, ‘he kind of’ ignored her and the energy was negative.[69]
[69] T30.
She then told the accused that she needed to have a shower and asked him to keep an eye on M for her.[70] She disagreed in cross‑examination that she motioned to the accused in a suggestive manner when she told him that she was going upstairs to have a shower.[71] Her clothes were on her bed in her bedroom upstairs.[72]
[70] Ibid.
[71] T90.
[72] T30.
She had a shower in the upstairs bathroom for 10‑15 minutes.[73] The bathroom door was left ajar so that she could hear the children as she showered.[74] She disagreed in cross‑examination that she left the door open for the accused to come up to see her.[75] While she was in the shower, she heard M crying and Z call out that M was crying.[76] She then rinsed herself and turned the tap off.[77] She got out of the shower, dried herself and put on her white bathrobe.[78] She had nothing on underneath the robe.[79] She then came out of the bathroom and saw the accused holding M by the stairs, near the door.[80]
[73] Ibid.
[74] Ibid.
[75] T91.
[76] Ibid.
[77] T31.
[78] Ibid.
[79] Ibid.
[80] Ibid.
She took M from the accused, sat on the side of her bed towards the end and started to breastfeed M.[81] The door was to her back, to her left, slightly behind her.[82] As she was feeding M, the accused was standing by the door.[83] He said to her, ‘why are you being mean to me?’ to which she replied, ‘I’m not being mean, I wasn’t being mean to you’.[84] After she finished feeding M, she lay M on his back, turned her back to the accused and started putting on her underwear and jeans.[85]
[81] Ibid.
[82] Ibid.
[83] T32.
[84] Ibid.
[85] Ibid.
The accused then came from behind her and put his arms around her torso, pinning her arms to her hips.[86] She had her jeans on and was trying to button them when he came up behind her.[87] She does not remember if she still had the bathrobe on.[88] She believed that he wanted to have sex with her and kept saying ‘stop it’.[89] They were wrestling around the room.[90] She kept repeating ‘stop it, I don’t want you’.[91] After 3‑4 minutes of struggling, he loosened her grip on her, allowing her to pick up M and her top from the bed and go downstairs.[92]
[86] T33.
[87] Ibid.
[88] Ibid.
[89] Ibid.
[90] Ibid.
[91] Ibid.
[92] Ibid.

The accused followed her down the stairs. Nothing was said between them.[93] She put M in his portable bassinet.[94] Z was sitting on the floor watching the TV, 3‑3.5 metres from M.[95] The kitchen was about 2 metres from the TV and bassinet.[96]
[93] T34.
[94] T35.
[95] Ibid.
[96] Ibid.
She went around to the benchtop in the kitchen, behind a wall to be shielded from view while she put her top on.[97] She agreed in cross‑examination that she wanted to get dressed downstairs because she felt safer there with her children being present.[98] The accused was sitting out of her view on the sofa while she did this.[99] He said to her, ‘that was a smart way of doing it’ to which she did not respond.[100] She thinks he was referring to her coming downstairs and getting dressed downstairs to prevent what he wanted from happening.[101]
[97] Ibid.
[98] T91.
[99] T35.
[100] Ibid.
[101] T36.
She then realised that her shoes were upstairs by the bed.[102] She contemplated whether to go upstairs to get them or to go to her mother’s place barefoot.[103] She decided to go upstairs quickly to get them.[104] She disagreed in cross‑examination that going straight back upstairs after the accused said, ‘smart way of doing it’, referring to going downstairs to avoid sex, gave the impression that she wanted sex.[105]
[102] Ibid.
[103] Ibid.
[104] Ibid.
[105] T92-3.
She walked around the kitchen, and past the bassinet and sofa, where the accused was sitting, to go upstairs.[106] As she was running upstairs she heard him running behind her.[107] In cross‑examination she explained that she did not think that the accused would come upstairs after her.[108]
[106] T36.
[107] Ibid.
[108] T93.
The complainant said once she got upstairs, she went to put her shoes on and the accused came from behind her and again pinned her arms in the same manner.[109] They again struggled and she kept saying, ‘Stop it, I don’t want you, I’m serious, you need to stop’ to which he did not reply.[110] As they were wrestling they ended up on the other side of the bed and she ended up facing him.[111] His arms were around her, trapping her with her arms by her side.[112] They were face‑to‑face and she could see that he was smiling.[113]
[109] T36.
[110] Ibid.
[111] T36-7.
[112] T37.
[113] Ibid.
He then used his weight to cause her to fall on the bed on her back.[114] When she landed on the bed he was on top of her with his head above hers.[115] His right forearm was holding her down while he unbuttoned her jeans with his other hand.[116] She continued to say ‘stop’ and that she didn’t want him, to which he did not respond.[117] She struggled by moving side to side and trying to loosen his arms but she could not move and felt trapped underneath his weight.[118] She cannot remember if she could move her legs.[119]
[114] T37-8.
[115] T38.
[116] Ibid.
[117] Ibid.
[118] Ibid.
[119] Ibid.
