R v R, R - [2007] SASC 71

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v R, R & ANOR
Criminal Trial by Judge Alone
[2007] SASC 71
Reasons for the Verdict of The Honourable Justice Layton
2 March 2007
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - TRIAL HAD BEFORE JUDGE WITHOUT JURY
ABORIGINALS - CRIMES BY ABORIGINALS - EVIDENCE
Trial by judge alone - accused both charged with raping the complainant - R charged with anal rape - L charged with vaginal rape - accused and complainant all Aboriginal people living in the AP Lands - consideration of issues of identification - complainant knew both accused - prosecution case relied almost entirely on evidence of the complainant - whether complainant's evidence was inconsistent with earlier statements - whether complainant's evidence unreliable in particular due to a mental condition - whether prosecution's failure to call certain evidence deprived the accused of evidence which was potentially exculpatory - Held: R and L both guilty of the charge of rape.
Criminal Law Consolidation Act 1935 (SA) s 48, referred to.

R v R, R & ANOR
[2007] SASC 71
Criminal
LAYTON J:
Introduction

The accused R, R and R, LJ, whom I shall simply call “R” and “L”, are both charged with raping a woman whom I shall call “C”, between 17 February 2004 and 18 February 2005 at Amata. The particulars of the offence are that R is charged with having anal sexual intercourse with C without her consent. L is charged with having vaginal sexual intercourse with C without her consent.
Both accused elected for trial by judge alone.
Although the case, in terms of days of trial, was relatively short, it took place over a protracted period of time due to a number of physical difficulties, including availability of counsel, availability of witnesses, the releasing of exhibits for the purposes of forensic examination and problems with finding suitable interpreters. The trial therefore commenced on 19 October 2006 and was completed with addresses on 18 January 2007. The trial occupied nine days of hearing.
The prosecution called evidence from the complainant; Constable Macpherson; Constable Dooley-McDonnell; Senior Constable Karen Brumpton; Detective Brevet Sergeant Cunningham; a forensic scientist Mr Silenieks; and a general practitioner Dr Bagar. There were a number of exhibits including photographs, clothing and a video. In addition, there was a Statement of Agreed Facts as well as statements tendered by consent from a forensic scientist Suzanne Whitehall; a nurse Stewart Roper and a Programming Manager of a television broadcasting station, Rondelle Seden. The defendants called a scientist, Mr Dale Carroll, but did not give evidence themselves.
Overview of the Crown case
The Crown case is essentially simple. In summary the case is that on or about 17 February 2005 C was home alone in her house at Amata in the AP Lands. She had watched television and then went to bed. She was woken by noises and woken again when a person, who said his name was “L”, came through the window of her bedroom. Shortly after, she saw his brother, R, come through the door of her bedroom. She was still in bed. Both of them kicked her and her clothing was torn off. First, L had penile/vaginal intercourse with her without her consent, and then R had penile/anal intercourse with her without her consent. They then left. This date was referred to throughout the trial as the “night when the bad things happened”. For convenience I will refer to that date as “that night”.
C had known both of the accused, particularly R, since she was a young child. Both accused had been at school with C at Amata. R was about the same age as C, had been in the same class as her, and had been a friend. L, who was younger, was in a different class and she did not know him as well as R.
The following morning after that night (or possibly the second morning, as it emerged later in the case), C reported the assault to a nurse at the local clinic. Later that afternoon she gave an initial short statement to Constable Macpherson. Then in the early evening she was taken to Alice Springs by plane, and was examined by Dr Bagar who took a short history, which was also recorded in notes taken by Constable Dooley-McDonnell. Neither of these statements were taken with the benefit of an Aboriginal interpreter. Twelve months after the alleged rapes, over 3 days from 27 February 2006 to 1 March 2006, Senior Constable Karen Brumpton took a detailed statement from C with the assistance of a female Aboriginal interpreter. This statement was partly recorded and transcribed.
The primary issue in the case concerns identity and whether the prosecution has proved beyond reasonable doubt that the accused raped C. In addition, this issue is linked to whether the prosecution has proved that C was raped by any persons and in particular whether she was anally raped as she contended.
The prosecution case relied almost entirely on the evidence of C as there was no corroboration.
Trial process
As previously indicated, the trial took nine days but was spread over several months. This was most unfortunate for both C and the accused persons. C, R and L are all young Pitjantjatjara Aboriginal people who live on the AP Lands. The trial was commenced in Port Augusta with C giving her evidence by closed-circuit television using a female Aboriginal interpreter. The accused had their evidence interpreted by a male Aboriginal interpreter. At the request of the accused, and also in the interest of C, the court was closed as R is a traditional initiated Aboriginal male and it was shameful for sexual matters to be spoken of in the presence of women (acknowledging the need to exempt the necessary attendance of counsel and court staff). It was necessary for C to give evidence over three non-consecutive days. She commenced in Port Augusta on 19 October 2006 and 20 October 2006. The case was then adjourned to Adelaide when cross-examination of C was resumed on 2 November 2006.
It was necessary to take frequent breaks as C appeared to tire easily and lose concentration when she was giving her evidence. Counsel for the accused persons, who were both male lawyers, were commendably accommodating of these requirements for breaks.
There were considerable problems in obtaining suitable Aboriginal male interpreters for the accused. On one occasion it was necessary for the whole of the evidence on one day to be read out again to the accused, as it was noted that the male interpreter was not translating both the questions and the answers.
Legal considerations and general directions
Whilst it is not necessary in a case of trial by judge alone for the Court to set out in the verdict the obvious directions, of which any trial judge is bound to be aware, nonetheless I consider it important for me to do so in this case.
I remind myself that an accused person comes before this Court with the presumption of innocence in their favour. The law regards a person as innocent unless their guilt on a particular charge has been proved beyond reasonable doubt. The burden of proving a particular charge beyond reasonable doubt lies wholly upon the prosecution. Neither accused in this case has to prove anything and neither accused person is required to give any evidence themselves. The accused are entitled to rely on any weaknesses in the prosecution case. It is not enough for the prosecution to show a mere suspicion of guilt or even to show that the accused are probably guilty. Nothing short of proof beyond reasonable doubt will suffice.
The requirement of proof beyond reasonable doubt extends to each and every element of each offence in respect of each accused. I cannot convict either accused of the offence for which they are individually charged if I have a reasonable doubt as to any element of the charge against him. If I am left with a reasonable doubt about the guilt of either of the accused, I must give that accused the benefit of that doubt and find him not guilty.
In this case there are two separate charges tried together on the one information in respect of each accused person. It is necessary for me to take special care to ensure that the method by which the guilt of an accused on any one count may be established, is by considering only that evidence which has been produced in respect of that particular offence against that particular accused.
In this case identity of each of the accused is the major issue. It is important in this case that I take account of the fact that there can often be problems with evidence of identification and that care should be taken in assessing the reliability of identification. I recognise that honest witnesses can be mistaken in making an identification and that a mistaken witness can be certain and believe in the identification that they have given. In this case it is necessary for me to bear in mind a number of factors which may affect C's identification of each of the accused. I will consider this aspect more specifically in the course of discussing the evidence.
I must also closely scrutinise the evidence of C because the case against the accused relies solely on her evidence, which is not corroborated. Again, this is a matter that I will address in more detail in the course of these reasons for verdict.
Background evidence – C
C was 21 years of age at the time of giving her evidence. She said that on that night she was living in her grandmother’s house at Amata. She was still at school in Year 11 at Amata although she was 19 years of age. Her sister and a person whom she called her “young father” who was in fact her grandmother’s son, namely her uncle, usually lived at her grandmother’s house.
The house
The evidence given by C about the house was assisted by photographic and video evidence as well as a drawing by C. Without these aids it would have been very difficult to understand the layout of the house as there was confusion about the rooms of which C spoke and the doors to those rooms.
The house was simple, made of galvanised iron with windows and doors and a veranda at the front. The front door led in to a large room in which her grandmother and sometimes others slept, including C from time to time.
Photographs of the house were tendered and these were derived from stills taken from a video which was tendered and marked Exhibit P10. The first door on the left, viewed from the front of the house, was C’s bedroom (Exhibit P1 Photograph 10). There were two windows in her room (Exhibit P1 Photograph 8). The window on the left in Photograph 8 is the window identified by her as being the one through which she said L entered on the evening of the offence. A close-up of this window is shown in Exhibit P1 Photograph 3, being the first window in the centre of the photograph, closest to the camera. A further photograph of that window is shown in Exhibit P1 Photograph 5, in which Constable Macpherson demonstrates how the screen on the window was able to be lifted.
