R v RC
[2013] ACTSC 139
•19 July 2013
R V RC
[2013] ACTSC 139 (19 July 2013)
CRIMINAL LAW – jurisdiction practice and procedure – trial by judge alone – sexual intercourse without consent – assault with intent to have sexual intercourse – accused acquitted
CRIMINAL LAW – particular offences – offences against the person – sexual offences – sexual intercourse without consent – assault with intent to have sexual intercourse – no issue of principle
Crimes Act 1900 (ACT), ss 50, 53(1), 54, 57
Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 43, 46
Supreme Court Act 1933 (ACT), ss 68B, 68C
Fleming v The Queen (1998) 197 CLR 250
Iannella v French (1968) 119 CLR 84
Nguyen v The Queen [2012] ACTCA 24
R v DM [2010] ACTSC 137
R v Nguyen [2011] ACTSC 25
R v Shevlin [2013] ACTSC 88
No. SCC 196 of 2009
Judge: Refshauge J
Supreme Court of the ACT
Date: 19 July 2013
IN THE SUPREME COURT OF THE )
) No. SCC 196 of 2009
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
RC
ORDER
Judge: Refshauge J
Date: 19 July 2013
Place: Canberra
THE COURT FINDS THAT:
That RC is not guilty of unlawfully assaulting FKM on 14 November 2008 with intent to have sexual intercourse with her.
That RC is not guilty of engaging on 14 November 2008 in sexual intercourse with FKM without her consent and being reckless as to whether she consented.
That RC is not guilty of unlawfully assaulting FKM on 22 November 2008 with intent to engage in sexual intercourse with her.
That RC is not guilty of engaging on 22 November 2008 in sexual intercourse with FKM without her consent and being reckless as to whether she consented.
That RC is not guilty of engaging on 22 November 2008 in sexual intercourse with FKM without her consent and being reckless as to whether she consented.
That RC is not guilty of engaging on 22 November 2008 in sexual intercourse with FKM without her consent and being reckless as to whether she consented.
That RC is not guilty of engaging on 22 November 2008 in sexual intercourse with FKM without her consent and being reckless as to whether she consented.
On 22 November 2008, FKM, a woman who is the complainant in these proceedings, attended at Belconnen Police Station and reported that she had been sexually assaulted by the accused.
As a result, the accused was later arrested and charged with a number of offences against FKM.
On 22 May 2009, he was committed for trial to this Court and, on 22 March 2010, he signed an election for trial by judge alone under s 68B of the Supreme Court Act 1933 (ACT). An indictment containing seven counts was filed on 10 March 2010 and he was arraigned on 11 May 2010, pleading not guilty to all counts.
The trial commenced on 16 May 2011 and concluded on 20 May 2011 when I reserved my decision.
The offences
The accused pleaded not guilty to an indictment containing the following counts:
The DIRECTOR OF PUBLIC PROSECUTIONS, who prosecutes in this behalf for Her Majesty the Queen, INFORMS THE COURT AND CHARGES THAT on the 14th day of November 2008 at Canberra in the Australian Capital Territory [the accused] unlawfully assaulted FKM with intent to engage in sexual intercourse with her.
SECONDAND FURTHER THAT on the 14th day of November
COUNT2008 at Canberra ... [he] engaged in sexual intercourse with FKM without her consent and was reckless as to whether she consented to the sexual intercourse.
THIRDAND FURTHER THAT on the 22nd day of November
COUNT2008 at Canberra ... [he] unlawfully assaulted FKM with intent to engage in sexual intercourse with her.
FOURTHAND FURTHER THAT on the 22nd day of November
COUNT2008 at Canberra ... [he] engaged in sexual intercourse with FKM without her consent and was reckless as to whether she consented to the sexual intercourse.
FIFTHAND FURTHER THAT on the 22nd day of November
COUNT2008 at Canberra ... [he] engaged in sexual intercourse with FKM without her consent and was reckless as to whether she consented to the sexual intercourse.
SIXTHAND FURTHER THAT on the 22nd day of November
COUNT2008 at Canberra ... [he] engaged in sexual intercourse with FKM without her consent and was reckless as to whether she consented to the sexual intercourse.
SEVENTHAND FURTHER THAT on the 22nd day of November
COUNT2008 at Canberra ... [he] engaged in sexual intercourse with FKM without her consent and was reckless as to whether she consented to the sexual intercourse.
The indictment was originally filed on 1 September 2009. It contained eight counts, but the Crown decided not to proceed with the additional count in circumstances to which I will refer below (at [242]-[245]). The fresh indictment contained the above seven counts. He pleaded not guilty to each count.
Trial by Judge Alone
Under s 68C of the Supreme Court Act 1933 (ACT) a judge who tries proceedings for the prosecution of a person on indictment without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and such a finding has, for all purposes, the same effect as a verdict of a jury.
The judgment of the court in such a case must include the principles of law that I as the judge apply and the findings of fact on which I rely. In Fleming v The Queen (1998) 197 CLR 250 (at 262-3; [28]) the High Court stated that, in respect of similar legislation of New South Wales, it is necessary for the judge to expose the reasoning process linking the principles of law with the findings of fact and justify the process and, ultimately, the verdict that is reached.
Section 68C also requires me, as the trial judge, to take into account any warning, direction or comment in considering my verdict that any Territory law requires to be given or made to a jury in such proceedings.
There are certain general directions that I must take into account. These are fundamental rules designed to ensure that an accused person receives a fair trial according to law. See R v DM [2010] ACTSC 137 at [8]-[9]; R v Shevlin [2013] ACTSC 88 at [10]-[20]. The directions I take into account are as follows.
As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offences charged.
If the accused does adduce any evidence which is consistent with his innocence, he does not have to prove it; it is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offences unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt.
The accused is presumed by law to be innocent of each of the offences unless and until the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt. The accused then loses the presumption of innocence and I must find him guilty.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of any offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.
I must not be prejudiced against the accused because he is facing seven charges. Although they are being tried together as a matter of convenience, I must consider each separately and give a verdict on each separately.
If I am satisfied that there may be an explanation consistent with the innocence of the accused of any charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find the accused not guilty.
I must determine whether each of the witnesses is a reliable witness, that is whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally, but I may use my common sense, experiences and wisdom in assessing the evidence.
I also note that, as this was a sexual offence, s 43 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) required that the complainant, FKM, give evidence by audiovisual link from a place other than the courtroom as she did. Under s 46 of that Act, I am required to warn the jury that it should not draw any inference adverse to the accused in the proceeding from the fact that the evidence is given from a place other than the courtroom. I give myself this warning.
I apply these directions and follow the rules I have set out above.
The evidence of the complainant
In 2008, the complainant, FKM, was living in a house at Holt with her five children then aged about twelve, nine, six, four and twenty-two months.
FKM and the accused had known each other since they both attended high school. They had formed a relationship in 1995 and had been living in the house at Holt for about ten years.
FKM agreed in cross-examination that both she and the accused abused alcohol, often drinking to excess, though FKM suggested that she more often used to smoke marijuana.
At some stage, the couple separated because FKM had had an affair with a friend of the accused. At times, the accused would live with his parents, with whom he had a close relationship. Largely because of their youngest child, they were trying to effect a reconciliation in the months before the incidents the subject of these proceedings, however, and from about late August 2008, the accused had returned to the house at Holt and was living there.
Although it was the second incident reported, FKM says that the first incident of which she made complaint occurred on 14 November 2008 (the first incident). She says she visited a neighbour, Ms Florence Little, at about 5.00pm. She said they shared a bottle of champagne and she stayed there for about three and a half hours. She said that she did not think that she had anything to eat that day.
She said that while she was at Ms Little’s place, the children came over to tell her to come home because it was getting late and “daddy was getting angry and they were getting hungry”.
She said that she returned home between 8.30pm and 9.00pm. There was a “bit of awkwardness” and then she and the accused started to fight. She could not precisely recall how it started but thought she may have slapped one of her sons for doing something silly, like spilling some sauce. She said that she was “mouthing off” because of the alcohol she had consumed and that it “just escalated”. She thought the fight also probably included mention of the affair she had had with the accused’s friend.
She said that she and the accused started to get violent with each other, probably slapping and punching, and she thought that she kicked the accused. She said the fight escalated and that she said something which made the accused angrier. He punched her in the stomach and then he dragged her down the hallway by her hair to the bathroom.
She said that the accused “flung” her into a corner of the bathroom, took her pants off and said he was going to rape her. He took out his penis and put it in her vagina. She said that because she was in the corner of the bathroom, it happened in a kind of awkward way. She said the accused held her down with one of his hands.
