R v Ozgur
[2010] SADC 138
•4 November 2010
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v OZGUR
Criminal Trial by Judge Alone
[2010] SADC 138
Reasons for the Verdict of His Honour Judge Tilmouth
4 November 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with one count of rape - trial by judge alone - complainant suffering loss of memory at critical periods - prosecution unable to demonstrate an inference either that the complainant did not consent or the requisite mental state of mind beyond reasonable doubt - verdict of not guilty entered.
Criminal Law Consolidation Act 1935 (SA) s 48; King v The Queen (2003) 215 CLR 150; DPP v Morgan [1976] AC 182; R v Wilson (1986) 42 SASR 203; R v Baltensperger (2004) 90 SASR 129; R v Blayney (2003) 87 SASR 354; Papadimitropoulos v The Queen (1957) 98 CLR 249; Fester v The Queen (2001) 208 CLR 593; R v Anderson (2001) 127 A Crim R 116; R v Sheehan & Moore (1975) 60 Cr App R 308; R v Malone [1998] 2 Cr App R 447; R v Bree [2007] 2 Cr App R 158; Pitkin v The Queen (1995) 69 ALJR 612, referred to.
R v Wozniak (1997) 16 SASR 67; R v Lang (1975) 62 Cr App R; Chamberlain v The Queen (No 2) (1984) 153 CLR 521; Shepherd v The Queen (1990) 170 CLR 573, applied.
R v Francis [1993] 2 Qd R 300, discussed.
R v OZGUR
[2010] SADC 138Preliminary
The accused Harun Ozgur, has pleaded not guilty to the charge of rape. His trial proceeded during mid October 2010, this being a trial by judge alone. The prosecution contends that by a combination of circumstantial evidence, the charge is proven beyond reasonable doubt. The accused denies the offence, claiming the inferences arising from the evidence fall short of proof beyond reasonable doubt. In particular the defence contends the prosecution has failed to prove lack of consent and equally it has failed to prove the requisite mental state of mind of the accused necessary to sustain the charge. These reasons deal with these issues through to verdict.
The uncontentious evidence
Most of the evidence for the prosecution was not challenged. A good deal was presented by way of agreed facts.[1] The evidence of the complainant was that in the afternoon of Tuesday 23 September 1997 she was dropped off by her mother on Jetty Road, Glenelg. She was on her own and went there for the purposes of recreation.[2] At this time she was living with her mother, April, in Rosewater, with her then two year old daughter and simply wanted some “time out” away from the home. She went to an hotel to play the “pokies”, situated near the junction of Jetty Road and Colley Terrace, where she purchased and drank a Jim Beam and coke. It was then known as St Vincent’s Hotel.[3] Her evidence was that she had two or three identical drinks before leaving home in the period between lunchtime and some indefinite time thereafter, probably around 3.30 to 4.00 pm.
[1] See Exhibit P13 and further agreed facts at T318.29-.33, T328.7-.11
[2] She is referred to as “the complainant” throughout, simply because of s 71A(4) of the Evidence Act 1929 (SA)
[3] Now the Jetty Bar
Whilst in the “pokies” room of the hotel, she was approached by a man who stood nearby, engaging her in a conversation. She said she was feeling “tipsy” at this time. Although not recalling the actual words, she made it clear she was not interested in engaging in talking, still less anything else with him.[4] Soon after she left to purchase a yiros from an adjacent shop. This was approximately an hour after first arriving in the area. She was approached again by the same man, whilst seated at a table and chairs on the footpath, and when it was still daylight.
[4] T37.24-.37, T38.16-39.15
The following verbal exchange then occurred:[5]
AHe started talking to me again, asking me if I wanted a lift home and I said 'No, I'm fine'. Yeah, and I - he still wanted to give me a lift home. I just said how far it was and just tried to make him not want to take me and, yeah, he just kept on asking me.
QWhat did you say to him about how far it was.
AI said 'It's a long way, it's down Port Adelaide way so it's too far'.