In addition, C drew a plan of the house (Exhibit P2). This drawing shows the layout including the back of the house which has an area marked “kitchen” and two other areas marked “toilet” and “laundry”. The back door is also shown near the toilet area.
Knowledge of English
C gave evidence that she can read and write in her own language but she can only read or write “a little bit” in English (T58). She usually spoke Pitjantjatjara (T58).Her knowledge of English was also the subject of cross-examination. She said that her writing was better than her reading (T90).
In cross-examination her attention was directed to a hand written statement taken by Constable MacPherson which was signed at the bottom of each page with the name "C" (Exhibit D 26).C indicated that the name on the bottom of each page was in her writing. She was asked to look at the two pages of the statement. After a while she was asked whether she had read both pages. C responded, "only a little bit." (T157) I noted that this answer was consistent with the way in which she appeared on the video to look at the two pages. She did not give the appearance of reading the document. She was then asked whether she could read a little bit of what was on both pages (T157) and she responded, "I don't understand it all.” She indicated that she could read "only a little bit” of the first line of the statement (T158).
I accept that she was truthful when she gave this evidence about her limitations in reading and understanding English. I will give further consideration to this when discussing her statements given to police officers.
Knowledge of the accused
C said that she had known R since she was little and that they were at school together. She said they were about the same age and he was one of her friends when they were younger (T60). She was also asked whether she knew L, his brother. Initially she said, “No” (T60) but later indicated that she knew L “a little bit.” (T61) She was asked whom she knew better, L or R, and she answered, “Both of them.” (T61) In cross-examination she was asked whether L had been to the same school, she initially answered, “No”, but on further questioning indicated that L had been at the same school at the same time as her but was in another classroom (T90).She also said he had only gone to the same school “a little while.”
Counsel for L was critical of this apparent inconsistency in her evidence. I have taken the criticism into account and my impression was that her initial answer of “No” appeared to be in a context in which she interpreted the question as asking whether she knew L well. It had followed earlier questions about her knowledge of R. I noticed a similar approach to answering when she was examined and cross-examined about whether she knew the months of the year. Initially she responded either “No” or “Don’t know” but then later indicated “a little bit.” (T93-94) A similar response was given when asked whether she knew a police lady by the name of “Karen”, being Senior Constable Karen Brumpton, who had not only taken a statement from her over a period of three days a year after the incident, but who was present with her at Port Augusta when she initially gave her evidence. On first questioning she indicated that “Maybe I seen her” and then later agreed that she did know her (T171). I do not consider this to be an inconsistency but rather a matter of her understanding and interpretation of the question and the manner in which she gave an answer to that question. In each of these examples there is no doubt that she knew, to some degree, each of the persons and also the months of the year, but she did not know them well when compared with other things she knew very well.
In short, I am satisfied that C had known both L and R well. She had known them since she was very young, they had all lived together at Amata for various periods of time and had gone to the same school. Evidence was given by Detective Brevet Sergeant Cunningham that Amata is a very small community of 300 people which includes both indigenous and non-indigenous people. This evidence is of some significance when I consider the issue of C’s identification of accused on that night.
C – Manner of giving evidence
During the course of giving her evidence, C mostly had her head and eyes downwards, looking towards her lap, occasionally glancing sideways at the interpreter. She was quietly spoken, minimalist with words and sometimes slow in answering questions. At times I considered that even though the interpretation appeared to be excellent, there was nonetheless some uncertainty in C’s comprehension of the questions being asked of her. I also noted that she appeared to sometimes use the plural pronoun “they” or “their” or the plural “boys” or “men” when giving her evidence or giving answers to questions regarding that night, when sometimes she was referring to only one of the persons. The plural was therefore on occasions interchangeable and this was often clarified by later questioning or, alternatively, during cross-examination. I note that judicial directions are sometimes given to juries in other Australian States when they are considering evidence given by Aboriginal witnesses, particularly regarding the inter-changeable use of pronouns by some Aboriginal people.
I also noted that C appeared to give evidence more easily when she was not dealing with the sexual encounter, which is understandable. At one stage she specifically mentioned during cross-examination that she felt embarrassed about answering questions (T181).Counsel for the accused had submitted in relation to their own clients that traditional Aboriginal men felt shame when speaking about or hearing sexual matters discussed in the presence of women. C in giving her evidence no doubt felt similar shame, particularly knowing her evidence was being heard by the two accused males and, of course, in being cross-examined by two white males. I acknowledge at this point that both counsel for the accused showed considerable sensitivity when questioning C and their manner was at all times polite and respectful. Nonetheless the situation appeared disturbing to C. This should be taken into account when assessing her evidence, and when deciding whether or not I am satisfied beyond reasonable doubt that the prosecution has proved the case against each of the two accused.
When dealing with C’s manner of giving evidence, I also have regard to commonly understood features of traditional Aboriginal persons giving evidence in court. The whole court environment, even if giving evidence by video, is very artificial and stressful. The language inevitably used is more complex than they are used to. They also, as a general rule, tend to agree with or answer “yes” to questions which they may not necessarily understand or do not wish to appear contradict. This makes the assessment of Aboriginal witnesses a particularly vexed issue and indeed that was true in this case.
Bearing in mind these difficulties in assessing credibility and in light of the manner in which C gave her evidence, I have no hesitation in accepting C as a person who gave her evidence truthfully and honestly. Instead the concerns I have, which I will deal with later in the course of these reasons, relate to the potential unreliability of C’s evidence, due to various matters as identified by the defence. I will return to this topic throughout these reasons.
Mental health of C
Before going into detail as to the facts of the case, I will deal with an important and potentially overriding issue raised by the defence. Counsel for L submitted that C suffered from schizophrenia. Rather than make findings of fact about the events on that night which would be conditional upon consideration of the submissions regarding schizophrenia, it is preferable to deal with this aspect first.
There was no evidence before me of any specific diagnosis made of her, save for reference made to this condition by Dr Bagar to which I will refer.
C was asked whether she knew what schizophrenia meant and she indicated she did not (T96).C was cross-examined about her mental health during which she gave the following evidence (T91-92):
QI want to ask you about your health. You have to go to the clinic regularly to have injections in your arm, don’t you.
AYes.
QAnd you’ve been needing those injections for a number of years now; is that right.
AYes.
QAnd sometimes you don’t go to the clinic to get your injections when you’re supposed to; is that right.
AYes.
…
QI’ll just ask you again. You have to have those injections because if you don’t, you hear things that aren’t there; is that right.
ASometimes I have tablet form the sister.
QI just want to talk about the injections. Isn’t it the case that you have to have the injections because if you don’t, you hear things that aren’t there; is that right.
AYes.
QAnd you also have to have the injection because sometimes you see things that aren’t there; is that right.
AYes.
QYou told us yesterday that on the night this bad thing happened, you heard some noise outside; is that right.
AYes.
QAnd that you told us that you heard some stones being thrown on the roof; is that right.
AYes.
QAnd that it was a windy night.
AYes.
QAnd you were getting a bit frightened; is that right.
AYes.
QIs this one of those times that you were hearing things that weren’t there.
AYes.
C was asked questions about what she told her local doctor, and in cross‑examination gave the following evidence (T94-95):
QDo you remember seeing the doctor at Amata, the doctor that talks to you about your illness, a few months before this bad thing. Do you remember seeing the doctor a few months before the bad thing.
AYes.
QDo you remember telling the doctor that you were hearing occasional voices at night. Do you remember that.
AYes.
QYou remember when this bad thing happened to you and you went on the aeroplane to Alice Springs, you remember that time.
AYes.
QYou had had an injection at the clinic a couple of weeks before. Do you remember that, getting your injection.
AYes.
QYou hadn’t been to the clinic for your injection for many months before that, had you.
AI might have missed one.
QYou missed a lot more than one, didn’t you.
AMaybe.
QIf you don’t get your injections, that’s when you hear things that aren’t there and see things that aren’t there; isn’t that right.
AYes.
QThis bad thing that you told us about yesterday, is that something that you imagined.
AIt’s the truth.
Also to be taken into account is a statement of Stewart Roper tendered by consent, (Exhibit P20) who was a nurse working at the Amata Medical Clinic and who had access to the clinical case notes. Those case notes indicated that:
[C] was prescribed two (2) medications prior to 18 February 2005. They were Metformin, at one (1) gram twice a day. This was administered orally and for diabetes. The only other medication [C] was prescribed at the clinic was Flu Penthixol, ten (10) milligrams, given every four (4) weeks via an intra muscular injection.
[C] had this injection on 31^st January 2005, administered by Registered Nurse Sally McGrath at the Amata Medical Clinic. She also had the same injection on 20^nd December 2004, again by Registered Nurse Sally McGrath. This medication was for [C’s] mental psychosis
…
The medication required for [C’s] mental state was up-to-date.