FKM said she screamed at him to stop but he continued for about fifteen minutes. The accused ejaculated in her vagina and then got up and left. She thought he may have gone to the toilet. FKM said she had a shower and then went out to her children and fell asleep with her youngest one, the baby.
The next morning she spoke to the children, because her second eldest had seen her being dragged down the hallway. He gave her a clump of hair which he had found on the floor. When the accused arose, she told him to leave the house. It appears he did not do so.
The second incident of which she complained started on 21 November 2008 (the second incident). The accused, FKM and the two youngest children went down to the coast. The other children were being cared for by the accused’s mother. The evidence of this event was principally adduced in cross-examination of FKM.
FKM says that at about 10.00pm, the accused demanded that they all go to the coast. FKM said that she told the accused she did not want to go; it was late and the children were in bed; she would take him the next day. The accused, however, insisted and FKM got the children out of bed, packed nappies and some clothes and drove to the coast and stayed at a motel or hotel in Bateman’s Bay.
In cross-examination, FKM said that on the drive to Bateman’s Bay, the accused played loud music and said:
he’d start bashing me in the side, my arms, my legs, my head, again, all the way down to Bateman’s Bay, pretty much.
This was even though she was driving the car with the two children in it. She said he punched her on the left cheek and her left ear and above it. She said he punched her a lot of times, probably about ten or fifteen times. The injuries she said she received included lumps but she did not draw attention to the lumps to the female attendant at the motel where they stayed. She says she mentioned them to the doctor she saw at the Winchester Centre later on 22 November 2008, though not telling her how they were inflicted. This was, however, not noted by the doctor.
She said the punching happened in two episodes, one not far past Queanbeyan and the other “just before the mountains”. She said she did not know why the accused punched her; “he just got angry. He was drinking”.
She said that after she had put one of the children to bed and was breast-feeding the other, the accused came over to her, unzipped his trousers and tried to force his penis into her mouth. She says she bit him and that made him angry so that he slapped her around, pushed her onto the bed, took her clothes off and “started raping me while my little baby’s there.” She said she had to put the baby’s head into her shoulder so he could not see what was happening. She said the accused had penile-vaginal intercourse until he ejaculated.
FKM says she “passed out” but later got up, went to the other bed, a single bed, fed her youngest child and slept there with him.
The next morning, 22 November 2008, she awoke, showered, got the children ready and was preparing to leave without the accused but he woke up and got into the car and they drove back to Canberra. They stopped at some shops to get a six-pack of beer which the accused drank on the drive back to Canberra.
She said that while the accused was buying the alcohol she considered driving away, but did not do so, even though she was the driver of the car. She said she was afraid of what the accused would have done when he got back to Canberra, but this had not apparently concerned her earlier. The accused was only away for about five to seven minutes.
When in Canberra, she said that they stopped at a friend’s place where the accused obtained some marijuana for FKM and they then went back to the house at Holt, where they arrived at about lunchtime.
She said that the accused had wanted to get his computer but once they got to her house at Holt, he forced her out of the car and into the house by threats, although she could not say what the threats actually were.
She said that for the rest of the afternoon the accused would not allow her to leave the house.
FKM said that the accused continued to drink during the afternoon and relations soured between them as he became moody, including “extremely angry”. FKM felt that the accused was intimidating her during the afternoon.
Although FKM said that the accused would not let her use the telephone, she said she was told by the accused to telephone her mother and cancel the arrangements for her to visit and to have the two youngest children for the night, which she did.
She said that, later in the evening, while the children were watching TV, the accused wanted her to go into the laundry “to have a smoke”. She said she tried to co-operate with him because of his anger. In the laundry she tried to calm him down but she said “he kind of snapped again and started punching holes in the walls”. She said he then grabbed her and pushed her against the wall.
She said he had mood swings, at times talking civilly with her and then abusing her calling her offensive names.
She said they were in the laundry for about half an hour and then the accused grabbed her and took her into the bedroom when he told her to take her clothes off. FKM says she remonstrated with him but he became angrier and she did what he told her to do. She removed her jeans and underwear and the accused removed his pants and underwear, pushed her onto the bed, where she curled up in a foetal position, and then he had penile-vaginal intercourse with her from behind. He also pulled her hair. FKM says she was struggling, begging the accused not to have sex with her and the accused was grabbing her around her stomach area and up to her arm.
FKM said that the accused also inserted his fingers into her vagina or into her anus. She said he then inserted his penis into her anus and his fingers into her vagina. At the time he continued to abuse her verbally. This is the third incident.
She said that the accused ejaculated and stopped the sexual assault. FKM then went out to her children who, she said, were screaming. As there was no handle to her bedroom door, she broke one of her gymnastics trophies to open the door. The accused had “passed out” and was snoring.
FKM says she called her mother and told her what had happened and she told FKM to go to the police, which she did. She arrived at the Belconnen Police Station at about 7.20pm and made a complaint of rape. She spoke to a police officer, whom other evidence showed to be Constable Lian Nicholson, and who recorded the interview with her on tape.
She was then taken to the Winchester Centre where she was examined by a medical practitioner, which other evidence showed to be Dr Catherine Sansum.
She said she was with Dr Sansum for about an hour, which she said included taking some photographs of her neck and face because of bruising where she said she had been slapped. She said that while the accused was having sexual intercourse with her he was slapping her and choking her. She also said that the events happened about an hour before she went to the police.
After the medical examination, she spoke to Detective Senior Constable William Freeman. He interviewed her and recorded the interview on tape. FKM said that this was the only conversation she had with Detective Senior Constable Freeman, though she had seen him subsequently “a few times”. Later, however, she changed from this position when she said she had had another conversation with Detective Senior Constable Freeman, about the trip to the coast.
She said that she knew police officers were going to her house at Holt to seek evidence and she provided them with a key to the house, giving them permission to enter it.
After the interview, she “went home to put [her] cat in with her kittens” and went to her mother’s place to stay for what she said was a couple of weeks. Since then, she has, a little after these incidents, resumed her relationship with the accused’s friend.
She said that she spoke to Ms Little the next day to ask her to look after her cats. Ms Little had seen the police there so FKM said that she told her what had happened including about the acts of non-consensual intercourse which she described as “rape”.
FKM was cross-examined extensively. I have referred to some of it earlier as it was a convenient part of the narrative of that point.
FKM agreed that she was seen by Dr Sansum at about 9.45pm on 22 November 2008 and that Dr Sansum took notes of what was said and of the examination she conducted. She said that Dr Sansum also took some photographs but she has not seen them, nor the medical report Dr Sansum prepared.
She also agreed that she had spoken in person to the Crown prosecutor three times in the two months prior to the trial. On each occasion, another person was present and taking notes and FKM says that she saw a typed document.
FKM agreed that when speaking to Constable Nicholson and Detective Senior Constable Freeman she recounted the events of both incidents in Canberra, on 14 (the first incident) and 22 November 2008 (the third incident). The events, she said, were fresh in her mind.
FKM also agreed that in the late afternoon of 22 November 2008, she smoked some marijuana through a bong, a filtration apparatus used for smoking marijuana, tobacco or other herbal substances, similar to a hookah, though generally smaller and more portable. She said, however, that by the time she went to the police, she was not under the influence of marijuana.
She was asked about her relationship with the accused and, after referring to the problems they had had after her affair, she said that the accused went to live with his parents with whom he enjoyed a good relationship and whose residence was always available to him.
She said that on the accused’s birthday in August 2008, she telephoned him and they resumed their relationship. She agreed that after his arrest, she continued to have contact with him, even though this was in breach of bail conditions that had been imposed on the accused and the conditions of a personal protection order to which he was subject. She admitted that this contact included “many hundreds” of text messages, a letter she wrote to him and a number of telephone calls, those communications continuing up to the day before the trial.
FKM said that she did not speak much about the proceedings in the communications and she did not mention her visits to the Office of the Director of Prosecutions. She said that the accused wanted her “to drop the charges”. She said she told him that she would prefer not to come to court but denied that she was prepared to tell lies in the proceedings. She said she told the accused that she could not remember very much.
She said that after she had been to the police, the first conversation she had with anyone about the incidents was with her mother when she was driving over to her place afterwards.
She said that she told her what had happened that night but did not say anything about what she says happened on 14 November 2008 (the first incident).
FKM says that she told Constable Nicholson that there had been three occasions on which she had been sexually assaulted. She said that there were the occasions in the house in Holt on 14 (the first incident) and 22 (the third incident) November 2008 and the occasion at Bateman’s Bay on late 21 or early 22 November 2008 (the second incident).