The accused tried to pull her jeans down. In cross‑examination, she described the jeans as tight, straight‑legged, stretch material jeans with a button fly.[120] She said she could feel her jeans getting lower and lower until he managed to get the right leg of her jeans off.[121] She cannot remember what position her legs were in.[122] She said he then moved her underwear to one side and inserted his penis into her vagina.[123]. The top half of his body was just above hers. He struggled with her jeans, using one arm to hold her down and the other to take off her jeans.[124] She cannot remember feeling the weight of his lower body on her.[125]
[120] T95.
[121] T39.
[122] Ibid.
[123] Ibid.
[124] T40.
[125] Ibid.
After he put his penis inside her vagina he commenced having sex with her.[126] She froze and stopped resisting him. She said she did not make any sound as her daughter was downstairs.[127] In cross‑examination, she agreed that she thought that the accused would not have sex with her if Z was present.[128] She said she did not want Z to come upstairs because she did not want Z to see what was happening.[129] The sex lasted for about a minute.[130] He then stood up and went to the bathroom while she remained lying on the bed in shock for a few minutes.[131] She cannot remember if the accused ejaculated.[132]
[126] Ibid.
[127] Ibid.
[128] T95.
[129] Ibid.
[130] T40.
[131] Ibid.
[132] Ibid.
She then pulled the right leg of her jean.[133] The other leg of jeans was still attached to her leg.[134] Once she realised he was not in the bathroom, she left the bedroom and went into the bathroom to clean herself.[135]
[133] T41.
[134] Ibid.
[135] Ibid.
When she went downstairs, the accused was sitting on the edge of the sofa near the bottom of the stairs, smiling at her.[136] Z was still watching television.[137] He tried to give her a hug and she said, ‘don’t touch me’ without looking at him.[138] He did not say anything in reply.[139]
[136] Ibid.
[137] T42.
[138] Ibid.
[139] Ibid.
She said she told him to leave but he remained sitting there, smiling.[140]
[140] Ibid.
After telling him to leave several times, she told him that what he had done was wrong and that he did not stop after she told him to.[141] Again the accused did not reply.[142]
[141] Ibid.
[142] Ibid.
She then opened the front door, and held it open for him but he refused to leave.[143] She packed her bags and put the bags and children in the car that was parked in the driveway in two trips.[144] As she was putting M into his capsule in the car, the accused came behind her and said, ‘call me later tonight and I will give it to you the way you want it’.[145] After she placed M in the car seat and the accused was out of the house, she locked the front door.[146] She disagreed that the accused kissed her on the cheek to say goodbye.[147]
[143] T42-3.
[144] T43.
[145] Ibid.
[146] Ibid.
[147] T86.
She then drove to her mother’s house.[148] She did not tell her mother about what had happened.[149]
[148] T43.
[149] Ibid.
The same day the complainant messaged the accused to tell him to stay away from her.[150] When she sent this text message she was at her mother’s house, in her car after dropping the children off inside.[151]
[150] Ibid.
[151] T108.
She then went grocery shopping before returning home in the afternoon.[152] She recalled it was the day between her and her sister V’s birthdays so she was preparing dinner for a celebration that night.[153]
[152] T44.
[153] Ibid.
When V came around she told her that ‘he [Lanri] raped me while [Z] was downstairs’.[154] She did not tell her anything else about what happened.[155] MM gave evidence that V had passed away since that conversation.
[154] Ibid.
[155] Ibid.
In the following weeks, she said she tried to forget what had happened and attempted to live her life as normal.[156]
[156] Ibid.
On 9 June 2017, the accused sent a message requesting to see M saying that he hoped that they were all doing okay. She replied to the following day.[157] In response to her message on 10 June 2017, the accused replied:
Remember you said it before: “I will make you suffer if you ever get me pregnant”. Keep in mind I have that also.
[157] T44-5.
She agreed in cross‑examination that she told him at the start of their relationship ‘I will make you suffer if you ever get me pregnant’.[158] She said that this was in reference to pregnancy hormones and having him at her beck and call, rubbing her back and fulfilling her cravings.[159] In re‑examination she explained that the comment was meant in jest.[160]
[158] T89.
[159] Ibid.
[160] T109.
At the end of June or early July, she told her sister, LM that the accused had come over during their birthday weekend, wanting to see M and raped her, while Z was downstairs, as she was getting her shoes from upstairs.[161] She told LM how they struggled and how he pulled her jeans and her fear of screaming and alerting her daughter.[162] She told LM what he said to her while they were by the car, about giving her a call later and him giving it to her the way she wanted.[163]
[161] T45-6.
[162] T46.
[163] Ibid.
The complainant reported the matter to police on 9 December 2017 after she encountered the accused at Light Spot and Coles, Kurralta Park on 9 December 2017 and him approaching and picking up M for the first time since 4 June 2017.[164] She disagreed that the accused made it clear that he still wanted to be part of the children’s lives on this occasion on 9 December 2017 in cross‑examination.[165] She agreed that the accused asked her children what presents they wanted for Christmas.[166]
[164] T47-8.