Dr Bagar gave evidence concerning the notes she made as a result of her examination of C on 18 February 2005. In cross-examination she was asked (T217-T218):
QThank you doctor, just the paragraph that follows after that, the words I have is ‘Auditory hallucination’.
AYou are right.
QAnd then an arrow ‘Hear voices of female’; is that right.
AYou absolutely right.
QAnd then ‘They are telling her to go bush, keep away’; is that correct.
AAbsolutely right.
QCould you tell the court what symptoms you observed in relation to the auditory hallucination that caused you to write that down.
AShe also told me that she heard the voices of female and we in medical terms, we call it auditory hallucination. And those voices of female told her to go bush, keep away. That is a symptom of a person who can have a psychosis, schizophrenia, mental problems.

In re-examination on this point Dr Bagar said (T221):
QYou were asked some questions about a reference in your notes to auditory hallucinations and you told us that C had spoken to you about hearing a female voice or voices telling her to go bush.
AYes.
QAnd to keep away.
AYes.
QShe indicate who the voice was telling her to keep away from.
AAway from those boys who vaginally assaulted her, those boys.
QSo is your understanding of what C told you, that since this sexual assault had happened there were female voices telling her to go bush and to keep away from those boys.
AI don’t want to discuss anything further of that thing because I cannot remember, I am just using, like you, my additional notes.
So far as diagnosis is concerned, C appears to suffer from “mental psychosis” which is likely to be schizophrenia. The symptoms of the condition, which C recognises and acknowledges, are that she can sometimes hear things that aren’t there and can sometimes see things that aren’t there.
On that night, she was up to date with her medication. However, she said she heard the sound of stones on the roof and the wind, and agreed that this was one of those times that she was hearing things that weren’t there (T92). Dr Bagar also gave evidence that C reported hearing female voices telling her to go bush and to keep away from the boys who had assaulted her.
It was submitted by counsel for L that as a result of her mental state, I should not be satisfied beyond reasonable doubt of C’s credibility in her account of what happened that night so far as the sexual assault was concerned.
In considering this submission and in considering the above evidence, I note that C appears to acknowledge where she has suffered from symptoms which may be attributable to her mental psychosis, and she appears to differentiate between those matters and what she said occurred on that night. In particular, C specifically denied that she had imagined the “bad thing”.
Taking into account the submissions and her evidence, I am satisfied that even though C probably suffers from some form of mental psychosis, and that she may have suffered some symptoms which could be attributed to that condition both on that night as she admitted, and the following day as recorded by Dr Bagar, they were specific symptoms. They do not of themselves cause me to have a reasonable doubt about the credibility or reliability of other aspects of her evidence.
I will now discuss C’s evidence concerning the events which she said took place on that night. Since counsel for both accused allege inconsistencies between her evidence and prior statements, I will first refer to the circumstances in which statements were taken from C, as this is relevant to the allegations and the weight to be placed on any apparent inconsistencies.
Statements taken from C
The first person to whom C complained of sexual assault by the two accused was a nurse from the Amata Clinic, who is now deceased. No evidence was tendered about what C said to the nurse.
C’s first interview with the police was conducted by Constable Macpherson on 18 February 2005. That occurred at about 3:00 pm after police received a phone call from the nurse. Constable Macpherson had only taken two or three sexual assault statements from any persons prior to that time and had received no particular training. The interview took place without the use of an interpreter under a veranda at the back of the Amata Police Station. The veranda was open and Aboriginal persons were passing by throughout the interview. In her evidence, Constable Macpherson said she thought that this probably made C feel uncomfortable.
Constable Macpherson had only a limited time in which to take the statement. She estimated that the statement took about an hour and said that it was “reasonably difficult” to obtain a statement from C. Constable Macpherson described C as being difficult to understand, said she lapsed into lengthy periods of silence, and said mostly she spoke quietly and looked down. Constable Macpherson said she took down the statement as C had told it to her and that sometimes she went back a sentence or two just to clarify what C had meant. The statement was taken down by Constable Macpherson in writing and was only two pages long.
C admitted that she had signed the two pages of the statement with her name. She was asked whether she was able to understand what the police officer said and she said “a little bit.” She was cross-examined in some detail as to her understanding of what was written on the statement. She indicated she could only read “a little bit” and that she didn’t understand it (T157-158). These matters are significant when considering the alleged inconsistencies between that statement and her evidence given in court.
The second recorded statement made by C was to a medical practitioner, Dr Bagar. This was a statement given in the context of Dr Bagar undertaking an examination of C. Dr Bagar spoke English with a heavy accent, and she obtained a history from C in English without the use of an Aboriginal interpreter. The doctor’s notes did not purport to record the conversation verbatim. This conversation was witnessed by Constable Dooley-McDonnell, who also recorded more detailed notes in an investigation diary.
A third statement was taken from C more than a year later by Senior Constable Brumpton from the Sexual Crime Investigation Branch. She attended C at Alice Springs on 27 February 2006 for the purpose of obtaining a statement. Senior Constable Brumpton was the first police officer to use a female interpreter to take a statement. Senior Constable Brumpton started taking the statement on a laptop computer, but found the interview difficult and slow, and was not satisfied with C’s literacy skills. When continuing the statement the following day, she decided to have it recorded using an audiotape facility at the police station. A much more detailed statement was taken from C at that time. The statement taken the day before was not before the Court.
It can be seen from the above scenario that, without in any way being critical of the police or Dr Bagar who were dealing with a very difficult situation in less than optimum conditions, there are significant concerns about the statements taken from C, regarding their adequacy, accuracy, and C’s comprehension of the questions asked of her.
The date
Although the information alleges a span of dates between 17 February 2004 and 18 February 2005, the Crown case was initially presented on the basis that the incident occurred on the night of 17 February 2004, and that C had seen Constable Macpherson, Constable Dooley-McDonnell, and Dr Bagar on 18 February 2004. The suggestion of a date other than 17 February 2004, namely 16 February 2004, did not emerge until after C’s evidence and indeed after all of the oral evidence adduced by the prosecution had been completed. It arose following the tendering by the prosecution (with consent of defence counsel) of a statement of Rondelle Seden, (Exhibit P21) the effect of which is discussed hereafter.
C gave evidence that her family had gone to the homelands camping, and that they had not told her that they were going (T90). She was therefore staying in the house alone (T75). C said that she thought that her family may have left about lunch time. When questioned whether this was the same day the bad things happened or another day, she said that it was at another time, although this was not pursued further (T91). This evidence was the subject of criticism by counsel for L, who submitted that it was unlikely that C did not know her family had gone to the homelands. I saw no credibility issue with regard to her evidence, bearing in mind that she was living in a traditional Aboriginal community and was surrounded by other Aboriginal people whom she knew in her community. One cannot look at her evidence in a European context. It was a matter of comment by counsel only in submissions and there was no cross-examination of C on that point.
C said that on that night she had been with friends listening to tapes. She said she got tired and went back to her house to sleep. Once in the house she sat down and watched television. She identified this as being the programme “Blue Heelers” which she saw right to the end (T75).This is where the statement of Ms Seden, a programming manager with Southern Cross Broadcasting, became relevant. In summary, Ms Seden stated that Blue Heelers was screened every Wednesday between 8.30 pm and 9.30 pm throughout February 2005.
If the evidence of C was correct, namely that she had watched the programme “Blue Heelers” on the night of the incident, then the incident must have occurred on the night of Wednesday 16 February 2005, and not Thursday 17 February 2005. C first reported the incident on 18 February 2005. Therefore, if C was correct about the program she had watched, then there is a day which is unaccounted for.
C’s evidence was that after she had been assaulted, she went to the store and stayed there until the sun came up. She said she went there because she was in a lot of pain and she couldn’t sleep properly. She said that in the morning she went straight to the clinic.
The tender of Ms Seden’s statement was the first time that counsel for the accused were aware of the possibility of an alternative date. Up until that time both accused had been conducting their respective cases on the basis that the alleged offences had occurred on 17 February 2005, and C had reported it and gone to the clinic on the following day, 18 February 2005.
Having heard C’s evidence and her account of her actions after the event, in my view the likely situation is that C is confused about which television programme she watched. I consider this to be the most likely explanation, bearing in mind the length of time which has elapsed between the alleged incidents and her giving evidence. This conclusion also accords with the submissions made by counsel for L, who indicated that the alleged offences were likely to have taken place on Thursday, 17 February 2005. No submission on that particular point was put by counsel for R. I am satisfied beyond reasonable doubt that the date of the alleged offences was 17 February 2005. I do not consider that this issue adversely affects C’s credibility on the major issues.