[5] T22.27-.34
Later under cross-examination, she appeared to adopt a statement given to the police that this man also “asked me to come out with him and have some drinks with him”.[6] She explained she was endeavouring to discourage him. It was also at about this time that she suddenly began to feel dizzy “like I was going to pass out”.[7] Her evidence was that “I don’t remember anything after this moment”.[8]
[6] T47.16-.27
[7] T21.14
[8] T23.8-.9
Her next recollection is of waking under a streetlight, “just trying to stand up …. I just kept falling down … I had no idea where I was”.[9] By this time it was quite dark. One thing she could remember was:
the only … I seen was the ones that I was dropped – like, I was under, and then the car lights as they were leaving”.[10]
[9] T23.23-.27
[10] T23.27-.30
She in fact told the police soon after that she had been “dumped somewhere”.[11] She later claimed the vehicle in question was a white commodore with registration numbers commencing VGH or possibly VHG (or some combination of those), however later investigations to identify a corresponding vehicle proved fruitless.[12] There is no suggestion of any connection between Mr Ozgur and a vehicle of this description.
[11] T58.25-.33
[12] See the evidence of Detective Hill T128.7-130.36, 134.9-136.32
The point where she found herself was outside a circular tower block containing residential apartments, the Atlantic Towers. These are situated at the intersection of Anzac Highway and Sussex Street, Glenelg. Although no precise evidence was given about this, the location judging from aerial photographs before the court (Exhibit P5), must have been several hundred metres north of the hotel.
Two occupants of the Atlantic Towers occupying a unit on the fourth or fifth levels facing more or less north towards Anzac Highway, were Suzanne Hutton (as she then was) and her daughter Belinda. They noticed a woman on the footpath below adjacent to the Atlantic Towers, from the vantage point of Belinda’s bedroom balcony. This was undoubtedly the complainant, whom they saw on the edge of the footpath, in a hunched over position.[13] Rather gallantly they immediately proceeded to investigate and render assistance. The best of the imprecise evidence was that it must have been quite late in the evening by then, probably around 10.30 pm.[14] They helped her to stand as she was unable to achieve this herself, walked her into the well of the building and took her by escalator to their apartment. They especially noticed fresh blood on her face “actively bleeding”, which they proceeded to clean up.[15]
[13] T110.27-.36
[14] T318.28-.33
[15] T111.28-.38
The complainant appeared disorientated in this period of time, confused and somewhat nervous, and yet they managed to make her feel comfortable and reassured.[16] She was described as wearing a pair of jeans, a blouse and top of some sort, the clothing being somewhat unkempt and disorganised. The clothing was examined later and photographed (Exhibit P10). Ms Hutton said this in her evidence:[17]
… but her clothes were – she was not dressed properly. Her clothes looked like they had been stretched or pulled or something and her buttons on her jeans were undone and I did those up and tried to sort of just cover her up a bit more.
[16] T112.33-113.3
[17] T113.12-.16
Both women described her as appearing to be affected by alcohol, judging by the moderate smell of alcohol on her breath. As she proved unable to remember her name, Ms Hutton located a bag or purse, finding in it a contact telephone number for the complainant’s mother, whom she proceeded to ring. She requested that she collect her daughter.
Whilst waiting for her to arrive, there was some conversation between them. In this period the complainant told them she had been out on the town with some friends who had left her, and she could not remember how she had gotten to Anzac Highway.[18] For her part the complainant could not remember having stated these things, still less having done them.[19] The complainant’s mother drove to Rosewater, leaving most probably shortly before or around midnight. Later she took her daughter to the Queen Elizabeth Hospital where she was admitted and remained as an inpatient for several days.
[18] T117.18-.38, agreed fact no. 5
[19] T56.7-.38
The expert evidence for the prosecution
It was whilst in the Queen Elizabeth hospital that she was examined by now retired Dr Creaser. This occurred between 11.30 am and 2.00 pm the following Wednesday, 24 September 1997. Dr Creaser noted numerous fresh injuries caused within 24 hours, about the front and back of the body, detailed in her notes Exhibit P7.[20] These consisted of a series of grazes, some of them covering relatively large areas, swelling, scratches, bruises and the like.