[165] T101.
[166] Ibid.
The complainant disagreed in cross‑examination that she had consented to having sex with the accused on 4 June 2017 but later regretted it because she had weakened and given in to him. She denied that she had persisted with her allegation that he raped her because she wanted him out of her life.[167] She did not agree with the suggestion that the accused would not pick up cues in their relationship and that she would have to continually clarify herself.[168] She disagreed that 4 June 2017 was an occasion where she was upset with the accused for not letting her climax first.[169]
[167] T79.
[168] T85.
[169] T96.
She disagreed when questioned in cross‑examination that she knew that there was a family dispute resolution organised by the accused for 12 January 2018 to negotiate child access.[170]
[170] T101.
In re‑examination, she agreed that the accused asked her in a text message on 18 December 2017 to elaborate on what she meant by her not wanting anything from him.[171] She said she elaborated by explaining to him that because he had made it clear throughout her pregnancy that he did not want anything to do with the baby she had no expectations of him.[172]
[171] T106.
[172] Ibid.
The complainant’s older sister, LM also gave evidence. She has been living in Melbourne, Victoria for the past seven years.[173] She said she calls the complainant ‘Rita’.[174] She and Rita had another sister, V who passed away in 2018.[175] Since 2017 she has spoken to the complainant 2‑3 times a week mainly via telephone.[176]
[173] T111.
[174] Ibid.
[175] Ibid.
[176] Ibid.
She said in July 2017, proximate to her daughter’s Holy Communion, Rita called her and told her that she had to tell her something.[177] Rita proceeded to tell her that Lanri had raped her.[178] The complainant said Lanri had come over to visit their son some several weeks prior.[179] She told her that Lanri was downstairs with their son and her daughter and she asked him to watch over the children so that she could go upstairs to have a shower.[180] After she came out of the shower she went into her bedroom and put her jeans and top on when she heard someone behind her.[181] She turned around and said she was startled before Lanri started coming onto her, trying to kiss her.[182] She said that the first thing that she said to him was, ‘Lanri, we’re not together’ but he kept advancing on her so she kept telling him ‘stop’ and ‘move off’.[183] She told her that she had her hands up in attempt to get him away from her.[184] She then said that he came right onto her body as she was saying ‘get off me’ and he pulled down her jeans and raped her.[185] The complainant went on to tell her that once she realised that he was not going to stop, she froze and could only think about the safety of her children downstairs.[186] She told her that Lanri was telling her things while this was happening but LM cannot remember what they specifically were.[187]
[177] T112.
[178] Ibid.
[179] Ibid.
[180] T113.
[181] Ibid.
[182] Ibid.
[183] Ibid.
[184] Ibid.
[185] Ibid.
[186] Ibid.
[187] Ibid.
In cross‑examination, LM gave evidence that she had only been provided with a copy of her own statement.[188] She said that she had not been provided with any documentation from her sister or discussed the matter with her before attending court.[189]
[188] T114.
[189] Ibid.
She said that her sister and the accused were cordial with each other at the start of 2017 and remained that way even after their child was born.[190]
[190] T116.
She said she was aware that the accused was living with the complainant at the beginning of 2017 but she was not aware of whether they were having sex or not at this time.[191]
[191] Ibid.
LM said that she knew that the complainant and the accused had separated prior to learning of the pregnancy as the complainant called her and told her about the break up.[192]
[192] T117.
She has met the accused about a dozen times on her visits to Adelaide, both before and after her sister’s pregnancy.[193]
[193] Ibid.
That completed the prosecution case.
Accused’s Evidence
The accused gave evidence. He was born in Nigeria and came to Australia in June 2014. English is not his first language. He learnt English at school. He met the complainant at a nightclub, Zhivago, in the same week or possibly the following week after he arrived in Australia. He came to Australia to study Finance at Flinders University. In about August 2014, he commenced a relationship with the complainant that included having sexual intercourse. He gave evidence that in 2016, he saw the complainant a number of times per week. In June 2016, he found out she was pregnant. He described their ‘point of communication’ being broken at that stage. He identifies it as being broken because he told her that he did not want a baby and said he is now very sorry that he did that.[194] They did not communicate for about three months. In October 2016, they commenced communication again. They met near the car wash close to her mother’s house and he apologised for what he had said about the baby.
[194] T123.
In respect of the evidence given by the complainant that they had broken up in May, he said ‘May 2016 I don't think ‑ there wasn't no justification for our break up. There wasn't just no justification for our break up you know. I just don't see it.’[195] He denied that she said, ‘I am done with it’. He described the complainant’s attitude after October 2016 as being ‘nonchalant’.[196] By this, he meant that sometimes she was interested in him and sometimes she was not.
[195] T126-7.
[196] T128.