She described an incident to Constable Nicholson that she said happened on late 21 or early 22 November 2008, which was the second incident. In her account, however, she did not say that it happened in Bateman’s Bay. She did not mention, either, that she was breast-feeding her youngest child, either, at the time she says she was assaulted.
She did not remember when she first mentioned that the second incident occurred at Bateman’s Bay. She said she found it hard to believe that her first mention of it was at the committal proceedings and thought that she had told either Constable Nicholson or Detective Senior Constable Freeman on the evening of 22 November 2008 when she first reported it. The evidence of those officers contradicted this evidence.
FKM had read at least part, if not all, of the transcripts of her interviews with police and agreed that in what she read there was no mention of the visit to Bateman’s Bay.
She also agreed that she did not tell Dr Sansum that the second occasion of sexual assault occurred at Bateman’s Bay. She said, rather oddly, “I kind of forgot”. She agreed also that, indeed, she gave Dr Sansum and Detective Senior Constable Freeman a completely different version of another event that she said happened in Canberra on the night of 21 and the morning of 22 November 2008. She said that she did not mean to tell a complete fabrication and that they were not lies because “I wasn’t intentionally doing that”.
She said that she did not tell Dr Sansum or Detective Senior Constable Freeman about the events of the trip back from the coast after the second incident, although she thought that at some stage she had told Detective Senior Constable Freeman, with whom she now said that she had another conversation at the Winchester Centre when she went there with the accused’s friend with whom she had resumed her relationship. That meeting was, she thought about two weeks after her first visit.
This second meeting, she said, was arranged by telephone but FKM could not recall who arranged it. She said that she told Detective Senior Constable Freeman that she had forgotten something which she should probably tell him.
She attended with the accused’s friend and with four of her children. She says that she then told him about visiting the coast and the second incident, that it occurred at Bateman’s Bay. She did not think that her conversation was electronically recorded but that there was another man in the interview room typing notes on a computer. She could not remember being shown any notes or being asked to confirm their accuracy. She said that she had never seen any notes of this meeting. No notes were produced following a call by Mr K Archer, counsel for the accused.
FKM said that the meeting lasted for about forty minutes. She said that she told the police officers at the meeting that the second incident had happened at Bateman’s Bay. She said she “sort of blurted it all out”, and then Detective Senior Constable Freeman asked her questions.
She said that she did not think she mentioned the visit to Bateman’s Bay to anyone from the office of the Director of Public Prosecutions.
She also said that she had conversations with police face to face after the committal hearing. This was, she thought, with Detective Senior Constable Harris who was working with Detective Senior Constable Freeman. Detective Senior Constable Harris and another male police officer, she said, came to her house. They wanted permission to access her hospital records concerning a miscarriage and curettage which they had learnt about as a result of something that her son had said. She thought that the other unidentified police officer made notes.
FKM was also taken to her evidence at committal. In her evidence in chief she described the second incident and she agreed that she initially gave a description of non-consensual fellatio and anal intercourse occurring at the house at Holt. She said that she had had counselling provided by Victim Support ACT “to forget all this”.
She agreed that, in the Magistrates Court, she had said in evidence that she was at her house in Holt until the early hours of the morning of 22 November 2008. It was in those early hours, she said, that she was subject to sexual attack, being the second incident.
In evidence before me under cross-examination she said that the second incident did not happen in her house at Holt; she said it happened at Bateman’s Bay, though she had not described the sexual intercourse there as anal intercourse; indeed, she expressly said that the accused had put his penis in her vagina and “had sex with me unconsentedly [sic] again until he came”. She said that the accused ejaculated into her vagina.
She agreed that what she had told the Magistrates Court was incorrect. She said it was not a lie because “I was confused as to where”. There were, however, other inconsistencies, for she told the Magistrates Court that the incident had commenced in the laundry. Her evidence was:
... where did the argument start? --- In the laundry. Because as I said I just put the children to bed and I didn’t want them to wake up to bullshit again, I mean sorry and fighting and stuff. So I went into the laundry and I just calmly talking to him and he was going off at me and he went to punch me in the head underneath my head and his hand went straight through the wall. And then he got angry at something else and then hit the wall and then he got me by the shoulders and rammed my top-half through the wall.
And this was in the early hours of now what the Saturday morning, is that? --- Yes.
From there where did you go? --- We ended up in the bedroom where he put it in my bottom and ejaculated.
FKM then seemed to suggest in cross-examination that there was another incident in the laundry also on late 21 or early 22 November 2008, but I cannot say certainly as her evidence on this was quite confusing.
It was then suggested to FKM that she was now saying that she was anally assaulted by the accused in the second incident. She agreed that she was saying that and, contrary to what she actually said in evidence to me, said that she had given that evidence earlier. Her explanation was that it was “not easy to remember. I’m sorry. I’m pretty stressed”.
She then said that she had told the Crown prosecutor that she had been anally assaulted but was not sure whether she told her that it happened at Bateman’s Bay. She then said that she was “pretty sure I just said raped”.
FKM was then taken to what she had told Constable Nicholson about the events of the afternoon of 22 November 2008. Her account to him was as follows:
Everything was just fine actually. He seemed to be in a good mood for a second and I was sitting on the couch and I was feeding my little man. I still breastfeed. And he just got angry and he came over and he picked the couch up so I quickly got off it because I had him in my arms and then I put him down and then he just said get in the fucking room, get in the fucking room now and he pushed me towards the room. And I was like no [RC] please don’t do this and just pushed me on the bed and shut the door. Like he was shouting and smacked me around calling me names again and, yes.
This was, again, significantly different from the account of the events she gave before me in her evidence in chief. She agreed that she did not say this in her earlier evidence.
She later in cross examination gave an account consistent with what she had told police and inconsistent with the evidence she earlier gave before me. Indeed, she said now that the mood swings she had described exhibited by the accused were in the car and that the assault took place very shortly after they had gone inside the house after returning from the coast. She made no mention of any activity in the laundry.
Again, she told Constable Nicholson and me that the event happened shortly before she went to the police station; she said 5.30pm to 5.40pm to Constable Nicholson and, to me, about an hour before she went to the police station. She had said, however, that they arrived home from the coast at about 12 noon, so, on the most recent version in her evidence, the incident must have occurred shortly after noon. She did say that she was so traumatised by “everything” that it was “all just a big fuzzy mess”.
FKM was not sure whether she spoke to Dr Sansum about the second incident. She did tell her of an incident of penile-vaginal penetration and penile-anal penetration. She did not know if she referred to digital penetration. She did not remember telling Dr Sansum that it happened at home when the children were asleep and agreed that to have told her that would have been incorrect. It was, however, suggested to her that she did tell Dr Sansum that the children were asleep. She did not know and said that she “was traumatised. It was a week full of nightmarish shit”.
She also said that at some stage on the afternoon of 22 November 2008, the accused had a knife; she described it as a kitchen knife, one of her kitchen knives. She apparently told Detective Senior Constable Freeman that the accused threatened her with a knife. She agreed that she told Dr Sansum it was a bread knife. She said in cross-examination that she could not recall what he actually did with the knife. She said, however, that the accused also threatened to kill himself. She said he pointed the knife at her at one stage. She could not say how close the knife came to her, but it was “pretty close ... within a foot”.
She did not remember whether she gave Detective Senior Constable Freeman any details about the knife. Indeed, when it was put to her that she did not tell him about a knife at all, she simply said she did not know.
FKM also said that on the afternoon of 22 November 2008, she only took off, or had taken off, any clothes in the bedroom.
She said that, when she left the bedroom after the accused “passed out”, she did not dress but used washing that was in the living room to reclothe. However, she then said that she had on the same clothes that she had been wearing before the assault when she saw Dr Sansum.
She was asked for details also about the physical assaults in the bedroom. She said she was slapped multiple times but could not recall how many. They happened, she said, before the sexual penetration but could not recall if it happened at the same time. She said the accused choked her by holding her down by the neck. She thought she was on her back or on her side.
She was taken to the evidence about the clothes both she and the accused were wearing and the incident itself. The transcript of what she told Detective Senior Constable Freeman is as follows:
And did you both have tops on? Well he brought mine up and my bra and my bra as well.
He exposed your breasts? Yes.
...
What sort of things was he doing? He wasn’t as bad this time it was just like poking. He poked me of, like, once in the chest and once in the leg. Yes and one slap around this side of my head otherwise he was just in and out by causing as much pain as possible I think. Like he’d go in he’d hump a few times and he’d take his doodle out and then he’d put his thing back, his penis in, like he’d go to ejaculate but didn’t want to so he’d take it out and play with me again and then put it back in.
FKM said also that the accused was threatening to kill himself during the afternoon. She was “pretty sure” she told police about that during the interview on the evening of 22 November 2008.