Other noises
C gave evidence of having heard other noises on the night of the incident. Her evidence-in-chief was given in a narrative form, as follows (T68):
… I switched the TV off and I went to sleep. After that, I heard some noise. It was a really windy night that night. When I was lying down, I was getting a bit frightened and I can hear some stones being thrown on the roof and to the window also. And I wonder there might be some man walking around or something else. Then I woke up and then I started getting a bit tired again and then I went back to sleep. And something woke me up then and I seen someone coming through the window.
She was cross-examined by Counsel for L about her health and whether she sometimes heard things that “weren't there” (T91-93). I have already dealt with the issue of C’s mental health above.
C was also asked in cross-examination about other noises, namely whether she had told Constable Macpherson that men were “banging on the front door”, to which she answered, “Yes.” (T157) She was also cross-examined as to whether she told Constable Macpherson that two men were yelling “Open the door”, which she also agreed she had said. She was cross-examined as to whether she told Dr Bagar that she heard the dog growling on the night, to which she answered, “Yes.” (T164), and further whether she told the doctor that at the time the dog was growling there was “knocking on the door”, to which she answered, “Yes.” (T164) She was also asked whether she told the doctor that she opened the door when she heard the knocking, and she answered, “No.” (T165)
Counsel for the accused alleged that these statements were inconsistent with C’s evidence. In particular, it was submitted that the statements regarding men (plural) knocking on the door and yelling out “open the door” are inconsistent with her evidence that one of the men had come through the window. C was not asked any further questions in cross-examination as to whether the statements that she had given to the Constable Macpherson and Dr Bagar were correct. I am therefore left in a situation where she gave no evidence-in-chief on these issues, but there is an affirmation in cross-examination that she had given statements on those matters to Constable Macpherson and Dr Bagar. There is no direct inconsistency between those statements and her evidence, but rather an absence of detail in her evidence.
I note that C candidly admitted having given two of the previous statements and specifically denied telling the doctor that she had opened the door when she heard the knocking. I also note that when C gave this history to Dr Bagar (which was also witnessed by Constable Dooley-McDonnell) she did not have the benefit of an interpreter. Further, the note in Constable Dooley-McDonnell’s investigation diary simply states: “them two was coming knocking on door – [C] opened – climbed through window …” (Exhibit 1D9)
Having considered these matters, I think the sound of a yelling male voice or banging on a door is not necessarily inconsistent with her evidence that one of the men came through the window and the other came through the door. I also think there may have been some misunderstanding about the opening of the door. Given her overall evidence as to what happened on that night, it is most unlikely that she opened any door to let any man in. I do not consider this particular topic by itself demonstrates any inconsistency of concern to me on the primary issues of the sexual assaults alleged.
Entry into the house
On the topic of the mode of entry into the house, C gave the following evidence in narrative form during examination-in-chief:
… something woke me up then and I seen someone coming through the window. And I was getting really frightened then. Someone was talking to me. Then I say “Who are you?” And then I asked “What did you come here for?” And this person said “I come to see you.” Then I asked “What’s your name?” He told me his name then, [L]. And then I asked him “What did you come here for? What did you come here for? Just get up and go. I don’t want to see you.” He was standing there for a long time thinking. Then he said “Put the light off” and I said “No.” Then I said to him “You go and do something to any other woman. What do you come looking for me for?” And that’s when the brother come in. The brother saw [L] then. That’s when both of them were acting a bit strange then. I told them “Get out and go. You two got no shame coming in. What you two come here for, what you want to do?.” Didn’t say nothing.
Thereafter C continued to recount what had happened to her.
She was asked further questions in examination-in-chief (T72) in relation to “the brother”:
Q.    You’ve told us that after that, the brother came in to the room.
A.    Yes, he came in.
Q.    What brother. What was his name.
A.    [R].
Q.    How did he come into the room.
A.I remember him at the doorway and he came in. I said “What are you doing? This door should be locked. How did you open the door. How did you two open the door?” And they said “That’s how it was. The door was open.” That’s when I didn’t know what to do then.
The final answer is another example of where C used the plural of “you two” or “they” when it appears she is referring to only one person, namely the brother whom she identified as R at the doorway. Her earlier evidence was that the person who said he was L had come through the window and was already in the room when she saw “the brother”.
C was then cross-examined about the entry into the house and whether both men came through the window, both men came through the door, or one came through the window and the other through the door. This cross-examination was mostly concerned with earlier statements made by her to the police and to Dr Bagar.
Initially she was cross-examined as to what she said to Constable Macpherson. She was asked whether she had told the police officer that “the men had come into the house through the window, by lifting up the screen” (emphasis added) She answered, “Yes.” She was then questioned as to whether what she told Constable Macpherson was “wrong” to which she answered, “No, the true story.” (T108)
Thereafter followed some confusing cross-examination in which propositions were put to her suggesting that what she told Constable Macpherson about “the men coming in the bedroom while she was still in bed” was incorrect. The problem with that proposition was that her evidence was consistent on that point, regardless of whether both men came through the window or one through the window and one through the door. On either of these scenarios her evidence was that she was “still in bed” when the men came into her bedroom.
She was also cross-examined about what she told Dr Bagar and whether she told the doctor that “two boys climbed through the window” (emphasis added) to which she answered, “Yes.” (T165) She was also asked whether she told Senior Constable Brumpton that “the men” had come into the house through the window by lifting the screen to which she answered, “Yes.” She also agreed that she had told the police officer that “the men” had come into the house by lifting the window, and she further added “R wasn’t telling the straight story.” (T180-181)
Finally, at the end of this topic of cross-examination, she reaffirmed that the first man had come through the window and the second had come through the door (T181).
This line of cross-examination revealed that she did not dispute what she had told the police officers and also Dr Bagar, that it was either the “two” of them or “they” came through the door and through the window. Again, in my view, this was an example where it is only upon specific questioning that C differentiates the plural from the singular. Notwithstanding this apparent inconsistency, I am satisfied beyond reasonable doubt that one man came through the window and the other through the door. I will deal with identification evidence later in these reasons.
Locking of doors
One of the issues raised at some length in the case concerned C’s evidence about the locking or closing of particular doors. The three relevant doors are the front door which is seen in Exhibit P1 Photographs 1 and 2; her bedroom door which is seen in Exhibit P1 Photograph 10; and the back door which can be seen in her drawing in Exhibit P2.
In her evidence-in-chief, (T68) C spoke of returning to the house, and simply said she “went through the door back to the house.” She did not at that point specify which door she referred to. She said she locked the door (again without specification) and sat down to watch television.
Also in examination-in-chief she indicated that she had her bedroom door “open then so the light can come in” (T71). She said that the light was broken and that she was using the light “in the middle” which she said was from the big room (T71).
Her next reference to a door in her examination-in-chief is when she describes seeing the second man at the doorway (T72). She gave evidence of saying to him: “What are you doing? This door should be locked. How did you open the door? How did you two open the door?” She then said that, “they said ‘that’s how it was. The door was open.’” (T73) She was further asked which door she was talking about when she asked the boys how they had opened the door, and she replied that it was “the back door into her house” (T73).
It can be seen from this evidence that she has moved from giving evidence about the bedroom door to evidence about the back door. In my view, there was no inconsistency with her earlier evidence that she left her bedroom door open when she went to bed.

She was later asked specifically during examination-in-chief about the front door of the house and whether or not that door had been open or closed that night (T73). She answered, “I don’t know but I was sure that it was closed. I must have forgot to lock the door but I did lock my door, and that’s when I went to sleep.” She was then asked:
Q. Which door do you mean by “your door.”
A. That was locked. I don’t know – didn’t know which door was locked.
Later in cross-examination she clarified her evidence and said that when she spoke of “my door” in the above passage referred to, she was referring to the back door (T103). She also confirmed in cross-examination, (T103-104) that the bedroom door was open. Therefore, at the end of cross-examination, there is no inconsistency. It is rather confirmatory of her previous evidence, namely, she thought she locked the back door but she may have forgotten, and her bedroom door was open.
In my opinion she was endeavouring to give her evidence accurately and it is understandable that she was expressing uncertainty about whether both outside doors were locked when she knew that one of the men came into her bedroom through the bedroom door.
There was an attempt by counsel for R to cross-examine on a statement which C gave to Senior Constable Karen Brumpton. This was the subject of various objections, which were resolved by the prosecutor agreeing to tender certain passages of the statement to enable counsel to make submissions about alleged prior inconsistency.
There was further cross-examination about her bedroom door in a different context. C was cross-examined about whether either of the men, “banged on her bedroom door at any point”, to which she answered, “Yes.” (T113) She was then asked whether the bedroom door was open or closed when the person was banging on it, and she replied: “it was closed.” She was further asked whether it was the first man or the second man who was banging on the door, and she said “the second man.”