[20] T149.5-.10
It is evident that some, but not all of these, were interrelated and more likely than not, sustained in the one event. According to Dr Creaser the nature of the injuries were suggestive of bare skin coming into direct contact with a rough surface on at least two occasions. She was unable to see a mechanism by which injuries to both the back and the front of the body, could have been sustained in the one incident. This makes common sense. Her evidence as to the fresh nature of injuries, is wholly consistent with that of Ms Hutton.[21]
[21] T154.25-156.5
A vaginal examination revealed no obvious or visible injuries, although the complainant mentioned tenderness around the labia minora. Dr Creaser noted quite profuse white fluid in the vicinity of the posterior fouzchette, coming from the vaginal canal. She took low and high vaginal swabs and smears. There were in addition two external bruise injuries caused by blunt trauma proximate to the anal opening, and the anal canal itself was visibly bruised to the internal anal sphincter.[22]
[22] Refer Exhibit P8, and T154.25-.33
The forensic scientist and toxicologist Mr Felgate was also called by the prosecution. It was proved that a blood sample taken by Dr Creaser a few minutes before 3.00 pm on the 24th, was found to contain an alcohol concentration of .15 per cent.[23] Based on this fact, he was asked to complete a BAC calculation (blood alcohol calculation), designed to estimate the probable and minimal levels of alcohol in the blood stream of the complainant at 4.30 pm and 10.30 pm the previous day, 23 September, 1997. These times correspond approximately with the period during which the complainant is said to have lost her memory.
[23] Agreed fact no 4
His conclusions may be tabulated in this way:
Time Probable Minimum
4.30pm 0.26 per cent 0.11 per cent
[0.17 per cent] [0.08 per cent]
10.30pm 0.27 per cent 0.17 per cent
The bracketed figures are based on the assumption the drinking commenced at around lunchtime on the 23rd and the complainant drank the Jim Beams she claimed to have.
His considered opinion was the higher level of .26 per cent would require the consumption of around 18 standard drinks, whereas the lower level of 0.11 per cent would need around 12.[24] For a woman of the complainant’s relatively slight stature, his estimate was that she would have consumed “about 18 standards drinks to achieve [the] blood alcohol level of .15”,[25] and about 14 “in the missing timeframe”.[26]
[24] T182.24-.27
[25] T185.15-.16
[26] T185.17-.23
Mr Felgate gave extensive evidence as to the basis upon which these calculations and estimates were made. Since they are not in dispute, it is not necessary to discuss the details any further. It transpires the complainant told a Doctor at the Queen Elizabeth Hospital she had been a heroin user and that she had used Rohypnol during the previous two weeks.[27] She denied however in her evidence using that drug in the two weeks immediately preceding these events.[28] Regrettably her blood system was not tested for the presence of drugs, despite what she said at the hospital, so there is no concrete evidence one way or the other on this topic.
[27] Agreed fact no 6
[28] T48.25-50.11
It can be seen from this narrative of the undisputed facts in the case, that there is a gap of time of roughly five to six hours, more or less corresponding with the two times Mr Felgate was asked to base his assumptions on. The complainant’s movements and her activities within this period remain a total mystery. All we have are the few mutterings about her whereabouts to Belinda and her mother in the unit at Atlantic Towers to which she did not ascribe, together with the fact – as will appear later - that she must have had a sexual encounter with Mr Ozgur at some time in the same period.
Her claim that she felt as if she was going to pass out and the almost instantaneous loss of memory cannot be explained. On the basis of Mr Felgate’s evidence it is more likely to be alcohol induced, but that is as far as the evidence permits matters to be taken on that subject. No evidence was led explaining the mechanism for such a loss of memory or its retrograde character. For the moment what is clear is that she must have consumed considerably more alcohol than she remembered, the bulk of it most probably after consuming the yiros on Jetty Road.
Buccal swabs obtained from the accused were submitted to the Forensic Science Centre for examination. Comparisons between his DNA profile were compared with DNA found on the vaginal and anal swabs taken by Dr Creaser, and from the underpants, jeans, a bra-top and a sock. These and the matters following in this paragraph were the subject of agreed facts, which may be conveniently tabulated in this way:
Underpants
Inner surface, right hip - semen containing DNA of Mr Ozgur, probability ratio greater than 1 billion:1
Inner surface, right front - semen containing DNA of Mr Ozgur, probability ratio greater than 1 billion:1
Inner surface, rear - semen containing DNA, Mr Ozgur not excluded as source, likelihood ratio of 133 million:1
Jeans
Inner surface – crotch – - semen containing DNA of Mr Ozgur likelihood ratio 77 million:1
Outer surface – front right pocket –
Outer surface – front right leg –
Between rear pockets –
Rear left leg - semen containing DNA contributed by at least two individuals, Mr Ozgur not excluded as one of them (the source of the DNA from the unknown third person was unlikely to be from semen, but semen cannot be excluded as the source)
Other
Bra-Top – front tie - semen stain – DNA profile not obtained
Sock, outer surface - semen stain, Mr Ozgur not excluded as source of DNA, probability ratio 105 million:1
High vaginal, labial
& rectal swabs - semen – no DNA analysis performed
Perianal swab - no semen detected
Bloodstains located on some of the clothing matched the DNA profile of the complainant, but otherwise no DNA was detected in any other sample or stain that could have been contributed by anyone else.