He said that in January 2017 when the complainant was pregnant, he was living with her at her house at Lockleys until he went to Western Australia in February. After he came back, he stayed with the complainant again until possibly sometime in May. He got his own premises on 17 May 2017.[197] He said during that time, they sometimes slept together in the bed and sometimes he slept alone downstairs on a sofa.[198] He thought his relationship with the complainant was still normal at that time and believed they were together. He described his relationship with the complainant as being one where either of them would initiate sex. She would sometimes flirt with him and they would tease each other. He was asked in cross‑examination,
QDid you ever push each other away while you were being intimate.
APush each other away - I wouldn't really - sometimes you know, sorry, repeat the question?
QIn a playful way.
ASometimes, you know, sometimes I push her away. There's something I always do before just to make her laugh you know, but I really don't recall what it was, you know. I think over time I will recall it anyways.
QHave you ever pinned her arms down.
ANever, never.[199]
[197] T153, 172.
[198] T130.
[199] T132-3.
He gave evidence that there were issues in relation to him climaxing before her and at first, she voiced those concerns but later said nothing, sometimes she would walk away and say, ‘stop, leave me alone’.[200]
[200] T134.
He said that he found out about the birth of their child after he had been trying to contact her and finally she picked up the phone and said she was at her mother’s house.[201] He denied that he had been sent a text or that he sent a text to her in relation to the birth of their child.
[201] T136.
In respect of the text messages, he was quite confused about much of it. He said, he considered that the context of them meant that they were still together throughout 2017.[202]
[202] T138-9.
He gave evidence that after their son was born, the complainant went to stay with her mother for a while but then went back to her own house. He then lived with her for a while. He said in relation to a message sent on 23 April 2017 that it was a message from Rita, initiating sex with him. He went on to say although they had sex on that day, they did not have sex very often after M was born.[203] In relation to the initiation of sex, he said that they would give signals to each other that they wanted to have sex and he gave examples.[204] He said sometimes the complainant’s facial expression changed after sex.
[203] T144.
[204] T145.
He said on 10 May he was working at Adelaide Brighton Cement, having been called in in the middle of night, but had an accident at work and that was what the reference to the message on page 26 of exhibit D1 was. In relation to page 27 of exhibit D1 and the conversation that appears to relate to him leaving the house, he said,
QWhat did you think about her wanting you out by that Sunday.
AI didn't take it as anything - by that Sunday I didn't take it to be anything. I had my car; even if I don't have a friend to go over to his place, I could easily sleep in my car and that is probably what I did that night. That's probably what I did. That's probably what happened that night, I'm not sure but more than likely.
QDuring this time in May 2017, would you sometimes sleep in your car because Rita was upset with you.
AI know I slept in my car a couple of times before around that time. Yeah, but I didn't look at it like she did anything for me to leave, you know, I was always just concerned about my work the next day, that's all I was concerned about.
QWhy would you be concerned about work the next day.
ABecause of where am I going to take a shower now, where am I going to have a shave. I was always just focussed on, you know, how do I work and things like that.
QWas your understanding of these messages that Rita wanted you to leave permanently.
AI'm not sure, I'm not sure now. I'm not sure, no, I'm definitely not sure.[205]
[205] T148-9.
On 17 May 2017, he moved to his own premises at Kurralta Park.[206] He said he continued to visit the complainant after he moved out. He was asked how often he had sex with her after he moved out.
QHow often did you have sex after you'd moved out.
AHow often, it was just like every time I went back over there, you know. I mean, we did what we did. It wasn't - you know, it wasn't.[207]
[206] T153.
[207] T153.
In relation to the day of the alleged offence, the accused said he had made an arrangement to go to the complainant’s house. When he arrived, she opened the door and let him in. At that stage, she was fully clothed. He said it was ‘a warm environment’ and he went inside and started playing with her daughter. The complainant was in the kitchen and their son was asleep in the bassinet in the living room. She told him that she was going upstairs to take a shower. She looked in his direction and gave him a facial expression, where she put her chin up in air and appeared to be gesturing with her chin.[208] From that, he inferred that she wanted him to come upstairs to have sex with her as that was the normal meaning for that gesture at that time.
[208] T156.
He said he stayed downstairs for about 10 minutes until their son started crying and he carried him upstairs. The complainant was still in the shower. She got out of the shower, turned the shower off, dried herself and came into the room. He said she took their son from his hands and started breast‑feeding him. At that stage, she was completely naked. The child fell asleep whilst she was feeding him, she gave the child back to the accused and he placed him in a bassinet on the side of the bed. The accused said they then started kissing, he kissed her on the cheeks but not on the lips. He gave evidence that the sex started ‘nothing more nothing less’.[209]
[209] T159 Line 12.

The accused said that he thought the sex was normal, he did not force her or pin her like she had claimed. He said that after they had sex, he let her go to the bathroom and he then went in there after her. He then put on his clothes and went downstairs. He was unsure whether their son was upstairs or downstairs when he went downstairs. He denied that the complainant had her jeans on prior to them having sex. He said he did not remove any clothes as she had no clothes on. He denied that the complainant said no to him and denied that she said, ‘I don’t want you’. He said that during sex she was touching and rubbing his back. He denied that she ‘froze’ at any stage. He said that after she came out of the bathroom, she walked past him like her normal self, he then cleaned up and changed himself.