She was then asked where the first man was when there was banging on the door, and she responded, “He was standing on the other side.” (T114)   Thereafter came the following exchange (T114):
Q.    Sorry, the other side of what?
A.    The back door.
Q.So do I understand he wasn’t in your bedroom when the man was banging on the door.
A.Was on the inside.
Q.Sorry, the inside of what?
A.The door.
Q.Sorry, which door?
A.I am talking about the bedroom door.
It can be seen from these passages that there seems to be a confusion between the bedroom door and the back door, however she eventually indicated that she was referring to the bedroom door.
There is then an apparent inconsistency between her evidence-in-chief, where she says that the bedroom door was open, and the above evidence in which she is indicating that the bedroom door was closed. It is possible for both of those to be correct, but no questions were asked in order to clarify that. The bedroom door could have been open when she went to sleep for the purposes of obtaining light in her bedroom. The first man after he came in through the window told her to put the light off. It is possible that the door was shut to keep the light out and the second man banged on the door before coming in. However, there is insufficient evidence to draw this inference, and I only advert to it because it is a possible explanation of her evidence. C was otherwise positive that she left her bedroom door open when she went to sleep and she had a particular reason for knowing it was left open. I am satisfied that any inconsistency about the second man banging on the bedroom door is not a matter which by itself detracts from the credibility of her evidence that she left her bedroom door open.
There is still further evidence to be considered in relation to the doors. A statement given by C to Senior Constable Karen Brumpton more than a year later and with the assistance of an interpreter, was tendered (Exhibit D26). On the issue of the doors, the statement taken by Senior Constable Brumpton contains the following questions and answers (Exhibit D27):
Q.… Did you tell me that they came into your bedroom through the bedroom door, is that right?
A.Yes.
Q.Yes, so the bedroom door not the bedroom window.
A.Door.
Q.Door Okay. All right. And you said to me that they were using something to open the door. Do you know what that was? (emphasis added).
At that point in the recorded transcript of the interview there is no reference to C having asserted that somebody was using something to open a door. The underlined portion appears to advert to a conversation the day before which was not recorded, and there is no context in which the statement was made. The statement continues:
A.    Screwdriver.
Q.    It was a screwdriver. Who had the screwdriver?
A.    [L].
Q.    [L]?
A.    Yeah.
Q.    Did you see the screwdriver, [C]?
A.    Yeah.
Q.    What colour was the handle?
A.    Yellow and black.
Q.Yellow and black. Okay. ‘Cos I think I might have got a bit confused yesterday, that’s why I’m asking these things. ‘Cos, did you tell me that your bedroom door had a twist lock?
A.    Yeah, you could twist it.
Q.    All right. So did you lock your bedroom door when you went to bed.
A.      Yeah, I remember shutting the door.
Q.Yeah. Because I’m thinking if they had to use a screwdriver it must have been locked.
A.Yeah it was locked.
Q.It was locked, okay. And after they came in the room, after they used the screwdriver, did the door still lock or was it broken after that?
A.They used the screwdriver to open the door and they went in.
This underlined evidence is a suggestion made by the police officer that if her bedroom door was closed then, “I’m thinking if they had to use a screwdriver it must have been locked.” C then answers, “Yeah it was locked.” There, therefore seemed to be a supposition of the police officer and C agrees with the supposition. This in my view was an example of a tendency to answer “yes”, particularly in response to a person of authority. This is why it is so important to know the context in which a statement is given. In this instance the starting point is an assertion put about something being used to open a door.
The statement taken by Senior Constable Karen Brumpton continues on another aspect of doors at pages 15 and 16 of D27:
Q.… I’m not sure that I really understood what you were telling me the other day. When you got home, did you lock your house?
A.Sometimes I leave the door open because … I don’t have a key.
Q.Alright. Can you remember that night when you came home after being out if you locked the door when you got home?
A.Only my auntie has all the keys.
Q.Your auntie has all the keys. So there is a main front door to your house?
A.Yeah.
Q.Yeah. All right, so when you got home, were you able to lock that door or not?
A.Night time I lock it.
Q.How do you lock it?
A.When I go back, I go in, go in there and lock the door and then that’s when I want to go to bed.
Q.All right. Did you use a key to lock the door or did you lock it in some other way?
A.Other way.
Q.Other way. How does it lock? Different doors have different kinds of locks.
Thereafter there is a description of the types of locks, one indicating a chain and the other indicating a twisting motion. She continued on at page 16:
Q.All right, so we’ve covered the lock on the door of the house. Now you also told me that your bedroom door has a lock on it too. Is that right?
A.Yes.
Q.And did you lock that when you went into your room?
A.Yes.
Q.How does that one lock. Show me how that one locks.
A.With the handle.
Q.With the handle. Okay…
The above passages of transcript of the interview demonstrate the difficulty in obtaining information from C generally. They are questions directed to topics which are peripheral to the actions which comprise the elements of the alleged offences although these are matters which I must consider when considering C’s reliability. The transcript demonstrates the suggestibility of C. She sometimes answers questions from her direct memory but then at other times gives evidence about what she has usually done in relation to the shutting or locking of those doors and the capacity of doors to be locked, as well as what she thought must have happened if the doors were locked.
I must also be careful when having regard to the statement of C to the police, bearing in mind the limited purpose for which it was tendered. It was confined to making a point about the alleged inconsistency in C’s statement about the bedroom door being closed and locked, rather than being left open as she said in her evidence. She gave no evidence about the screwdriver, either in examination-in-chief or cross-examination, and it remains a topic which is not adopted by her in her evidence.
Having heard C’s evidence-in-chief and taking into account the cross-examination and the counsel’s submissions, I am satisfied beyond reasonable doubt that on that evening she left her bedroom door open to allow the light to come in. I am not able to make any finding as to how the second person came in the house and into her bedroom, except to say it was not through the window of her bedroom. I am unable to find on the evidence whether an external door was forced, (there was no evidence either way on this) or whether one of the external doors had not been locked and it was simply opened. In my view, there is an explanation for the relatively minor inconsistencies about doors, and I will return to this matter again when considering the overall issues of C’s reliability.
The lighting
A further issue which arose in the case is the lighting present on the night of the alleged offence. This issue is linked with whether the bedroom door was closed or open when C went to bed as previously referred to. C’s evidence was that the light in her room was broken and the light in her room came from the main room (T71, 104). She also confirmed that when the man came in through the window he asked for the light to be turned off (T104-105).
When cross-examined, she was asked (T101):
Q.When you went to bed at night – I just mean any night – you would sleep with the light on, wouldn’t you?
A.Yes, the light’s on in the kitchen.
It is to be noted that she was asked at this point about what light was generally on. She was then later cross-examined and the following questions were asked (T104):
Q.    Was the light on in the big room in photograph number 11 when you went to bed?
A.    Yes.
Q.    Was the light on in the kitchen at the time you went to bed?
A.    Yes.
She was also cross-examined and asked whether she had told Constable Macpherson that her “bedroom light was on”, which she agreed she had (T160). She was then asked the question:
Q.    Which one is correct; your light was broken or the light in your room was on?
A.    The light was broken
It was suggested that this was an area of inconsistency which should be taken into account in assessing credibility. I agree that there is an inconsistency in relation to the statement which was given to Constable MacPherson. However, I have regard to the fact that this was taken without the assistance of an interpreter and it is not known precisely what question gave rise to her answer “My bedroom light was on”. Having heard her give her evidence and having heard her cross-examination, I accept her evidence, and I am satisfied beyond reasonable doubt that the bedroom light was broken at that time and that she had the light on in the main room which came into her bedroom. I am unsure whether the kitchen light was also on that night or whether that was instead a light which she usually had on.
I will again address this issue when considering overall matters of credibility.
Kicking
Counsel for L submitted that C’s evidence about kicking was inconsistent with prior statements and with the evidence of Dr Bagar.
C gave evidence that she was kicked on the night. The evidence was that both of the accused kicked her. She said that one of them was kicking her from behind (T69). She also said that the first man (L) was kicking her very hard where her knees were (T72). She was asked questions about what she told Constable MacPherson and whether she told the police officer that, “they started kicking you all over your body”, to which she answered, “Yes.” (T161) She was not asked whether what she told Constable MacPherson was correct. The statement which C gave to the police officer is not evidence before me on this point.
She was also cross-examined about whether she told Dr Bagar that the men were kicking her, and that one of them was kicking her while the other one was having sex with her. She answered, “Yes.” (T165, 166) She confirmed later in cross-examination that both men had kicked her (T201). There is no evidence as to whether it was kicking with bare feet or with shoes on, or what part of her knee or body was kicked.