There is one further preliminary topic to be discussed. Following her discharge from hospital, the complainant compiled what was described as an “identikit”, eventually delivered to Detective Hill, then officer in charge of the investigation, by not later than 2 October 1997.[29] This exhibits facial characteristics consistent with the appearance of the accused at the time. The “identikit” was then published as a media release through the Police Media Liaison Officer, to the public at large.[30] As a consequence information was received indicating the “identikit” may have been the accused. Of course this is hearsay material and is of no probative value at all in the case against the accused. It is admissible to show the course of the investigation and the chain of “identification” procedures, nothing more.
[29] Exhibit P3
[30] T123.5-.21
As a consequence, Detective Hill assembled a photographic identification folder containing 12 photographs, including one of the accused. His photograph was the same as, or if not for practical purposes identical to, that tendered as Exhibit P6. This was taken on 17 September 1997, that is to say six days before the subject events. Mr Ozgur admitted during his evidence this was an accurate depiction of his appearance at both times.[31]
[31] T229.4-.37
Unfortunately the original folder containing the 12 photographs was lost or misplaced. The original was shown to the complainant on 24 October 1997 when the following exchange occurred with Hill:[32]
I said '… I want to show you a group of 12 photographs in relation to a rape that you reported took place on Tuesday, 23 September 1997 at Glenelg. The person involved in the offence may or may not be included in these photographs. I want you to look at the photographs and if you recognise the person involved in the offence, I want you to indicate that photograph to me. The photographs are numbered 1 to 12'. After looking at the photographs she said 'None of them look like him. He was either older or younger than him. He has the same hair as him' and she indicated No.7. ‘That is No.7 you said has the same hair' and she said 'Yes, that's about it'.
What inferences may be drawn from these facts, either taken alone or in combination, is to be considered later.
[32] T124.35-125.9
The charge
The accused is charged with having at Glenelg on 23 September 1997, sexual intercourse with the complainant without her consent, by inserting his penis into her vagina, contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA).[33] Although there was evidence highly suggestive of anal penetration, this is not charged by the prosecution as a distinct offence, although it may be relevant in other ways, particularly as to the issue of consent. Section 48 of the CLCA as it stood in 1997, read:
48 A person who has sexual intercourse with another person without the consent of that other person—
(a) knowing that that other person does not consent to sexual intercourse with him; or
(b) being recklessly indifferent as to whether that other person consents to sexual intercourse with him,
shall (whether or not physical resistance is offered by that other person) be guilty of rape and liable to be imprisoned for life.
[33] Hereafter the CLCA
Neither counsel contended the definition of “reckless indifference” now contained in s 47 of the CLCA, or the expanded definition of “consent” in s 46, applied to this charge. The issues of consent and reckless indifference then stand to be determined according to common law principle. Reckless indifference was defined in R v Wozniak[34] as requiring an accused to realise the complainant might not be consenting, but nevertheless proceeds to have intercourse whether she was consenting or not. An honest belief held by an accused person of the fact of consent, defeats the necessary mental element: R v Wozniak,[35] DPP v Morgan.[36]
[34] (1997) 16 SASR 67 at 70, see also R v Daly [1968] VR 257 at 258, R v Evans (1987) 48 SASR 35 at 41
[35] As above
[36] [1976] AC 182
When it comes to consent at common law, consent must be one freely and voluntarily given.[37] Of course once the issue of consent is raised, as it is in this case, the onus lies on the prosecution to prove beyond reasonable doubt there was no consent in the requisite sense: King v The Queen.[38] The degree of intoxication or the effect of drugs on a complainant at the relevant time of penetration, are of course relevant matters, having a bearing on the possibility of mistake as to consent by an accused person, as well as questions as to the reliability of the complainants evidence: R v Wilson,[39] and R v Baltensperger.[40]
[37] Case stated by DPP (No 1 of 1993) 59 SASR 214 at 220
[38] (2003) 215 CLR 150 at [52]
[39] (1986) 42 SASR 203 at 208
[40] (2004) 90 SASR 129 at [45]
In order to negate consent on account of intoxication, it is necessary for the prosecution to demonstrate the mind of the complainant was so influenced by drink or drugs (or both), that she lacked the understanding necessary to enable a conscious and free choice to be made by her: R v Morgan,[41] R v Blayney.[42] As was stated in R v Francis:[43]
(T)he critical question [is] whether the complainant had, by reason of … a drunken stupor, been rendered incapable of deciding whether to consent or not.