In the loungeroom downstairs, he recounted that he had seen the complainant,
QHave you seen Rita downstairs.
AI saw her downstairs, still in the kitchen, still in the kitchen all clothed up you know.
QAll clothed up.
AClothed up, right - clothing I'm sorry - clothed up, all clothed up. And I was facing [Z], because [Z] was watching TV, and I said 'Well what you are watching' she's like, she said the name of the program, I don't know what it was, I can't remember what it was now, you know. And I sat on the sofa in the living room. I think before sitting on the sofa - I sat on the sofa first, then when she started walking towards me with some stuff in her hand, I don't recall what it was but I believe, right, it was whatever they were taking out, they were taking out to have a sleepover, like she claimed, like she always do when she go out, she say we going to her - she'll say she's going over to her mum's house to have a sleepover, you know. And at this time I was going to hold her, I was going to give her a hug like 'Okay', you know, that was when she's like 'Don't touch me'. As soon as she said 'Don't touch me' I was like, okay, you know. You know, like Miss Attitude, something like that you know, but I didn't say that. I was like 'okay' you know. I withdrew from when she said 'Don't touch me', I pulled back and I continue conversation with me, I and [Z] in the living room.
QHow did you feel when she said 'Don't touch me'.
AI respected no touching her at that point. I respected her not touching her at that point. She said 'Don't touch me', 'Don't touch me' means don't touch me.
QHow did you judge her behaviour towards you at that time.
ASay that again please.
QHow did you judge her behaviour towards you at that time.
AHer behaviour at that time. How I enjoyed the behaviour at that time. I thought it was a nonsense.
QHow did her behaviour towards you change between when you had arrived at her house and after the sex.
AYeah, the behaviour seemed to change when we got in the car. Once again from that point when she said 'Don't touch me' she was looking away like. It wasn't uncommon for her to look away. It wasn't as though it was uncommon for her to look away.
QShe wouldn't look at you.
AShe wouldn't look at me. She was looking away and I was focusing on [Z]. I was just waiting for her to get ready to go after that. It was not the first time she wanted to go out and wanted to leave.[210]
[210] T162-4.
He then went on to describe carrying their son to the baby seat in the car and said that before the complainant left he said, ‘I’ll see you there, I’ll call you there’.[211] He was then asked about text messages between himself and the complainant. He said he was not sure what the meaning was of the text messages that she was sending him. He said that what she said was all made up stuff. She did not say anything of that nature to him and he thought everything was normal in bed that day.[212]
[211] T165 Line 15.
[212] T169 Line 29.
He said that he next saw the complainant in December 2017. By that stage he thought his romantic relationship with the complainant was over. He understood it was over when he started to see the text messages and he realised that something was wrong.
He went on to say that he saw the complainant at a place called Light Spot on Anzac Highway on 9 December 2017 when he was coming from either university or work. He said he started to talk to the children asking what they wanted for Christmas, and later that day, he saw them at Coles at Kurralta Park. That meeting was not planned, he lived around the corner. During that time, he said there was a conversation where he asked if he could carry his child, the complainant gave him the child and he remembers saying words such as, ‘don’t worry your mum is going to take care of you while I sort myself out’.[213] He then gave the child back to the complainant. He went on to say that the complainant made a comment to him that day that was not so good and he went directly to the library and started printing out the messages from his phone. He then contacted his lawyer and later tried to arrange mediation. On further reflection, he said that whilst they were at Coles the complainant said to him ‘I’ll make sure you don’t see this child again’ to which he replied, ‘you can only try’.[214]
[213] T189 Line 36.
[214] T191 Line 19.
Prosecution Address
Mr Stratton‑Smith addressed on behalf of the prosecution. He invited me to find that the complainant was an honest witness and a very accurate historian. He submitted that she gave her evidence with care and in detail of which there were many examples. He said that her description of the events on the day in question followed logically in a very realistic fashion, including what he described, as the very realistic process in respect of having left her shoes upstairs after the first incident with the accused. He said that it is not unusual in matters of this type, for a complainant not to be able to recall all events but MM had clearly said when she was unable to recall a particular event. Mr Stratton‑Smith said that much was made of what was said to be their relationship, that is, whether it was a relationship as commonly understood or a friendship where from time to time they had sexual intercourse. The difficulty, he submitted, is that it is not plain what was meant by each of them by the word relationship and neither is it significant. He said that whether or not they had a relationship of any kind, would not change the nature of the allegation that the complainant was making that she had consistently said no, had tried to stop the accused and he had nevertheless gone ahead and had sexual intercourse with her. He said that the complainant could be accepted in respect of her understanding of a relationship at that time.
In contrast he said, that the accused was a very poor witness. His grasp on matters such as a chronology was poor and there was no reason for that. He submitted that I could safely reject the denials that an offence took place as his evidence was rambling, incoherent and changed in significant details. Mr Stratton‑Smith said that the gesture that was said to have initiated the sexual conduct you would think would be fresh in his mind but became very confused when he was asked to give detail in respect of it. Mr Stratton‑Smith said the lead up to the sexual encounter made no sense at all and his response to the text messages was very defensive. In all, he suggested that I could reject the evidence given by the accused as not reasonably possibly true and accept the prosecution had proved each element of the offence beyond reasonable doubt.