She was also unsure about whether, in the third incident, the accused asked her to take her jeans off or pulled them off. She thought he told her to take them off. She had told me that she took off her jeans as asked. She recalled saying at committal that the accused “ripped her clothes off” but considered that was in relation to the first incident, though the transcript to which reference was made seemed to place it in the third incident.
It was put to FKM that she said at committal that she had been sitting on the couch feeding her baby on the afternoon of 22 November 2008 when the accused took the baby from her and “ripped [the baby] off my breast and threw him on the other side of the couch”. She agreed to that version even though this was different to the version she gave in examination in chief.
In cross-examination she denied that the accused had used a condom but agreed that in one of the photographs that were tendered before me there was a view of the toilet pan in which could be seen a plastic wrapper named “Durex” which she agreed was a condom wrapper but she said she did not know how it got there.
FKM was also asked about some clothing shown in the photographs in the bedroom of the children. These included the jeans that the accused had been wearing that day, a shirt or underwear which could have been the underwear that the accused had been wearing.
FKM was then cross-examined about the first incident.
She agreed that she was badly affected by alcohol by the time she arrived home. She said she had more of the alcohol than Ms Little. She did not recall whether they shared more than one bottle of champagne.
She agreed that the laundry was the place where the accused would smoke and drink alcohol and where she would smoke marijuana so as not to do so in front of the children.
FKM also agreed that, with the resumption of the relationship with the accused, they had resumed a sexual relationship.
She said that while the accused and she were in the bathroom, where she said he was sexually assaulting her, the children were in the bedroom except for the eldest who was in the lounge room, but possibly with the next two children.
She agreed that her evidence was that she had been punched in the stomach before he dragged her into the bathroom. She said that she thought that she was only punched once and that was the only act of physical violence. She said it sent her “flying on [her] butt”. She did not recall saying to Detective Senior Constable Freeman that the violence went on for half an hour. She was taken to a passage in the transcript of that interview with him in which she said that there was physical violence before “the rape” for “about half an hour”. The transcript shows that she described it as “punching, choking, slapping, pushing her over”. She said she had “a bit of hair ... ripped out and bruises around [her] neck and on [her] arm and under [her] arms and stuff”, though they had faded by the time of the interview.
She was asked some questions about how the incident in the bathroom physically occurred, in particular, how the accused is said to have undressed her. She could not recall if she had shoes on and, if so, whether they were taken off first. She said she was kicking while the accused was trying to take her jeans off. She was quite cramped up in the corner of the bathroom, with her neck “all cramped up” and lying on her side. She said that the accused slapped her on the face and called her names. She said that she was in a foetal position and that the accused penetrated her from behind. She also showed on the sketch of the layout of the house how she was lying in the bathroom. It appears to me to be physically difficult to effect intercourse in this position.
She said that she was slapped on the left side of her face and agreed that it would have been impossible for her to be hit on the right side of her face. She agreed that she had, however, said at committal that she had been hit mainly on the right side of her face. She suggested, however, that she was turning around, trying to get up, maybe even trying to bite the accused.
She could not recall any other violence, such as kicking or punching. She did not recall saying at the committal that she had been choked but, when taken to the relevant passage in the committal transcript, agreed that she said she had been choked “to the point where I thought I was going to black out and I couldn’t breathe”.
FKM was also asked some questions about the trip to Bateman’s Bay and what she had told police. She agreed that she had said to me in evidence that she had told Detective Senior Constable Freeman about that trip before the committal. She was, however, taken to a passage in the transcript of the committal proceedings where she said:
Sorry, what Friday night. I totally forgot about that. I didn’t ever mention that to Bill Freeman or anything until you just mentioned it, that I totally forgot.
She was also asked whether she had said in examination-in-chief that she was pregnant at the time she was punched during the first incident. She said she had said this, but it does not appear to me that she did. She said that she could not recall if she was pregnant. She agreed that she did not tell Dr Sansum that she was pregnant.
She said to the Magistrates Court at the committal that, at the time, she was pregnant with the accused’s baby and then said:
So I didn’t want to have the baby so he punched me in the belly which sent me flying and also killed the child. And after that he had – after he had done that he grabbed me by the hair at the top of the had [sic] and dragged me up the hallway where he put me into – he threw me into the bathroom.
She said that she was punched in front of her eldest child. She said that she was pregnant at the time. She also said that, as a result of the punch, the foetus was killed.
She was then asked further questions about the third incident. She said that the acts of vaginal and anal penetration went on for about an hour and that it happened at various places in the bedroom. She was asked whether lubricant was used and could not recall.
She acknowledged that there was lubricant in the bedside drawer and, after being reminded of that agreed that she thought lubricant had been used for the acts of anal penetration. She denied that she got it out of the drawer.
Although she gave evidence-in-chief of digital penetration of her vagina and anus, she did not give that evidence at committal. Indeed, she gave the following evidence-in-chief to the committal:
So, he put his penis in your vagina and also anus, did he put anything else in your vagina or your anus? --- No.
She also told the committal proceedings that the accused ejaculated twice, once in her vagina and once in her anus. She could not recall where he ejaculated first and whether he lost his erection between the two occasions. She told Dr Sansum that he only ejaculated in her anus.
She was also asked further questions about the position of the accused and said that he was on top of her at times when he was penetrating her. She said, too, that when the accused was trying to remove her jeans, she was struggling vigorously. She did not recall exactly what she was doing, except that she was trying to get away.
She was also unable to describe how the accused was able to place his fingers in her anus when his penis was in her vagina and vice versa.
She resiled from the evidence that she had earlier given that the incident happened shortly after they arrived back from the coast. She said that they “were fighting a lot more before it happened”.
She was then referred to the first incident again and agreed that two of the other children saw her slap one of the children. She said she did not recall a time during that day where she threw dishes or a dish at her eldest son but did not deny it.
She said that on the day she did not feel drunk though she was “pretty intoxicated”. She did not recall the accused and her eldest son expressing anger at her hitting one of her other sons. She did not deny it.
She agreed that there was a fight. She had already given evidence of kicking the accused but agreed that they both traded kicks and punches. She denied that she and the accused went to the laundry, saying that they definitely went to the bathroom. She denied that the accused punched the wall in anger, causing a hole or the enlarging of an existing hole. She denied that they smoked cigarettes in the laundry, recovered their equilibrium or that they smoked some marijuana.
She denied that one of the accused’s relatives came over to collect her eldest child. She said that she did not recall that later she and the accused consumed more alcohol and then had consensual sexual intercourse in the laundry.
She rejected a suggestion that no sexual intercourse occurred at the coast. She denied drinking while driving back to Canberra or later that day.
She agreed that she had sexual intercourse with the accused on the afternoon of 22 November 2008 but was unsure whether it occurred in the children’s bedroom where the jeans were seen in the photographs referred to later (at [212]). She did not know if the accused left at one stage, went to the master bedroom and came back with some lubricant to facilitate anal intercourse but she said she did not remember that happening. Contrary to what she had earlier said, she did not recall that the accused ejaculated in her anus. She denied that they then both went back to the master bedroom where they both fell asleep.
There was some re-examination of FKM. She said that, in the children’s bedroom the accused tried to strangle himself with a bed sheet on the afternoon of 22 November 2008. She said that, though the accused initiated some of the contact with her after the incidents, she had written him a letter. She also said that when the accused was buying alcohol at the coast as they were preparing to leave, she did not drive off because she was frightened about what would happen when he returned to Canberra.
She said that she was in shock and traumatised by the whole situation that when talking to police she tried to explain what had happened but got confused.
The evidence of Florence Little
Ms Little lived across the street from FKM and knew both her and the accused.
She gave evidence about a conversation that she had had with FKM on 24 November 2008 when FKM told her that the accused had “raped and punched her and hit her through a door”. Ms Little told her that she would provide her with support if needed. Later that day FKM asked her also to feed her cats and gave her a key, saying that she would be gone for about a week.
Ms Little did feed the cats and did so in the laundry where she saw that the door was “pretty battered” and the house had a few holes in it, but the biggest hole was in the laundry door. She had been in the laundry the previous week when she saw holes in the laundry wall, but not in the door. She said that FKM told her that the accused, when he “gets angry he punches holes”.
Ms Little also gave evidence of having inviting FKM over to her house on 14 November 2008. It was for her birthday, though that was still a couple of weeks away. She said that she and FKM shared a bottle of champagne and that they were together for about an hour to an hour and a half. She said that they had “nibbles”. She said that each of them had two glasses of champagne. She said that nothing happened while they were celebrating in this way. She said that FKM left at about 7.30 pm. This was different from FKM’s account of the time they spent together.