Counsel for L submitted that C’s evidence about kicking was inconsistent with Dr Bagar’s evidence that the external examination of the complainant was unremarkable (T211, 213). It was submitted that if the complainant had in fact been kicked as she said, then this would have been apparent to Dr Bagar on external examination. No question was put either in examination or in cross-examination of Dr Bagar to suggest that injury from kicking should have been apparent to her on examination. Bearing in mind that C is Aboriginal with dark skin, I am not prepared to infer that the external examination of her less than 24 hours later should have revealed bruising or other overt signs of kicking. There is no substance in an allegation of inconsistency by virtue of the external examination conducted by Dr Bagar. I am satisfied beyond reasonable doubt that she was kicked by both men on that night.
Urinating
During cross-examination C was asked whether one of the men had “pissed” on her, which she affirmed (T165). C also agreed that she had shown Dr Bagar on her body where that had happened. She said it was L who had pissed on her and that he had done it after he had done “the bad thing” and that he had “pissed all over her” (T201). Dr Bagar was not asked questions on the topic. I am satisfied beyond reasonable doubt on the evidence C has given that the first man who said his name was L, urinated over her.
Clothing – scientific evidence
I heard extensive scientific evidence about the clothing which was taken from C, being the same clothing she said she was wearing on that night and was still wearing when she spoke to Constable Macpherson. The clothing consisted of shorts, (Exhibit P13) a bra, (Exhibit D8) a green t-shirt, (Exhibit P11) and a pair of underpants (Exhibit P12).
The Crown called Mr Silenieks who is a technical officer at the Forensic Science Centre in Adelaide. Defence Counsel called Mr Dale Carroll who is the Manager of Consulting Services at the Textile Testing Laboratory and Microscopy Area for the CSIRO. The main issue which arose concerned Mr Silenieks’ evidence about alleged damage to the shorts and the bra, which he said showed signs of “recent tear.” This assessment of the recency of the tear was the subject of an apparently different opinion by Mr Carroll.
Whilst extensive evidence was given by both witnesses as to whether the clothing damage indicated a “recent tear”, in the net result there was a consistency in the evidence given by the two experts. Their evidence was not corroborative of C’s account of her clothing being torn from her and in particular that her shorts were torn on that night, but neither was their evidence inconsistent with C’s evidence as to the removal of her clothing. Therefore, in spite of the detail, their evidence was neutral regarding what C said occurred to her clothing on that night. Both prosecution and defence counsel agreed that this was the net result. There is therefore no need for me to go to the detail of this evidence because in the final analysis it adds nothing. I will simply indicate the nature of the evidence.
In summary, whilst the evidence of the witnesses initially appeared to indicate disagreement, on further examination there appeared to be consistency in their opinions once it was understood what each of them meant by “recent tear.” Both agreed that the description “recent” was an expression of relativity which had regard to the degree of damage and was dependent on the extent of pre-existing wear and tear, humidity, whether the area was subject to abrasion, and the washing of a garment.
Washing was accepted by both scientists as being a defining moment and was the best way of describing whether damage was “recent ” by relating it to whether or not something had occurred before or after it was last washed. On this point they both agreed that the damage they identified had been caused since the last wash. All garments were in a soiled and damaged condition and showed significant wear and tear. None of this evidence assisted or detracted from the evidence of C. It was indeed neutral.
Mr Silenieks gave other evidence which was not the subject of any conflicting evidence from Mr Carroll. I accept his evidence. Mr Silenieks tested the shorts, bra, T-shirt and underpants for the presence of blood and semen. He used a polylight test followed by acid phosphatase test. The two tests did not reveal the presence of semen on any of the clothing.
There was a presumptive hemastix test performed for blood on the clothing but no further testing was conducted. There was a positive presumptive hemastix test for blood found on the shorts, the bra and the under pants but not on the t-shirt. In relation to the under pants, Mr Silenieks formed the view that there were two types of staining which met the description of blood staining. He determined that some staining had ill-defined edges and were pale and appeared to be older stains. Other stains he regarded as being more recent in that they were more defined, heavier and had not been worn away. He determined that the latter appeared to be airborne blood because of its spatter appearance and did not appear to have been transported by contact. This was again neutral in its relevance to C’s account. It did not corroborate, but nor was it inconsistent with her evidence.
Having considered the evidence of the scientists, I do not consider they shed any light one way or the other on the evidence given by C. It is certainly not corroborative but it is not inconsistent with her evidence.
Failure to investigate
Counsel for L submitted that the prosecution failed to investigate and adduce evidence on a number of matters, namely:
·There was no evidence was adduced from any family member of C to establish whether the family went to the homelands without her and when they went.
·There was a failure to call C’s uncle.
·There was a failure to examine the scene or take the bed clothing for examination.
These submissions were made at the completion of the trial and there was no cross-examination on that issue of, for example, any investigating officer.
I will now turn to each of the allegations. The first allegation concerns the failure to call evidence from any family member as to whether they went to the homelands and when they went. There was no cross-examination of C to suggest that her family did not go to the homelands. On the contrary, their absence from the home on that night seemed to have been accepted. The limited cross-examination of C was directed to her lack of credibility, in that she said she did not know beforehand that they were going and did not know when they went. I have already dealt with that aspect earlier in these reasons. In these circumstances I do not see how the failure by the prosecution to call any family members to support what C had said, which did not appear to be challenged by the defence, save in a peripheral way, would be likely to have disclosed any exculpatory evidence or deprived the defendant from having access to information which would be likely to assist them.

Turning now to the failure to call the uncle. When giving her evidence Dr Bagar was asked to read out what her notes said and she indicated as follows (T217):
“I told policeman in Amata I was punched in. My uncle came and see me and said, ‘go away’ to them.” Go away to them means to the boys. “Crying whole night. Both of then had vaginal sex with me.”
The notes of Constable Dooley-McDonald on the same topic read as follows:
Doing it fast, - sex fast way, couldn’t punch them one boy watching, kicking them – my uncle saw them said go away – R doing sex with me – both with same surname uncle saw them …
Then later in the notes (Exhibit D9):
… sleeping no-one at home uncle Donald Winimar chase them …
C was cross-examined and gave the following evidence (T115-116):
Q:    You said the men ran away: is that right.
A:    Yes.
Q:    Is that because your uncle chased them away.
A:    No.
Q:    Was your uncle there.
A:    No …
Her evidence in cross-examination continued (T116):
Q:    Did you tell the lady doctor that your uncle had chased these men away.
A:    I didn’t say that.
Therefore in evidence C denied that her uncle was there on that night and also denied that she told Dr Bagar he chased them away. The notes taken by the doctor do not refer to the uncle “chasing the men” away. There is also a lack of clarity about the temporal connection and sequence of events, which are noted by the doctor.
Constable Dooley McDonald’s notes differ in a number of respects from Dr Bagar’s. In the first note taken, there is no reference to the uncle “chasing” the men and the note appears to suggest, on one reading, that the uncle was actually present when C was assaulted. In the second note there is reference to a particular uncle “chasing them” but that reference occurs immediately after a reference to there being “no-one at home”. The notes are also confusing as to its temporal connection.
Neither Dr Bagar nor Constable Dooley McDonald were asked any questions about this aspect of their notes. C denied the proposition which was put to her. The reference to the uncle and its context, including the temporal connection with the events on that night, remain unresolved.
It is not for me to surmise and I do not. I simply note that Constable Macpherson said that when she arrived at C’s house the following afternoon, there were Aboriginal persons who were under the veranda of the house with C. Those persons were not identified save that one was a female (T227). At the same time, both of the accused were present near the verandah of the house, which was one of the reasons why C was taken to the police station for interviewing (T234).
The point that is made by counsel for L is that the uncle should have been called. C denies that her uncle was there on the night and denies that she told the doctor that her uncle chased the accused away. There are differing notes taken of the conversation with C, which took place without the assistance of an interpreter. In these circumstances, and having regard to the limited evidence on this point, I am not persuaded that there is evidence which suggests that the uncle was a potential witness to the alleged offences.I am not persuaded that there is a likelihood that the calling of the uncle would be likely to disclose any exculpatory evidence or that it deprived the accused from having access to information which would be likely to assist to their defence.
I turn now to the allegation that there was a failure to examine the scene or take the bed clothing for examination. This was not the topic of any cross-examination of any investigating officer. I have seen the circumstances of the house and the conditions of sleeping, which are different from those which may exist in city dwellings occupied by non indigenous people. There is no evidence of any likelihood that a scientific examination would have disclosed any exculpatory evidence of the defendants. It is speculative at best. There was examination of C’s clothing, which was the most relevant focus of examination, and that was neutral in its outcome.