Defence Address
Ms Waite addressed on behalf of the accused and submitted a chronology to supplement her oral submissions.[215] Ms Waite submitted that the complainant and the accused had what could be described as a unique and complex on‑and‑off relationship. She submitted that after May 2016 there was a period of time when the complainant and the accused were not in constant contact but that after the birth of their son in March 2017, there was a period when they continued in their relationship. The accused’s comprehension of the relationship was that they were in a relationship and continued to have sexual relations during that time. Ms Waite submitted that from the text messages, it is difficult to get a clear picture of the true nature of the relationship given the unusual and careful text messages that are sent at a time when it appears things are hostile. She submitted, however, that there are also communications that are ‘peppered with love and evidence of expressions of sexual intimacy’.[216] She submitted that the accused did not understand the true nature of the relationship and they probably were a couple who had different views about the same relationship.
[215] Exhibit D5.
[216] T254.
In respect of the allegations, she suggested that the events described by the complainant were an unusual feature of their relationship. There had been no previous allegations of aggressive behaviour by the accused sexual or otherwise. She submitted that despite the fact that it had been an on‑and‑off again relationship, I could feel confident that they had sexual relations in 2017 as this was not in dispute. She suggested that the behaviour as described by the accused of the complainant on the day in question was not extraordinary. There is no reason to think that being naked in front of an ex‑partner was something that could not occur. She submitted that this was a couple who had sex with each other but were not in a relationship on the complainant’s evidence. She said that the nature of the text messages is from a person, the accused, who is caring and checks in on how the complainant is feeling. She said, ‘the entire flavour of the SMS correspondence before the court is of a man who is treading carefully around a minefield of potential issues that might offend [the complainant] or initiate an icy period of non‑correspondence.’[217] She said although it may seem that he has little insight in relation to the volatility of this relationship, that does not discount the fact that his advances appear to be careful and continual.
[217] T257.
Ms Waite analysed the evidence of the initial complaint and the elaboration and said that the account given to LM had significant differences, one being the description of one continuous event occurring from the time the complainant got out of the shower.
Ms Waite submitted that the suggestion of the ‘two‑part advance’ given by the complainant is unrealistic and questionable. In particular, it is questionable that the complainant being in fear of a potential sexual assault would have returned to the bedroom upstairs to collect her shoes, because the complainant had sought refuge downstairs in order to put her top on. She suggested that the unreality of the situation described by the complainant casts a doubt over her account. She also suggests that the account given by the complainant about her jeans should be doubted. She submitted that the jeans ‘…were tight button‑up jeans that were removed in an apparent struggle with only one leg off but completely removed over the foot…’.[218] However, the underpants remained in place. Ms Waite suggested that this was unrealistic.
[218] T260.
She said the behaviour of the complainant after sex was consistent with the way the complainant behaved after consensual sex being ‘nonchalant’ which was defined as ‘coolly, unconcerned, indifferent, unexcited, dispassionate, aloof, detached and unemotional’.[219] Whilst it is an unusual word for the accused to have adopted, it may in fact be an appropriate word to describe his observations of the complainant at that time, she submitted.
[219] Ibid.
She went on to submit that the accused should not be criticised for the vagueness of his account as that is readily explained by the fact that the incident did not represent a significant incident of sex for the accused. She said that the text messages provided a good chronology in respect of the accused’s understanding of what had occurred during the encounter on 4 June 2017.
Ms Waite went on to submit that when the accused saw the complainant on 9 December, it is possible that the complainant saw that as her opportunity to get the accused to stay out of her child’s life and made a false report to the police. This was because she had not seen him for about six months and was then concerned that he might try to re‑commence being in their lives. She submitted that this was a case of regretted sex where the complainant had given consent at the time of sexual encounter. She said that the notion that the complainant did something and later regretted it was supported by the message sent on 27 February[220] where she said, ‘you stayed over I was not expecting that but I really didn’t mind too much but now I do’.[221] She submitted that this is a case where I may not be able to find where the truth lies in particular given the complexity of the relationship including the involvement of a child and the spectre of access and Family Court proceedings.
[220] Exhibit D1 Page 23-4.
[221] T269.
Uncharged Act
The incident that the prosecution alleged occurred prior to the charged offence involved the grabbing of the complainant from behind with his arms around her torso and pinning her arms to her hips. The complainant’s evidence is that she kept telling him to stop and they were wrestling around the room. After 3‑4 minutes of struggling, he loosened his grip on her, she picked the child up off the bed and went downstairs with her top. It was shortly thereafter that the charged act occurred. Although the first incident is not a charged act, it is so closely connected in time and proximity as to have relevance in understanding the charged act that followed thereafter. I have only used this evidence for that purpose. I have not used it to conclude that the accused is a sort of person who would have committed this offence nor that he did commit this offence as a result of that conduct.