[41] [1970] VR 337 at 341
[42] (2003) 87 SASR 354 at [23-35], [75]
[43] [1993] 2 Qd R 300 at 305
A similar proposition was posed in R v Lang,[44] namely was the ‘mind … so influenced by drink that she lacked the understanding of her situation necessary to enable her to make a choice ...’. There is in all probability no practical difference between these statements of principle and s 46 of the CLCA;
(2) For the purposes of this Division, a person consents to sexual activity if the person freely and voluntarily agrees to the sexual activity.
(3) Without limiting subsection (2), a person is taken not to freely and voluntarily agree to sexual activity if—
…
(d)the activity occurs while the person is intoxicated (whether by alcohol or any other substance or combination of substances) to the point of being incapable of freely and voluntarily agreeing to the activity;
[44] (1975) 62 Cr App R 50 at 52
Finally in point of principle, intercourse is complete upon the slightest penetration of the vagina by the accused’s penis: Papadimitropoulos v The Queen.[45]There is no issue as to penetration in this instance, in light of the DNA evidence.
[45] (1957) 98 CLR 249 at 255
Police “identification” evidence
As mentioned earlier, the “identikit” produced by the complainant is similar to the accused. In addition it bears an uncanny resemblance to the photograph of the accused taken proximate to the charged events, Exhibit P6. These coincidences however furnish no conclusive identification evidence of the accused: Pitkin v The Queen.[46] Both items are admissible as evidence of general appearance, sharing similar characteristics of the accused, including age, race, stature, and facial appearance: Festa v The Queen.[47]
[46] (1995) 69 ALJR 612
[47] (2001) 208 CLR 593 at [56-57]
The photo board procedure was employed, no doubt because it was not possible to arrange an identification parade, as the accused could not be traced at that time. This was in any case probably still in the investigative stage of police enquiries. It was not until June 2008 that his DNA profile was entered on the DNA data base, and the investigation was reinstated. Detective Brevet Sergeant Hill had followed certain lines of enquiry in 1997, including numerous motor vehicle searches. He was unable to identify any vehicle linked to the accused. Moreover he made enquiries at various addresses associated with the accused in South Australia and all these proved negative.
The evidence of the circumstances in which the accused’s photograph was “indicated” by the complainant in October 1997, is also of very limited value, both in terms and in point of principle. In terms it was heavily qualified simply as having “the same hair as him”. In point of principle there may well be a risk of subconscious “displacement” originating from the identikit. Safety procedures inherent in identification parades were also lacking, and further there are no means of assessing the adequacy of the comparison photographs.
Based on this material considered alone, it would not be possible to make a finding beyond reasonable doubt (and it would be dangerous besides) that it was the accused who approached the complainant in the hotel or again outside on Jetty Road. On the other hand when coupled with the known fact that the accused undoubtedly had sexual intercourse with the complainant later that evening, the “identification” evidence might be seen in a different light. Of course the stated probability ratios in the DNA samples do not automatically involve a mechanical application of the probabilities, and they are not capable of being reduced to a mathematical compilation, but the combination of several samples connecting the accused are surely overwhelming.[48] This is conclusive proof of penetration by the accused of the vagina of the complainant, to the point of ejaculation. Mr Stokes his counsel, did not contend otherwise.