In cross-examination, Ms Little said that FKM did not appear to have had any alcohol when she arrived and did not appear intoxicated when she left. She was sure that they only shared one bottle. This was also different from FKM’s evidence.
The evidence of A
The next witness was one of FKM’s children, whom I will call A. He was eleven at the time he gave evidence.
He gave some evidence about the first incident. He said he was at Ms Little’s house for a while (though no-one else mentioned that) but did not want to stay there so he came home, sat on the couch and watched TV. He was unsure where the accused was; he thought he may have been at Ms Little’s place or home with him and the other children.
He said that he and the accused went to the shops to get dinner at about 6.00pm. He said that FKM came home “in between 9 and 6”, after he and the accused had returned from the shops. He said that she was drunk when she arrived home. He said that FKM became angry with his younger brother. He said that his father told FKM to settle down and she then apologised to the younger brother.
He said that after that they watched some movies and went to bed. He said it was all quiet and he was about to go to sleep but FKM and the accused began fighting.
He said that the accused got drunk and the fighting went on so that he and the other children could not go to sleep; they had to stay up and were “frightened and scared”.
He said he did not see the fighting until there was some violence. He said the accused was angry, mad and drunk. He said FKM was dragged up the hall by her hair and on the way she knocked the TV over.
He said that as she was being dragged up the hall, she was holding her baby in her arms. He said she handed over the baby to her eldest son and then she and the accused went into the laundry where he described screaming and yelling with FKM crying. He said he could hear the accused threatening to kill the kittens. He thought they were in the laundry for three or four hours. Then all went silent and he went to sleep. He also said that on that day FKM had told the children that she was pregnant.
He awoke the next morning and later saw FKM. He said she was “just frightened and scared”. He asked her whether she got any sleep and she said “No”. He said she had “pale skin and like really red eyes”.
In the Crown opening of the case, it was stated that A showed FKM a clump of hair that he had collected from the hallway the night before. No such evidence was given by A.
In cross-examination he said that he did not see his mother hit his younger brother but then said that when she got mad with his younger brother she smacked him.
The evidence of Meryl Patricia Smith
FKM’s mother was Meryl Patricia Smith. She gave evidence confirming the relationship between FKM and the accused.
She said that between 7 and 7.30pm on 22 November 2008, she received a telephone call from her daughter who told her that the accused had been physically and verbally abusive, had dragged her down the hallway by the hair, slammed her into the walls and doors, making holes in them, and taken her into the bedroom and violently raped her. Ms Smith said she told her to get herself and the children to the police station.
She next heard from FKM early the next morning, an hour or so after midnight when FKM told her that she had finished at the police station and asked to come over. She arrived with the two younger children. She looked “a total mess”, white in the face, shaking all over, stuttering and totally overwhelmed by the tests and what she had endured.
FKM stayed with her mother for one or two nights and went back to the house at Holt on about the third day. This was not what FKM had said in evidence.
The evidence of Constable Lian Nicholson
Constable Lian Nicholson confirmed that FKM came to the Belconnen Police Station and saw her at about 7.20pm on 22 November 2008. Constable Nicholson had little independent recollection of the evening, though she did recall that she spoke to FKM in an interview room and that she recorded the interview she had with her, during which she said that she had been assaulted and raped by her partner.
The evidence of Detective Senior Constable Freeman
In November 2008, Detective Senior Constable Freeman was attached to the ACT Policing Sexual Assault and Child Abuse Team (SACAT). He was recalled to duty on 22 November 2008 with Detective Senior Constable Michael Harris to speak to FKM.
He spoke to FKM and, presumably, obtained details from her about the incident earlier that evening. He was given the tape recording of the interview between Constable Nicholson and FKM but he did not listen to it at that time.
He obtained from FKM the keys to her house and her consent to police entering it. He then conducted a briefing with Detective Senior Constable Harris, Detective Constable Greg Adams and Constable Mark Rowswell. They were to go to the house in Holt and see if there was any relevant evidence then have a forensic examination of it and take photographs.
He then arranged for FKM to be examined by Dr Catherine Sansum and, after that, he was handed a copy of the Medical Examination Booklet completed by Dr Sansum and he spoke again with FKM and interviewed her, recording the interview on tape. The interview, he thought, lasted for about two hours. He had not by that time read the Booklet he had received from Dr Sansum. He then obtained a pair of blue jeans that were in her car and also seized the clothes that she had been wearing when she arrived at the Winchester Centre, namely a “pinkish red T-shirt” and a black, white and blue bra.
Later in the early hours of Sunday 23 November 2008, he attended at the City Watchhouse with Detective Senior Constable Harris where the accused had been taken; he had earlier been arrested. He seized some of his clothing.
Detective Senior Constable Freeman interviewed A the next day and that interview was also recorded on tape. It probably took about an hour to an hour and a half.
On 25 November 2008, he went to the house at Holt again and looked for a clump of hair that he said A had mentioned to him; he could not locate any. He also took some photographs of holes in the laundry. He produced the photographs which showed holes in the laundry walls. The door was also partially but substantially visible in the photographs. There were no holes to be seen in the door.
On 20 February 2009, he conducted a forensic procedure by means of a buccal swab on the accused.
He was asked about FKM’s presentation on 22 November 2008. He said:
She appeared very tired, initially that was sort of struck me, very tired. A little bit I suppose I’d say worn out. She obviously had been through a bit of an ordeal. She wasn’t crying at the time, I think, you know had a bit of time with the other police and things so I didn’t see her like that. But just very tired and worn out. It looked like she’d been through an ordeal, was sort of my impression of her.
In cross-examination, Detective Senior Constable Freeman was taken to his notes. He had noted in his diary “Nil injuries from today”. He said that this was told to him by the police officer who had conducted FKM from the Belconnen Police Station to the Winchester Centre as well as his own observation though, of course, FKM was clothed at the time.
He confirmed that FKM had complained about three incidents, one on 14 November 2008 (the first incident), one on late 21 or early 22 November 2008 (the second incident) and one on late 22 November 2008 (the third incident). He said that she did not tell him that the second incident had occurred at the coast. He said he did not have a further meeting with FKM when she spoke about the second incident occurring at the coast; he only found out about that after the committal hearing when told by the prosecutor. He said he had no further conversations with FKM nor take further statements from her about any of the three incidents.
He was asked about the clothes he seized. The upper garments were being worn by FKM at the time he interviewed her; the jeans were collected from her car which another police officer told him had been the jeans she was wearing earlier at the time of the incident.
He confirmed that after the buccal swab had been subject to forensic analysis, he did not cause any of the other seized items to be subject to forensic analysis.
Detective Senior Constable Freeman was also asked in cross-examination about an assertion that on 14 November 2008, FKM was pregnant. He said inquiries were made and relevant medical records located.
He confirmed that he was told by FKM that the first incident had occurred in the bathroom of the house. She told him that she had been slapped at least eight times.
As to the second incident, he said that FKM told him that it started when she was speaking on the phone to the accused’s friend, with whom she had had an affair. Detective Senior Constable Freeman said that he had understood that this incident had happened at the house at Holt.
Indeed, she appeared to refer in this incident to the accused punching the walls of the laundry. He agreed that she told him that it ended when the accused ejaculated in her anus, that she went to the toilet while he went to sleep and she went and slept with the baby.
Detective Senior Constable Freeman also agreed that when FKM was directing his attention to the incident in the afternoon of 22 November 2008, he asked her “Had there been any physical assault prior to that?” and she said:
It was (indistinct) he was getting a bit like man handling me so to speak before the actual sexual assault but until he was actually raping me he didn’t hit me.
He also agreed that she told him that they were in the lounge room and then moved to the bedroom and that she said:
He sharply threw me onto the bed and told me to take my pants off, so I took them off.
He agreed that on the third occasion, there was no suggestion of the accused “ripping her jeans off”. She said that she was sexually assaulted by the insertion of both penis and fingers in her vagina and anus.
He also confirmed that FKM told him in relation to the third incident with respect to physical assault:
He wasn’t as bad this time, it was just like he poked me a couple of times, once in the chest and once in the leg.
He also confirmed that the incident ended when the accused ejaculated in her anus.
The evidence of Dr Catherine Sansum
As noted, Dr Catherine Sansum, a registered medical practitioner who works with SACAT and who has qualifications in medicine, obstetrics and gynaecology, family planning and forensic science, examined FKM on the evening of 22 November 2008.
Dr Sansum prepared a Medico-Legal Report which was tendered. She also described the process of the medical examination; it is not necessary to set it out here. She took no photographs of FKM.