The evidence also has another use. It was suggested by the defence that it makes it unlikely or improbable that the charged act occurred in the way in which the complainant said. They argued that it was unlikely that she would have returned upstairs in the circumstances in which she did, knowing that the accused had an interest in engaging in sexual activity with her. This evidence can be used by me to explain why the complainant acted in the way that she did in going upstairs to collect her shoes having given some thought to whether she should or should not collect the shoes in that circumstance. I indicate most clearly that I have not used it for a propensity use nor have I engaged in any bad person reasoning.
Discussion
There were a series of text messages[222] that were tendered by the defence in this case. They were tendered in order to put some context around the relationship in which the complainant and the accused were said to have engaged. It was said that they indicated an on‑and‑off relationship and that they supported the assertion by the accused, that the complainant had on at least one occasion, engaged in behaviour that she later regretted and then told him. There are however in these text messages, messages that are potentially very prejudicial to the accused. One of these messages is a message sent by the complainant at 11.00 a.m. on 4 June, about an hour after the alleged offence that said,
You violated my boundary and body. I told you no repeatedly and you did not stop. I do not want you and do not want to be with you. You are no longer welcome to my house. And if you don’t see what you did was wrong there is something seriously wrong with you.[223]
The accused replied,
What is the meaning of this?
You definitely have a plan for me.
Our goodness comes solely from thinking on goodness; our wickedness from thinking on wickedness. We too are the victims of our own contemplation.[224]
[222] Exhibit D1.
[223] Ibid 31.
[224] Ibid 32.
In the circumstances of this case, the text message sent by the complainant is no more than a prior consistent statement made by her as to her allegations. The evidence is that she first complained to her sister, V on the same evening. There is no suggestion that there is a recent invention by her. I have not had regard to this text message for the purpose of supporting the version given by the complainant or for any other purpose that is prejudicial to the defence. The message cannot buttress the credit of the complainant. Similarly, the response by the accused is equivocal. It does not amount to an admission made by him and cannot be used in that way. I indicate that I have had no regard to it in determining the charged offence in this matter.
The following text was sent on 9 June 2017 at 2.18 p.m.,
Hey Rita, how’s your day going? I called 4 time[s] since last weekend, just hoping everything is alright.
Also, this weekend, if p[o]ssible set a time to come and visit [M] and [Z]. Thanks Rita.[225]
The complainant replied the following day at 9.54 a.m.,
What you did to me last weekend is called rape! What makes you think I want you anywhere near me. You have no respect for me, my body and boundaries. You better not come to my house.[226]
To that, the accused replied,
Rape, that’s what you wanna call it? Ok. Keep in mind I’ve known you long enough to you your tricks and games you play. I’m not surprise[d] at what your true intentions are and would never be surprise[d] what come my way. You[r] eyes always say it all.
Either way I wasn’t expecting any reply from you anyways. You’ve consistently shown me who you are but on the short run, you know who gets hurt, “US”, but [i]n the long run, it’s [M].
If I never called, you’ll be the first of all people to say I don’t care….. keep that in mind. Also because I’m dealing with a lot right, and at my lowest of all time you are “free” to toy around with me,
Only GOD can judge US all. You will never be the judge.[227]
[225] Ibid.
[226] Ibid 32.
[227] Ibid 33.
The text message sent by the complainant is not relevant to my consideration as to whether the charged act has been proved. It is once again a prior consistent statement that is irrelevant and otherwise, inadmissible. His response to it is not suggested by the prosecution to amount to an admission and is in fact equivocal in any event. It cannot be used for that and it cannot be used against the accused in any way. In all, I can see no use for the text messages that are sent post the alleged offending to support the assertions made by either party or to undermine the prosecution case in respect of this matter.
The complainant in this matter gave her evidence in a compelling, concise and coherent fashion. This is to be contrasted by the manner in which the accused gave his evidence which was rambling, difficult to understand and at times, unresponsive. However, I remind myself this is not a case where the competing versions given by the accused and the complainant is the question. I remind myself that English is the second language for the accused, that it appears his manner is to be verbose and he sometimes struggled with explaining himself. I have taken all of these features into account.
I have borne steadily in mind that even if I do not positively believe the evidence of the accused, I cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.[228]
[228] Liberato v The Queen (1985) 159 CLR 507.
The complainant was consistent in the version that she gave in respect of the charged incident. She was very clear about what had occurred to her. She complained that evening to her sister V in brief terms. About a month later, she told her elder sister LM in greater detail including when the incident was alleged to have occurred, that the accused wanted to see their son and she was upstairs getting her shoes when it occurred. She told her how they struggled, how he pulled her jeans and her fears of screaming and drawing attention to what was happening to her daughter who was downstairs. I accept the criticism of the defence that she does not, in this account, tell her sister of the earlier event in the bedroom that led to her coming downstairs before returning upstairs for her shoes. However overall there is consistency of conduct in relation to her complaint to her sister V on the night of the alleged offence and her sister LM about a month later in greater detail. Her words are broadly consistent with what occurred allowing for what I determine not to be significant difference in her account.