In summary, counsel for the accused did not point to any evidence of (or indeed indicate in submissions) any likelihood that the calling of such evidence, or the undertaking of any scientific examination, would have disclosed any exculpatory evidence or deprived the accused from having access to information which would be likely to assist the defence.
Identification of accused and their actions
Identification was the major aspect of the case. I will consider it first as a discrete issue, before then considering the evidence of identification having regard to all issues which have been raised by the defendants regarding C’s credibility. I will also have regard to the issue of identification in considering the actions of each of the men on that night as described by C.
C gave evidence that the man who came through the window was L and the man who was at the doorway was his brother R. She had previously given evidence that she knew both of them.
The first man - L
I have previously set out in paragraph 62 the narrative regarding the first man, which C provided during her examination-in-chief. For convenience, I will repeat the short narrative (T68-69):
… something woke me up then and I seen someone coming through the window. And I was getting really frightened then. Someone was talking to me. Then I say “Who are you?” And then I asked “What did you come here for?” And this person said “I come to see you.” Then I asked “What’s your name?” He told me his name then, L. And then I asked him “What did you come here for? What did you come here for? Just get up and go. I don’t want to see you.” He was standing there for a long time thinking. Then he said “Put the light off” and I said “No.” Then I said to him “You go and do something to any other woman. What do you come looking for me for?” And that’s when the brother come in. The brother saw L then. That’s when both of them were acting a bit strange then. I told them “Get out and go. You two got no shame coming in. What you two come here for, what you want to do?” Didn’t say nothing.
In addition to that description she said that when he was speaking to her he was “really close” (T72). She then described him as wearing jeans and a T-shirt with Eminen on it. He had a cool drink plastic bottle on his face which she said he was sniffing (T72). She later added some further narrative about the conversation follower her question: “What are you going to do something?”. Her evidence was that he said (T76):
“I wanted to do something bad to you”, and I said, “No I’m going to tell my father when he comes.” And he was just standing there then and I was saying, “You’d better get out. When someone comes, they going to see you, yes” and he said, “No. I’m going to stay here with you.” Then I said to him, “What you going to do?” “I’m going to do something.” I said “What are you going to do to me?” “You watch me, I’m going to do something to you. You watch me.
C then said the man started taking off her shirt and shorts “with the trousers” and that was when she saw “the brother” come in (T76).
There was the following cross-examination by counsel for L about C’s evidence regarding the conversation with L (T104-105):
Q.You told us yesterday that when the man first came into the house, the man who said his name was [L], he told you to turn the light off.
A.Yes.
Q.And you said “No”; is that right?
A.Yes.
Q.Where was he when he asked for the light to be turned off; in what room?
A.In the room.
Q.In the room we see in photograph 10?
A.Yes.
Q.You could see this man?
A.It was night time then.
Q.But the light was on in the big room wasn’t it?
A.Yes.
Q.This man got really close to you didn’t he? You told us that yesterday.
A.Yes.
…
Q.And this man said his name was [L]; is that right?
A.Yes.
Q.You didn’t recognise this man who was in the room, did you?
A.I didn’t know him.
Q.Could you repeat the answer.
A.I didn’t know him.
Q.Did or did not?
A.I didn’t know him.
Q.I’m sorry?
A.Didn’t.
Q.When you first saw this man where was he?
A.Really close.
Later in cross-examination, the topic of clothing was raised. She was asked what she told Constable Macpherson about what the first man was wearing. C was asked whether she remembered telling Constable Macpherson that L was wearing a dark blue singlet. She answered, “Yes.” She was then asked (T118):
Q.Was that right. Was he wearing a dark blue singlet or was he wearing a T-shirt with Eminen on it?
A.I’m not sure now.
Q.You don’t remember what these men were wearing now, do you?
A.I don’t understand.
Q.This is a long time ago now, isn’t it?
A.Yes.
Q.Sometimes we don’t always remember everything after a long time.
A.Yes.
Thereafter a point was taken by the prosecutor and I agreed that C appeared to require a short break, which was then taken.
After the break she was again asked about what the first man was wearing, and she replied: “I’m just thinking, maybe he was wearing that blue singlet.” (T121)
C was then asked about what she told Senior Constable Brumpton more than a year after the event. She was asked whether she told the police officer that the first man was wearing a black T-shirt to which she answered, “Maybe.” She was further questioned about whether she remembered telling Senior Constable Brumpton that the first man had a black t-shirt on, and she answered “No” and then indicated that she did not remember (T121).
Then towards the end of cross-examination the following questions were also put by counsel for L:
Q.The night this bad thing happened to you, the first man who came into your room who said his name was L, that was not [the accused, L], was it?
A.Yes it was him.
Q.It was another man who said his name was L but it wasn’t [the accused, L].
A.It must have been him.
Q.[The accused, L] never had sex with you that night, never put his penis in your middle hole.
A.It was him.
In considering this evidence, I am satisfied that C knew L before this event, and had known him for some time as he had been at the same school as her. I also note that she had been woken up after being asleep, and she may have had difficulty focussing at the beginning. She also had the surprise of someone coming through her bedroom window. In those circumstances I do not think that simply because she asked, “Who is it?” to the person who came through the window, means that her subsequent identification of that person is not accurate.
I accept C’s evidence that the person who came through the window identified himself as being a person by the name of “L.” She gave a description of him which varied as to whether he was wearing an Eminen t-shirt or a dark blue singlet. In my view, this different description does not take on much significance. It was a dark top whichever description is accepted. I also note that she described him as having a plastic bottle on his face. There were no further questions as to what happened with this plastic bottle and whether it in any way obscured her view of his face.
There is no evidence as to the type of lighting or position of the lighting in the large room or how bright or otherwise it was in her bedroom. I accept that the lighting in the bedroom was ambient light from the main room. I accept C’s evidence that the person who came through the window told her to put the light out, which suggests that there was sufficient light for her to be able to see and be seen. I am satisfied that C was in a position where she had a sufficient opportunity to identify the first man who came through the window by reason of lighting which was on in the main room.
I also note that it was specifically put to C that it was not L but instead it was someone else who said his name was L. She immediately and confidently affirmed “It was him”. It was also put to her that L was not living at Amata but at Wallan at the time and that he came into Amata to collect his money. She agreed (T117). She was asked whether she knew persons by the name of Jeremy Bradey and his brother Elijah Bradey. She indicated that she did. She was asked whether Elijah had done the bad thing to her, and she answered “No.” There was no further evidence on these topics. Of course it is not for the defence to call such evidence and I can draw no adverse conclusion against the defendants from its absence.
My findings on identification are set out hereafter.
The second man - R
C said she first saw the second man whom she identified as “the brother” R, when he came to the doorway (T69).In cross-examination she said he was standing in the corner of her room near the door (T106).The appearance of and her identification of him occurs, on her evidence, after she says L asked her to turn the light off. She said, “and that’s when the brother came in.”
She said that she said to R, “What are you doing? This door should be locked. How did you open the door? How did you two open the door?” and that “they” said, “That’s how it was. The door was open.” (T72-73)
C described R as wearing a cap and holding a plastic bottle with petrol in it (T75-76).She said the men were “acting a bit strange then.” She told them to “get out and go.” She was asked what she meant by acting a bit strange and she said they were saying, “take off your t-shirt and trousers.” (T74)
In cross-examination counsel for R asked her (T181):
Q.Was it R who came through the door.
A.Yes.
Q.`What I am suggesting to you is that it was not R who came through the door.
A. He did come in the door.
I am satisfied that C had sufficient opportunity to be able to identify the person who was standing at the doorway.
In considering the matter of identification, being the overriding issue in this case, it is important that I bear in mind that evidence of identification needs to be approached with caution and that honest witnesses can be mistaken.
In this case it is necessary for me to bear in mind a number of factors which may affect C’s identification of the accused in this case. First, she had woken up after she had been asleep. Secondly, that she was surprised by a person coming through her bedroom window at night time. Thirdly, that there was no light on in her room and she relied on ambient light from a main room next to hers. Fourthly, I have regard to her evidence that both persons who came into her room had plastic bottles from which they were apparently sniffing petrol. There was no evidence of the degree to which the bottles may have impaired her ability to see their face, but I have inferred that these bottles would not have been an impediment above the nose. Fifthly, I note that C has known both the accused, and R in particular, for a long period of time. She lives in a very small community. The total number of people, including non-indigenous people, is only 300. The number of males, and in particular young adult males who are brothers, would be relatively small in numbers.