She noted the following “marks or abnormalities”:
I have documented that on the right hand side of her neck there were two superficial abrasions or scratches. One was two centimetres long, the other was three centimetres long. On the left hand side of her neck there were four small discreet red areas. The next photograph [sic – it was a drawing] down, the front view, I’ve documented that she was red behind her pinna which is the external part of the ear. She was tender on the left hand side of her face. There was a reddened area just above the sternal notch, so just on the lower part of her neck and a 0.5 centimetre scab just below the sternal notch. She was tender across the entirety of the front of her neck and her voice and when I asked her if she could swallow normally she replied yes, so her voice and swallow mechanisms was normal.
And just with the four small red areas on the left hand side of her neck, can you say what those marks may or may not be consistent with? I guess it would all be conjecture as to what exactly it was but typically they’re caused by some form of force application, normally blunt force that may – pressure ...
HIS HONOUR: Pressure of fingers? That would be a possibility indeed.
Finger nails, or just fingers? Typically finger nails would leave more of a – if the finger nails were long would leave a semi circular indentation or a scratch abrasion themselves but it’s certainly possible.
She also took samples: she collected two bags of clothing, a wet and dry swab of FKM’s inner thigh, a labial swab and slide, a high vaginal swab and slide, a low vaginal swab and slide, a navel swab and slide, an anal swab and slide, a rectal swab and slide and a swab from her mouth.
She noted that FKM was not menstruating at the time of the incidents but had had a dilation and curettage after a recent miscarriage. That was noted to have been ten days prior but that she was still experiencing some vaginal bleeding.
The history taken was recorded in the Report of Dr Sansum as follows:
1. [FKM] told me that the previous Friday (14/11/2008), she had had a disagreement with [the accused]. She said he:
-dragged her up the hallway
-ripped off her pants
-put his penis in her vagina
-held her down
-slapped her across the face, head and neck
-put his two hands around her neck and choked her. [FKM] said that she did not lose consciousness, however she subsequently had a sore throat and bruising around her neck.
She said that she was too frightened to report this assault until now.
The Report does not record it, but the Examination Booklet shows later under the heading of “Physical Contact” a reference to FKM being punched in relation to this incident.
The Report continued:
2. [FKM] told me that [the accused] had sexually assaulted her again last night. She said:
-they were fighting
-[the accused] was drunk
-he was yelling and throwing things
-he threatened to take her out bush and he said he “could snap your neck like a chicken”
-he also said “I’m going to rape you bitch”
-there had been penile/vaginal and penile/anal penetration
-she believes there was anal ejaculation
-he had slapped her on the side of her face
-This had occurred at home whilst the children were asleep.
3. [FKM] told me that [the accused] had been drinking again this morning. She said she had been sexually assaulted again at approximately 5:30pm today. [FKM] told me that whilst the children were in the lounge room:
-[the accused] threw her onto the bed and told her to get naked
-“He said that he liked it so much that he was going to rape me up the arse again – and he did”
-She was told not to scream or retaliate
-She was choked with one hand
-She said that she had been threatened with a bread knife
-After, she waited until he passed out then left.
Although not recorded in her Report, the contemporaneous record in the Examination Booklet shows that Dr Sansum was told that FKM was “slapped again”.
Her Report continued:
[FKM] stated that he did not use a condom on any of these three occasions. She believes that he ejaculated vaginally with the first of the alleged assaults and anally with the last two. She stated that she had had rectal/anal and vaginal pain. There was discomfort when she passed urine. She had had bleeding from her anus overnight and today.
Dr Sansum said that she did not observe anything of the rectal bleeding externally but when she inserted a swab into FKM’s anus it appeared to be blood stained when she removed it.
She described FKM’s demeanour as “calm and co-operative. She was intermittently teary, but she was quite articulate.”
Despite what FKM had earlier said, Dr Sansum said that she did not take any photographs of FKM of any injuries on her.
Dr Sansum also noted that FKM told her that the accused waved a bread knife at her, then tried to cut his own arm and neck and that FKM told her she felt very frightened. She said also that FKM told her that the accused slapped and punched her, pulled her by the hair and grabbed at her breasts but was unsure as to which of the three incidents it referred. She also recorded that she was told the accused choked FKM and threatened to kill her. She noted she was told he said:
I’m going to kill you. I’m going to take you out back, snap your neck – snap your neck like a chicken’s.
She noted that she was told the first incident occurred in the bathroom and the other two in the bedroom and that penetration was in each case with the accused’s penis. She noted anal penetration with his penis in the second and third incidents. There was, however, no reference to FKM holding her baby or breastfeeding at the time. Ejaculation, she noted she was told, was vaginally for the first incident and anally but not vaginally for the second and third. There was no report of oral ejaculation. No condom was used but she said that FKM told her that lubricant had been used in the third incident.
Dr Sansum also recorded that she had been told that there was oral contact with FKM’s vagina in the third incident but not for the first two and no oral contact with her anus in any of the incidents. She noted oral contact with FKM’s mouth in each incident.
She also noted that FKM had changed her jeans and underwear since the third incident. She recorded that FKM told her that she had last drunk alcohol at 1.00pm when she had consumed “1 Bourbon”. She also recorded that she had ingested three cones of marijuana. This consumption referred to the period prior to the third incident.
In cross-examination, Dr Sansum confirmed that the notes in the Examination Booklet were contemporaneous; she made the notes as her questions were answered. She had only a vague recollection of the examination.
She said that FKM knew that the dilation, suction and curettage, which had been performed two days before the first incident, was required because of an incomplete miscarriage.
She said that for the second incident there was no record of digital penetration but only of vaginal and anal penetration with the accused’s penis. She said that, while there may have been digital penetration, FKM did not tell her of it.
Dr Sansum was also asked about the consequences of punching. She agreed that a punch may not produce a haematoma but that:
More repeated blows would be more likely to cause bruising or haematomas.
...
I think the more often and the more forceful the blows are you are more likely to produce visible bruising or haematomas.
She confirmed that the marks she found amounted to “redness, not a haematoma”, although she did note that it was possible “that redness and tenderness may have become bruising subsequently to my examination”.
As to the rectal bleeding was concerned, her evidence in cross-examination was as follows:
Now, so far as bleeding from the rectum is concerned, is that a common incident of anal intercourse? Consensual anal intercourse, no.
Why not? Normally with – well, the evidence that we have regarding consensual intercourse, be it vaginal or anal, is that it doesn’t inevitably cause bleeding or trauma. If there is more force or lack of lubrication it is more likely to cause trauma and bleeding.
And if people have consensual sexual intercourse which involves a bit of vigour in the anal intercourse, there’s a good chance of it causing bleeding isn’t there? I’m not going to say a good chance but certainly there is well documented cases of trauma to both vagina and anus with consensual intercourse.
And in relation to non-consensual sexual intercourse obversely there are as you have indicated on the last page of your report, cases where there won’t be observably injury by way of blood or otherwise? With consensual or non-consensual, sorry?
HIS HONOUR: Non-consensual? That’s correct. It doesn’t inevitably cause observable injury or bleeding.
The evidence of Detective Senior Constable Harris
As noted above, Detective Senior Constable Michael Harris was present when FKM was brought first to the Winchester Centre. He was also a member of SACAT at the time.
He prepared a statement which was tendered without objection.
The statement shows that he attended at the house at Holt on 22 November 2008 at about 9.55pm and located the accused there and arrested him for sexual assault of FKM. The accused, he said, shrugged his shoulders. He said he told him that he wished to question him and asked him how much he had to drink. The accused said he had had a few drinks of Bourbon. He asked him whether the accused understood what was going on as he smelt of liquor and seemed confused. The accused said, “Not really” and Detective Senior Constable Harris said “[FKM] has made an allegation that you sexually assaulted her, do you understand?”. He said the accused did not answer but shrugged his shoulders.
He later offered the accused the opportunity to participate in an interview and the accused said yes, but he had formed the opinion that the accused was too intoxicated and arranged for a medical assessment which stated that he was not suitable to be interviewed until after breakfast the next morning.
The accused was offered a further opportunity to be interviewed later in the day but was assessed as too sick. He subsequently obtained legal advice and declined to be interviewed.
In cross-examination, Detective Senior Constable Harris agreed that he participated in a search of the house at Holt. He said he could not recall searching for a bread knife.
He said that he had brief contact with FKM prior to committal. He did not question her when she brought A to the police station on 25 November 2008.
He did speak to FKM before and after the committal, by telephone for administrative purposes. He saw her again on 6 November 2009 at her house. He was not at that stage accompanied by another police officer.