I am satisfied that the complainant has not made a false allegation to ensure that the accused does not have contact with her or with their son. She had, until this particular date, been amenable to the accused having contact with their son when he wanted to. I am satisfied that it was the events on 4 June 2017 that changed her view in relation to the accused.
I do not accept the suggestion made by defence that it was unlikely that her clothing was removed in the way that she said. The accused is a large and powerfully built man. He could have removed her jeans in the way that she described, leaving them dangling off one leg and then performed the act of sexual intercourse that she said. I do accept the complainant’s evidence that she did not want to scream and alert her four‑year‑old daughter to what was occurring in the bedroom and run the risk of that child seeing her being sexually assaulted by the accused. I reject the criticism of the complainant made by the defence in this regard.
The context of the text messages as suggested by the defence is to be rejected. The context of the text messages, prior to the alleged offence, is one of a man who wittingly or unwittingly persistently refuses to hear or acknowledge what is being said to him. An example of this is the complainant wanting him to leave the house and him persistently remaining at her house until she leaves him with no option other than to leave.
I consider the complainant to be a truthful witness who gave a reliable account of what occurred at her premises on 4 June 2017. I do not think the criticism of her going back upstairs to collect her shoes in those circumstances is well‑founded. This incident is said to have occurred in June during winter, when she intended to drive her children to her mother’s house prior to going on to another destination; it is not unreasonable to think you would want your shoes on on that occasion. It is also not unreasonable to think that with your two young children in the house, you could get your shoes without being sexually assaulted by the accused. I do not think the criticism of her evidence in relation to the way her clothing was removed is reasonable. The accused used his body weight to pin her down on the bed and his hands to remove her clothing, while she was making it very clear that she did not want to engage in any sexual conduct at all with him. Nevertheless, he persisted. I do not accept that there was the head gesture as described by the accused and that he then remained downstairs with the children until the boy started crying and then went upstairs when sexual conduct occurred consensually between them.
I did not regard the accused as a credible witness and I do not consider that his evidence is reasonably possibly true relating to the charge. In short, I reject his evidence. Even making allowance for the difficulty that he had with English and his unique personality traits, his evidence was at times rambling and disingenuous. I accept the evidence of the complainant that she considered the relationship was over in May 2017.
I do not accept the suggestion that there was a sexual relationship that included the complainant giving any false signals to the accused such as saying ‘no, no, no’ and then when he stopped asking him to start again. I note that the accused did not give evidence that this was a part of their sexual relationship despite this suggestion being made to the complainant.
I do not accept that the accused was invited in any way into the complainant’s bedroom or that he misinterpreted her request that he look after the children while she had a shower, as an invitation to engage in sexual conduct with her. I reject his evidence that the complainant gave him a signal with her chin or that he even thought that was so.
I accept the evidence of the complainant beyond reasonable doubt that when she was in the shower, the accused came into the bedroom and pinned her arms to her side before letting her go.
I accept that she took the opportunity to leave the bedroom and continue dressing downstairs and that the accused said, ‘that was a smart way to do it’. I find this was a reference to her disengaging from him and defusing the sexual contact between them.
I accept the evidence of the complainant that she did not have her shoes and needed them to drive her children to her mother’s home. I accept that she considered the option of not returning to the bedroom because she had concerns about the accused but though, on balance, that she could get them quickly and avoid any problems.
I find that the accused opportunistically followed her to the bedroom and despite her clear protestations and distress, engaged in an act of sexual intercourse with her. I am satisfied beyond reasonable doubt that this act of sexual intercourse occurred without the consent of the complainant and that the accused knew she was not consenting. Her behaviour both at that time and during the earlier incident had made that very clear to him. Her words were also unequivocal and clear. There was nothing in their relationship that could have led the accused to be confused or unaware of the meaning of her words or conduct at that time.
I reject the suggestion that the complainant’s behaviour or allegations are the product of ‘regretted sex’ or an attempt to distance the accused from herself or their child.
The complaint was made promptly and while in brief terms initially, was elaborated upon within a month to her older sister. Although it was not a complete account, it contained the salient issues and was broadly consistent with her account in court.
I reject the suggestion that the subsequent report to the police was false or contrived because the complainant did not want the accused to have contact with the children, in circumstances where her initial complaint was made on the day of the events occurring and followed by her elaboration.
Conclusion
I am satisfied beyond reasonable doubt that the sexual intercourse occurred on 4 June 2017 between the accused and the complainant in the manner in which the complainant described in evidence.
I am satisfied beyond reasonable doubt that the complainant was not consenting and that she indicated this clearly and unequivocally by words and actions. I am satisfied beyond reasonable doubt that the accused knew she was not consenting to the act of sexual intercourse at that time, as he heard her words and was required to pin her arms to her side, force her to the bed and forcibly remove her clothing before penetrating her.
Verdict
I find the accused guilty of the offence of rape.