[48] R v GK (2001) 53 NSWLR 317 at [59] and R v Galli (2001) 127 A Crim R 493 at [55-56]
This finding inevitably means that the accused was in contact with the complainant for some time in the unaccounted hours. It would be an extraordinary coincidence then for the complainant to have just happened to produce an “identikit” bearing more than a reasonable resemblance to him, and having just so happened to “indicate” his photograph, even if qualified in the way mentioned. The united force of all this evidence leads to the inevitable conclusion beyond any reasonable doubt, that it was the accused who approached her on both the occasions mentioned above during the late afternoon of 23 September 1997.
This conclusion is of no particular significance in proving any one element of the charge. It might however bear on the likely consent or otherwise by the complainant having intercourse with the accused, since she showed no interest in him, or in having sexual intercourse in general. It is also capable of supporting a conclusion that he held an interest in her, particularly given the defence case that he regularly “picked up” women for casual sex. In the end, the central issues are whether intercourse occurred without the consent of the complainant and what the accused’s state of mind was at the time; did he believe he had the consent of the complainant or was he recklessly indifferent thereto?
The case for the defence
Mr Ozgur elected to give evidence on his own behalf and called two of his mates to support his case. The general effect of the evidence from all three was very much the same. In 1997 Mr Ozgur resided in Sydney. He had driven to Adelaide for an holiday of around one and a half months, in his much prized HSV club sport. Whilst in Adelaide he stayed for the most part with one of his witnesses, whom he met at West Beach on the second day of his arrival.
They went “clubbing” as often as they could and they constantly drove around looking for “one-night stands”, his vehicle being the focal point of attraction. At such activities they smugly bragged of great success. The accused was a self described “party animal”, and according to his friends, enjoyed the “gift of the gab’. This despicable evidence was given with breathtaking nonchalance and with such staggering insouciance, that beggars belief. It demonstrates, if nothing else, that Mr Ozgur was the very type of person to approach the complaint at the hotel in just the very way, and for the purpose she described, and what’s more, was the very type of man to try his luck with her again outside.
The accused denied any recollection of visiting the Hotel concerned or of meeting the complainant, and consequently of any encounter with her of any kind.[49] Indeed he professed to retain no recollection of any particular sexual encounter of which, he remains to this day surprisingly indifferent, even though he said he hardly drank alcohol and never took drugs. It is difficult to accept that he could not recall any such encounter. He also denied any recollection of the Jetty Road or Glenelg area, which is even more surprising given the amount of cruising he and his acquaintances did along the coast and the rather unique character of the area.
[49] T232.13-233.21
Whatever one thinks of such mores, and whatever one makes of the worth and relevance of this evidence, it affords no affirmative evidence of the charge other than on the quite limited basis just mentioned. Nor does it relieve the prosecution of the burden of proof with respect to each element of the charge. Except for this limited purpose, I place no store on the evidence of the accused and his witnesses and therefore otherwise put it to one side. The question nevertheless remains, has the prosecution proven the guilt of Mr Ozgur beyond reasonable doubt: R v Anderson.[50]
[50] (2001) 127 A Crim R 116 at [26]
Analysis of the evidence
An inescapable feature of this case is that the complainant is unable to account at all for the period of up to six hours between approximately 4:30pm and 10:30pm, of which she professes no memory. The court is placed at a considerable disadvantage as to this, because (as mentioned earlier), no expert evidence was adduced to explain the mechanisms that might explain this loss of memory and particularly its retrograde features. It does not fit with the evidence of the complainant as to the number of drinks she had. The best that can be said is that the loss of memory may be the by-product of the large quantity of alcohol she must have taken later that night. The loss of memory is not explicable on the basis of her evidence alone.
It is clear that in this period she must have consumed a considerable quantity of alcohol, on the evidence of Mr Felgate, probably at least fourteen standard drinks. Given what she told the witnesses in the Atlantic Towers, she may well have gone somewhere into the City with friends, however the evidence as to this is too scant to permit of any concrete finding. On the above findings, she must have spoken to Mr Ozgur in Jetty Road and there is no other reasonable view of the facts other than that she must have left that area voluntarily with him at that time. It is highly unlikely that they departed company and later coincidentally had a chance meeting. Another hypothesis is that they parted company then and arranged to meet again later. Either way it would have been consensual on her part. What transpired thereafter, remains a complete mystery.
The complainant was then 21 years old (she was 34 at the time of giving evidence) and expressed in a sober state, both in the hotel or later outside, no interest that afternoon in the accused in particular, or sex in general. In contrast he was aged 29 and was a big powerful man. These considerations suggest she did not desire sex with him in the slightest. This conclusion is reinforced by the fact that she actively discouraged him. What may have been the situation in a disinhibited state, is another question.