This related to a possible further charge of aggravated assault relating to the death of a foetus. This was said to arise out of the allegation at committal that on 14 November 2008, FKM had been punched in the stomach by the accused causing a miscarriage. As a result, he obtained certain medical records. They disclosed that FKM consulted a doctor on 29 October 2008 when a referral was made indicating that there was an unviable foetus. That was established and FKM was referred to Calvary Hospital where on 12 November 2008 a dilation, suction and curettage was performed. The medical records were tendered.
The second issue he discussed with FKM was the visit to Bateman’s Bay. He agreed that, until the committal, FKM had never suggested to him that any of the relevant events had occurred at Bateman’s Bay. After she had told him this during this interview, however, he made inquiries of hotels in the Bateman’s Bay area but was not able to establish if FKM and the accused had stayed in any of them or identify any hotel or motel at which they may have stayed on the night of 21-22 November 2008.
Detective Senior Constable Harris also said that while FKM had told him things that he said:
Described a build up of events or a trip back from Bateman’s Bay for culminating in the offences charged back in the ACT.
She did not suggest to him that unlawful sexual intercourse or sexual intercourse without consent took place in Bateman’s Bay.
The evidence of Detective Sergeant Mark Rowswell
On the evening of 22 November 2008, Detective Sergeant Mark Rowswell was on duty as an officer in the Belconnen Crime Response Team with Detective Constable Greg Adams.
He referred to the briefing he received from Detective Senior Constable Freeman and went to the house at Holt, specifically looking for clothing, particularly a pair of underpants and some bedding.
He referred to the arrest of the accused. He described the accused as surprised that the police were there.
The evidence of Detective Senior Constable Greg Adams
Detective Senior Constable Greg Adams made a statement about the events of 22 November 2008 which was tendered without objection.
In his statement, Detective Senior Constable Greg Adams described the attendance of police at the house in Holt. He recorded that Forensic Services officers arrived later at about 10.10pm. He recorded that some items of bedding, a pair of men’s jeans and a pair of women’s underpants were seized. He drew a rough sketch of the premises and left at about 11.30pm.
The evidence of Mirelle Devine
Ms Mirelle Devine was a Crime Scene Scientist who attended at the house at Holt on 22 November 2008. Her statement was tendered without objection and she was not called.
In her statement she gave a general description of the house and described some photographs taken. She also recorded the items seized.
The evidence of Andrew Preston
Andrew Preston is a Senior Forensic Biologist employed by the Australian Federal Police. He has appropriate scientific qualifications. He prepared a report of the analysis of the buccal swab taken from the accused and the various samples that Dr Sansum took of FKM.
His report was tendered without objection and he was not called to give evidence.
His findings were:
High vaginal swab
Semen detected of which the analysis showed extremely strong evidence that it came from the accused. FKM’s DNA was also detected
Low vaginal swab (sperm fraction)
A mixed DNA profile was obtained which, when analysed, was extremely strong evidence that it came from the accused and FKM
Labial swab (sperm fraction)
A mixed DNA profile was obtained which, when analysed, was extremely strong evidence that it came from the accused and FKM
Peri-anal swab
No semen detected and only a DNA profile that could have come from FKM was obtained
Anal smear
No spermatozoa observed. No semen detected.
Rectal swab (sperm fraction)
A partial DNA profile was obtained, the major part of which could come from FKM but the other component contained insufficient information to determine an origin
Rectal smear
One spermatozoa head only was observed and semen detected.
No spermatozoa or semen was detected in the wet swab of the inner right thigh, the wet leg smear, the dry swab of the inner right thigh and the dry leg smear. No reportable DNA was observed in the wet or dry swabs of the inner right thigh.
The defence case
The defence did not call any evidence. Mr K Archer, who appeared for the accused, submitted that on the evidence of the prosecution I could not be satisfied that the Crown’s case was proved beyond reasonable doubt.
The offences
The accused was charged with two counts of an offence contrary to s 53(1) of the Crimes Act 1900 (ACT), namely of unlawfully assaulting FKM with intent to have sexual intercourse with her and five counts of having sexual intercourse with FKM without her consent and reckless as to whether she was consenting, an offence against s 54(1) of the Crimes Act.
Section 50 of the Crimes Act defines sexual intercourse, giving it an extended definition. It includes penile-vaginal intercourse and penile-anal intercourse as alleged here. It also includes digital penetration of the vagina or anus as alleged here. If the evidence of FKM is accepted, there was clearly sexual intercourse.
On the evidence given by FKM there was no consent to any of the acts of sexual intercourse. It is not necessary to consider the circumstances set out in s 67 of the Crimes Act which sets out particular circumstances where consent is negated.
As to the element of assault in the offences under s 53(1) of the Crimes Act, the assault, that is an application of force, must have been inflicted without consent and intentionally or recklessly and with the intent to have sexual intercourse with FKM. In that sense, intent means that the accused must have acted, by assaulting, to achieve the desired purpose, namely to engage in the sexual intercourse: Iannella v French (1968) 119 CLR 84 at 95.
The submissions
The Crown submitted that a significant portion of the events were not in issue, that FKM had, on her account, suffered “terrible acts of violence and humiliation” and that, although, she was obviously confused in her evidence, there was a strong consistency in the description of with what she had endured.
Reliance was placed on the corroboration provided by A, that there was no issue that sexual intercourse took place on 14 November 2008, the demeanour she displayed on 23 November 2008, the observations of injuries by Dr Sansum, the complaints made to her mother and Ms Little and the consistency of her accounts of the actual acts that are said to constitute the offences. This central position was, the Crown submitted, powerful support for the Crown case.
She likened it to the position in R v Nguyen [2011] ACTSC 25 where Teague AJ had to consider the evidence of the complainant which was said to be a central issue in the trial; thus, the credibility of his evidence was very important. He was found by the trial judge not to be generally an impressive or convincing witness. The trial judge did say, however, that “on the key issue of recognition ... I was convinced of his evidence”. That assessment, however, was reinforced by other factors, one being that there was other evidence supportive of the complainant’s evidence in that case. Another was that there was no evidence that could form the basis of a reasonable inference that there was another person who could have committed the offence.
The submission put by the accused in that case, and rejected by the trial judge, was that the evidence of the complainant was “indivisible” and that because of the unsatisfactory aspects of his evidence, the whole of it should be treated as unreliable.
The decision of the trial judge was the subject of appeal, Nguyen v The Queen [2012] ACTCA 24 where Mr Nguyen’s appeal was dismissed. The court there rejected the proposition that a witnesses’ evidence was “indivisible” (at [44]).
That is not to say, of course, that a court may not reject the whole of the evidence of a witness, but only if the whole of the evidence is so unreliable that it should be rejected.
The case for the accused was, in essence, that the evidence of FKM was unreliable and had altered, through such a number of variations, that it could not form the basis of a finding beyond reasonable doubt that the accused could be found guilty of any of the charged offences.
Consideration
There is no doubt that the reliability of FKM as a witness is absolutely central to this prosecution, as it often is in the case of sexual assault and similar offences. That does not, of course, mean that such a prosecution cannot succeed unless there is corroborative evidence; such a prosecution can result in the conviction of an accused on the evidence of the complainant alone. It has, of course, to reach the necessary standard that it proves the offence beyond reasonable doubt.
While a witness’s evidence is not indivisible, unreliability or, indeed, lack of credibility or even lying on one matter cannot be discounted in assessing the rest of that witness’s evidence. Despite such problems, some parts of a witness’s evidence may have the necessary quality of credibility or reliability that it can justify a finding to the requisite degree, even if the rest is rejected.
I have already referred to a number of matters where the evidence of FKM was inconsistent with her own evidence, particularly as it was given at committal, but also before me and was different or inconsistent with the evidence of other witnesses and with versions of the various incidents that she gave to police and to Dr Sansum. These are clearly matters of concern.
In this case, however, there were matters where the evidence of FKM was shown to be particularly unsatisfactory and strongly suggestive of unreliability. These are as follows.
Her complaint to the police officers and her evidence-in-chief to the committal hearing was that the second incident took place in her house at Holt. In cross-examination at the committal and before me, she said that it occurred at Bateman’s Bay on the south coast of New South Wales.
This was not a simple matter of confusion as to location, even though that would in itself be problematic, given that the events were less than twenty-four hours prior to when she was reporting the matters to the police. The nature of the allegations itself as first given was, in some respects, only consistent with the incident occurring at her house.
For example, she told Detective Senior Constable Freeman that the “lead up” to the incident was a phone call from the accused’s friend, with whom she had an affair. She told him that part of the events occurred in the laundry where the accused punched the walls before taking her arm and pulling her into the bedroom where he “ripped off” her clothes and sexually assaulted her.