The greatest significance for identification in this case is C’s past knowledge of both of the accused. Whilst I have some concerns about the identification by reason of the first four factors mentioned above, I am satisfied that C has been honest and that she has reason for knowing it was the two accused and had the opportunity to identify them, not only initially, but also during the course of actions which followed.
Elements of rape
I now turn to the actions of the men in considering whether or not either of the accused has committed rape. I direct myself that the prosecution must prove three elements beyond reasonable doubt: First, that there was an act of sexual intercourse. Second, that C did not consent to that act of sexual intercourse. Third, that the accused knew that C was not consenting or was recklessly indifferent as to whether she was consenting: s 48 Criminal Law Consolidation Act 1935 (SA).
C gave evidence about the actions of both of the men in her room. She said (T69):
They started taking my pants off, my trousers. Taking T-shirt off really quickly. That’s when they grabbed both of my hands really tight. One of them grabbed hold of my foot. I couldn’t move much. They closed my mouth too and I couldn’t yell out then and that’s when they must have put their penis into me. One behind was kicking me. I didn’t know what to do for help. When they finished with me I could feel a lot of pain. I didn’t know where to go. I couldn’t walk properly.
C later identified L as the person who grabbed her hands, although she had initially said it was “they.” (T75) She later identified R as the one who grabbed her foot (T75).Both accused were involved in taking off her clothing.
Later in examination-in-chief, C said that “L put his penis in the middle part” which she identified on a diagram (Exhibit P3) as her vagina. She then said that R did it “up the back side” which she identified in Exhibit P3 as her anus. It is to be noted that she used the first name “R” when saying who did it up the back side and she did not simply refer to him as “the brother” as she had earlier in her evidence.
C was asked what had happened after they had “finished doing these bad things to you.” She said, “they got up and ran away.” (T78)
C was cross-examined about what position she was in when she says that L and R put their penises inside her. C replied that she was laying down. In response to a question as to whether she was laying on her side, her front or on her back she said, “I am feeling ashamed talking about it.” (T181) She then took a break and after that she gave evidence that she was “on her back side” (T182).She also said that R was in the front “where her stomach was” and that he was laying on her stomach (T182).She also confirmed in cross-examination that L had put his penis in first and then later R put his penis in, and that whilst R was having sex with her, L was standing in the background (T184).
I note that C had significant difficulty when giving her evidence on these sexual matters. She not only appeared very embarrassed, she also expressed that embarrassment. I found her evidence credible. I will now consider whether or not I am satisfied that the actions she described of each man was in fact committed by them on her and that it was done without her consent.
Doctor Bagar gave evidence about an examination which was undertaken by her. This was after C had spoken to the police, and in my view it was likely to have been the evening following the events which she described as amounting to the offences. Doctor Bagar, who gave evidence by video, said that she examined C on 18 February 2004 at 6.30 pm at the Alice Springs Hospital. She described herself as having graduated in Pakistan and having worked overseas and in hospitals in Adelaide. She is presently a full-time general practitioner in Alice Springs. The doctor had received training from the Sexual Assault Unit at Yarrow Place.
Doctor Bagar noted that C was very upset, fearful, crying a lot and was unusually moving her hands and legs during her examination. Doctor Bagar undertook an external examination of her vagina and anus and she found no abnormality. In addition, she performed a swab of C’s vagina both the low and high. She did not take a rectal swab or smear.
Doctor Bagar said that the absence of an abnormality on examination of a mature female adult such as C did not exclude sexual assault as having occurred. Doctor Bagar also said in cross-examination that a case of anal penetration would be more likely to show some evidence of tearing, bleeding, and soreness, than if there was a vaginal penetration. Nothing further was put to her which suggested that her finding of “no abnormality” excluded anal penetration. There was therefore nothing to exclude the sexual assaults having occurred as described by C. However, I must further consider the issue of C’s failure to complain specifically of anal rape.
Complaint about anal rape

Counsel for R submitted that I should not accept anal rape as being proved beyond reasonable doubt, because C did not complain of anal rape either when she gave a statement to Constable MacPherson at 3.00 pm on 18 February 2005 (Exhibit D25) or when she saw Dr Bagar. The first mention of anal penetration by C was not until one year later when Senior Constable Brumpton took a statement on 28 February 2006 and 1 March 2006.
In relation to the failure to complain of anal rape, the Crown submitted that this was very understandable given the sensitive nature of this type of sexual assault, in conjunction with an apparent assumption by the persons who took statements that the sexual assault she complained about was limited to vaginal penetration.
I note that Constable MacPherson’s statement refers to C saying that the men had “sex” with her. C did not mention either vaginal or anal intercourse. In relation to the interview with Dr Bagar, the doctor’s notes indicate that C complained of “vaginal intercourse.” Having heard C give evidence, I do not accept that C would have used the word “vaginal” nor would she have used the word “intercourse”. Dr Bagar did not give any evidence as to the actual words used by C, who did not have an interpreter at that time, to describe what had happened to her.
In cross-examination C agreed that she had told Dr Bagar that R was doing it “the rude way”. This expression is taken from the more detailed notes taken by Constable Dooley-McDonnell (Exhibit D 9) which is not before me, except for the limited purpose of alleged inconsistencies which are the subject of submissions. I simply note it. C was questioned as to what she meant by “the rude way” and she said it was “no good” and “it’s done the wrong way”. In re-examination she simply repeated that “the wrong way is what the bad thing that they did to me”.
It is possible that Dr Bagar assumed C’s words as referring to vaginal intercourse. It is not necessary for me to so find, as I am satisfied that C did not expressly say on either of these two occasions whether it was vaginal or anal intercourse.
In all of the circumstances, I consider that C’s failure to specifically complain of anal rape on these two occasions does not cause me to reject her evidence. I find there is an explanation for her failure to give that detail earlier and it does not detract from her credibility on that aspect. I do not consider that these statements should be interpreted in a way to exclude anal intercourse, nor do they cause me to have a reasonable doubt that anal and vaginal intercourse occurred.
The first time that C discloses that it was both an anal and vaginal rape, and that R committed the anal rape and L the vaginal rape, is a year later during a detailed interview, when a female Aboriginal interpreter was used for the first time. It was disclosed after there had been a first interview on 27 February and then another recorded on 28 February. It is understandable that C would have felt more comfortable speaking after she had established a relationship with the police officer and she had the benefit of an Aboriginal interpreter.
Conclusion on elements of rape
Considering the evidence in relation to the elements of the offence, I find that the accused L committed an act of penile penetration of the vagina of C. I also find that the accused R committed an act of penile penetration of the anus of C. These acts in my view amounted to sexual intercourse. I also find that C did not consent to these acts and that the actions of each of the accused was such that they either knew she was not consenting or they were recklessly indifferent as to her consent. There was no serious challenge by either of the defendants as to whether there was consensual intercourse, the main challenge concerned identification and more particularly whether anal intercourse had taken place. Therefore the offences have been made out.
Conclusion
It is necessary for me to now notionally stand back and consider the whole of the evidence before me to decide whether each of the accused is guilty of the offence with which he is charged and whether it has been proved beyond reasonable doubt. There are many matters which require my consideration and there are some matters which require particular consideration. It is necessary for me to have regard to them collectively and not just in an individual separate manner as I have discussed earlier in these reasons. I have specifically taken into account the following matters -
·The mental health of C.
·The circumstances of the taking of earlier statements from her.
·The alleged inconsistencies as to -
-other noises
-entry into the house
-closing and locking of external doors
-whether her bedroom door was open or shut
-the lighting in her bedroom
-the kicking
-the complaint of anal and vaginal rape
·The evidence of Dr Bagar
·The identification evidence.
·The scientific evidence
·The overall context of the manner of C in giving evidence.
I have carefully scrutinised C’s evidence in view of the lack of corroboration. I have had some concerns about the reliability of some aspects of C’s evidence as previously discussed. However, taking into account all of these matters and the whole of the evidence in the case, I consider that on the major elements of her identification of the accused and the sexual acts which she alleged each of the accused committed, C was both credible and reliable.
The areas of alleged inconsistency and unreliability were mostly concerned with matters of detail which understandably were of lesser importance to C, especially given the violent and demeaning activities which later followed.
I am satisfied beyond reasonable doubt that L had penile vaginal intercourse with C without her consent. He did so in circumstances which included kicking her and in which he knew she was not consenting. He also treated her with contempt by urinating on her after the event.
I am also satisfied beyond reasonable doubt that R had penile anal intercourse with her without her consent. I also find that this occurred in the overall circumstances in which he was present whilst his younger brother, L, vaginally raped C, and then R in turn anally raped her. I find that he did so knowing she was not consenting to his actions. I also find that he kicked C. I therefore find both accused guilty as charged.