The evidence of her condition at the point her memory returns on Anzac Highway, and the rather dishevelled and unfastened state of her clothing, together with the extent and nature of her injuries, combine to the point that what happened to her proximate to that later time, was hardly likely to be consensual. The upper frontal injuries, particularly those around the face are wholly consistent with callous ejectment from a car, or falling on the pavement, so they are put to one side for the purposes of this analysis.
The injuries to the back and the lower legs are not so readily explained, especially since they must have been caused by at least two separate incidents, at a time when she was almost certainly unclad. These are strongly suggestive of vigorous and naked intercourse on a rough surface, and given their extent and the pain they would have caused, it is most unlikely to have been a consensual situation. The evidence of extreme tenderness to the anus and the two marks caused by blunt objects proximate thereto, are highly unlikely to be the result of consensual acts, not to mention the sheer number of injuries and at least four reasonably extensive areas of petechial bruising.
At this point in the analysis the court is placed at a second disadvantage for quite another reason. There is no consent if the degree of intoxication deprives the mind of the capacity to give it. The evidence of Mr Felgate leads to the conclusion that the blood alcohol level of the complainant was .26 per cent at most and as little as .11 per cent. Both counsel pitched their submissions on the most likely level being about .17 per cent. Whatever the level, there is no evidence before the court explaining what alcohol at these levels in the body, do to the mind and its capacity to enable the complainant to consent or not.
There is simply no basis on the evidence adduced in this case, for the conclusion that so much alcohol was consumed so as to deprive the complainant of the capacity to furnish her consent. On the contrary, levels of this order go no further than to suggest disinhibition, “drunken consent is still consent”: R v Sheehan & Moore.[51]
[51] (1975) 60 Cr App R 308 at 312
Situations such as the present, were referred to R v Malone,[52] a decision approved in R v Bree.[53] In the latter the court added the following with reference to an unreported decision of Dougal:[54]
33. Some of the hugely critical discussion arising after Dougal missed the essential point. Neither counsel for the Crown, nor for that matter the judge, was saying or coming anywhere near saying, either that a complainant who through drink is incapable of consenting to intercourse must nevertheless be deemed to have consented to it, or that a man is at liberty to have sexual intercourse with a woman who happens to be drunk, on the basis that her drunkenness deprives her of her right to choose whether to have intercourse or not. Such ideas are wrong in law, and indeed, offensive. All that was being said in Dougal was that when someone who has had a lot to drink is in fact consenting to intercourse, then that is what she is doing, consenting: equally, if after taking drink, she is not consenting, then by definition intercourse is taking place without her consent. This is unexceptionable.
Although these remarks were based on a statutory provision, there is no material difference between this formulation and the common law, so far as it goes.
[52] [1998] 2 Cr App R 447
[53] [2007] 2 Cr App R 158 at [27]
[54] R v Dougal, unreported, November 2005, Swansea Crown Court
At the end of the day the question is whether in light of the whole of the evidence, an inference of guilt is established beyond reasonable doubt: Chamberlain v The Queen (No 2),[55] and Shepherd v The Queen.[56] Moreover, considered as a whole, guilt must not only be a rational inference, but should be the only rational inference that could be drawn from all the circumstances.[57]
[55] (1984) 153 CLR 521 at 535
[56] (1990) 170 CLR 573 at 576
[57] Shepherd above at 578
Conclusion and verdict
The above analysis demonstrates that if the injuries seen on the complainant were caused, or were present before the accused had intercourse with her, or were caused when intercourse occurred, there would be no reasonable doubt that it would have been without her consent. They are too extensive and would have been too painful and too discomforting, to leave any reasonable doubt that she was consenting to vigorous intercourse. There is insufficient evidence that her will was overborne by the influence of too much alcohol.
As there is no evidence as to when the injuries were inflicted, it is impossible to eliminate a reasonable possibility consistent with innocence, namely that the accused had consensual sexual intercourse before those injuries were sustained. For precisely the same fundamental reason, the prosecution is unable to prove the accused had intercourse knowing it was without consent, or was recklessly indifferent thereto. That being the position, the court has no alternative other than to return a verdict of not guilty.
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