She actually told Dr Sansum that, in Dr Sansum’s words, “[t]his had occurred at home whilst the children were asleep”. She also told Constable Nicholson that it happened at her house at Holt.
The evidence before me was quite different; it suggested fellatio while she was breastfeeding her baby and, of course, that it happened at Bateman’s Bay. She made no mention of the incident being caused by the telephone call which would have been an explanation for the apparent anger displayed by the accused.
The differences cannot be explained by confusion, in my view. They are quite different events and I am not satisfied that FKM was simply mixing up the events when describing them to the police and Dr Sansum.
Indeed, what was equally as troubling was that when confronted with the fact that she had told police of the second incident as happening at her house in Holt when she gave evidence to me that an incident at that time occurred quite differently down the coast, she then seemed also to suggest that there may have been such an incident at their house in Holt as described, an apparent fourth, but unspecified, incident though in the context of possibly before they travelled down the coast; at another point, however, she denied that.
Her initial evidence given in examination-in-chief before me did not allege any sexual assault in the motel down the coast. In cross-examination, however, she did. She said, as I have recounted above (at [38]), that the accused forced his penis in her mouth and then pulled her clothes off and had penile-vaginal intercourse until he ejaculated. Later, however, she said that he had anally assaulted her, though, despite answering some detailed questions, she had not earlier said that.
The second matter is that she said that on 14 November 2008 she was pregnant, indeed, leading to the police seriously considering and the prosecution actually including an ex officio count for a charge of aggravated assault for the punch which FKM said led to her miscarriage on the original filed indictment. It appears that she first made that suggestion of her pregnancy to her family for A gave that evidence. She then gave that evidence to the committal proceedings, saying:
So I didn’t want to have the baby so he punched me in the belly which sent me flying and also killed the child.
She then adopted this in her evidence in cross-examination before me, saying that it was the case that she was punched in the stomach in front of A, that she was pregnant at the time and, as a result of the punch the foetus was killed. This, she said was the truth.
The medical evidence, however, was that she had undergone the dilation, suction and curettage operation on 12 November 2008, just two days prior to 14 November 2008 when A said she had told him she was pregnant.
She had, also, confirmed this to police which had led a charge being preferred, which, on the finding of the medical evidence, naturally did not proceed.
The third matter is that FKM said in evidence that she had told Detective Senior Constable Freeman, prior to the committal, that she had been at the coast, Bateman’s Bay, on the evening of 21 and the morning of 22 November 2008. She gave a significant deal of evidence about that: she had gone to the Winchester Centre, a few weeks after her first interview with Detective Senior Constable Freeman. She went with the accused’s friend, with whom she had had an affair. She told Detective Senior Constable Freeman of the trip to Bateman’s Bay. There was another police officer in the room typing what she told them.
Detective Senior Constable Freeman denied that this happened. No notes of such an interview were produced. Detective Senior Constable Harris was the one FKM told of the trip, but that was after the committal, when he went to see her alone without another police officer and he saw FKM at her house. Even if FKM confused the police officers, which may be an acceptable error, the circumstances were so different, particularly as to the timing, that it becomes a matter of serious unreliability.
Following the reasoning in R v Nguyen, it could be said that these matters, while very damaging of FKM’s credibility or reliability, do not necessarily detract from her central allegations which the Crown submitted were consistently told.
Unfortunately, that does not seem to me to be the case. There were serious inconsistencies in her evidence and statements of complaint about the facts said to found the offences.
For example, there were significant differences in the descriptions she gave of the violence she said was offered to her at the first incident. In evidence, before me, she described where she was in the bathroom and how she was situated, agreeing that it would have been impossible for her to have been slapped on the right side of her face. In the committal, however, she said that she was slapped “[m]ainly [on] the right side of my face”. She tried to explain this by saying that she was “struggling ... turning around trying to get up”. This was not convincing.
She then said that she could not remember any other violence; she could not remember anything that stood out in her mind. Despite that, at committal, she said that she was choked by the accused “to the point where I thought I was going to black out I couldn’t breathe”. She said to me that she could not remember that.
As to the third incident, she told Dr Sansum that the accused ejaculated while penetrating her anus, yet the forensic analysis showed semen from the high and low vaginal swabs but virtually none in the anal and rectal swabs.
She did not mention any digital penetration to Dr Sansum despite saying to me that when he was penetrating her vagina with his penis he was penetrating her anus with his fingers or fingers and vice versa.
As noted above, there was considerable discrepancy in the timing of this incident in the evidence she gave. She said to me that the accused told her to take her jeans off, which she did, but she said at committal that he had “ripped them off”.
In her evidence-in-chief, she did not mention that, when the incident started, she was on the couch with her baby and that the accused took him off her and threw him on the couch, even though she said that later in cross examination.
Indeed, she told Constable Nicholson that when she was breastfeeding her baby, the accused had come over and “picked up the couch” so she got off it quickly and it was she who put her baby down. She said the accused had told her to get into the bedroom and he pushed her in there and shut the door.
At trial she said that the accused wanted her to go to the laundry to have a smoke so she co-operated with him and was trying to calm him down but he “kind of snapped and started punching holes in the wall”.
There were a number of other inconsistencies in the descriptions of the three incidents over time. For example, her account to Constable Nicholson of the second incident was as follows:
Well, we were just laying in bed and he just got on me and said, “I’m going to rape you you dumb slut” and he had his hands on my throat and he said, if I was going to scream or anything he’d kill me. And he did what he was doing and then he went to put it in my bottom and my hand stuck.
This was very different from the other versions that she had given.
Thus, it is not correct to say that there was a substantial or credible consistency in the description of the incidents over the various accounts that she gave. These do not then overcome the substantial deficit in her credibility created by the other matters I have mentioned.
There was some corroboration. I did accept A’s evidence that he saw FKM being dragged down the hallway by the hair. I did have photographs of the holes in the laundry walls. Interestingly, the evidence of Ms Little was actually not helpful as to the latter, for she had earlier seen holes in the walls but not in the door, a hole she saw after the first incident. As noted above (at [157]), however, there was no hole in the door.
I can and do accept that the accused was an aggressive, violent man, who was jealous and perhaps angry at the affair that FKM had with his friend. There were obviously angry, violent scenes in the house. That does not necessarily mean that this led to sexual assault.
The corroboration of events was largely as to violence. That may be accepted, but that does not corroborate non-consensual intercourse.
There was also evidence that the accused had had intercourse with FKM. There was his semen in her vagina when Dr Sansum examined her. That, however, does not prove or even corroborate non-consensual intercourse.
This is not a complete account of the inconsistencies, some of which, by themselves, would not amount to very much or simply be the inevitable fallibility of memory that does not necessarily undermine a witness’s credibility or reliability.
Here, the list was too extensive: there were problems with the complaint made to FKM’s mother which seemed to amalgamate two of the alleged incidents. There were inconsistencies between FKM’s account of her celebration with Ms Little and Ms Little’s account, there were other inconsistencies of her accounts of the incidents to various people and often with evidence given to me.
It is, of course, permissible to infer from the acts of violence that any intercourse that followed may have been non-consensual. Whether such an inference can be drawn beyond reasonable doubt depends upon the precise circumstances of each case.
In this case, where the evidence of FKM is shown to be unreliable with significant inconsistencies even in the descriptions of the acts said to constitute the offences themselves, it becomes much more difficult to draw such inferences safely.
Conclusion
Having carefully considered FKM’s evidence, I find that it does not have sufficient reliability, that there are too many inconsistencies even in the central descriptions of the sexual activity itself to be satisfied that it would be a basis on which I could find beyond reasonable doubt that the sexual assaults alleged occurred.
The Crown’s suggestion that FKM was confused by the trauma she suffered is consistent with violence alone without non-consensual sexual intercourse as well as with the allegations made. That FKM had resumed relations with the accused from August, including sexual relations, must also be considered.
I have carefully considered each count separately. There are different circumstances for each; for example, there is some support for the Crown case as to the events of 14 November 2008 in the evidence of A. Similarly, there is some support for the Crown case as to the events of late 22 November 2008 in the recent complaint to FKM’s mother and to police.
Nevertheless, I am, at the end of a careful and anxious consideration of all of the evidence, left with a reasonable doubt as to whether on either 14 November 2008 or late 22 November 2008 non-consensual sexual intercourse occurred.
In the result, the accused must be acquitted of each of the charges preferred against him in the indictment and I shall so find.
I certify that the preceding two hundred and seventy-three (273) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 2013
Counsel for the Crown: Ms S McMurray
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the defendant: Mr K Archer
Solicitor for the defendant: Legal Aid ACT
Date of hearing: 16-20 May 2011
Date of judgment: 19 July 2013
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