R v S, GJ

[2012] SADC 150

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v S, GJ

Criminal Trial by Judge Alone

[2012] SADC 150

Reasons for the Verdicts of His Honour Judge Lovell

9 November 2012

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES

Trial by judge alone.

Accused charged with one count of abduction and charged jointly with eight counts of rape involving one complainant.

Verdicts:  Guilty of Counts 1, 2, 3, 4, 5, 6, 7, 8 and 9.

Juries Act 1927 (SA) s 7; Criminal Law Consolidation Act 1935 (SA) s 48, s 59; Evidence Act 1929 (SA) s 34, s 34M, s 34CB, referred to.
Douglass v R [2012] HCA 34; R v Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438; R v Wozniak (1976-77) 16 SASR 67; R v G (1987) 45 SASR 106; R v J (No 2) [1998] 3 VR 602; R v Gae (2000) 109 A Crim R 419; R v Duell [1964] Qd R 451; R v S, DD (2010) 109 SASR 46; R v Szejnoga (1998) 199 LSJS 97; R v El Rifai [2012] SASCFC 98; R v H, T (2010) 108 SASR 86 at [47]; SASCFC 24; Douglass v R [2012] HCA 34; R v Keyte (2000) 78 SASR 68; R v Schlaefer (1984) 37 SASR 207; R v Mitrovic [1999] SASC 478; AK v Western Australia (2008) 232 CLR 438; R v Sailor [1994] 2 Qd R 342; R v H, T [2010] SASCFC 24, considered.

R v S, GJ
[2012] SADC 150

Background

1. In November 1989 J was living in Sydney. She decided to travel to Perth to visit her father. J decided to stop in Adelaide for a few days to see her sister D who at that stage was living in Adelaide. J stayed at the YMCA.

2. On 18 November 1989 J, her sister and a friend P socialised by visiting some nightclubs around Hindley Street. At around 3.15 am, J left the club and walked back towards the YMCA in Flinders Street.

3. J alleges that as she approached the YMCA she was grabbed from behind at knife point and forced into a car. She was driven to a secluded spot in the Adelaide Hills and there raped by two men. J alleges one of the men was the accused.

4. Around 6.00 am the two men dropped her back at the YMCA.

5. The accused admitted having sexual intercourse with J but said that it was with her consent.

   Trial by Judge Alone

6. The defendant elected for trial by a judge sitting alone pursuant to s 7 of the Juries Act 1927 (SA). The Juries Act is silent about any requirement for the contents of the reasons for judgment.

7. The requirement for reasons was recently discussed in Douglass v R.[1]

   [1] [2012] HCA 34.

8. In R v Keyte[2] Doyle CJ identified reasons why in his view a trial judge needed to provide detailed reasons for judgment. The reasoning of the Chief Justice was approved by Heydon J in AK v Western Australia[3] and also in Douglass v R.[4]

   [2] (2000) 78 SASR 68.

   [3] (2008) 232 CLR 438 at [107].

   [4] (2008) 232 CLR 438 at [107].

9. Although dealing with s 120(2) of the Criminal Procedure Act 2004 (WA) Heydon J stated why detailed reasons were important. He said:

   The process of having to state judicial reasoning in terms sufficiently clear, exact and convincing to pass muster in the eyes of an appellate court listening to the sometimes hypercritical submissions of counsel entails a need to be very precise in working that reasoning out. The discipline stems from the fact that the process of stating reasoning often reveals its fallacies: in the course of composing reasons for judgment directed to supporting a conclusion which seemed clear, judges often find that the opinion “won’t write”, and that a different conclusion develops. There is a legislative assumption that compliance with that discipline is not only more likely to produce justice according to law, but is a necessary precondition for that outcome. The abolition of jury trial entails removal of the safeguard to be found in the peculiar discipline of jury trial (131). The new safeguard, to be found in the discipline of having to give reasons, is a vital technique for ensuring accurate fact finding, correct inferential reasoning and sound application of the law to the facts.

10. This prosecution case is based almost entirely on the credibility of the complainant J. Detailed reasons are important in such a case.

    Legal Directions

11. As the Judge of the facts and 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 clinically and 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.

12. 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 as charged.

13. If the accused does adduce any evidence which is consistent with his innocence, as he has done here, 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 prove its case.

14. 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. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.

15. 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.

16. 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 he remains presumed innocent and I must find a verdict of not guilty.

17. 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 that the charge has not been proved to the standard of proof required by law and I must find the accused not guilty.

18. I must determine whether each of the witnesses are truthful and reliable, that is whether I can rely on the evidence that the witness gives me 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.

19. In this matter the prosecution seeks to establish guilt of the accused with a case almost exclusively on the evidence of a single witness. I must therefore exercise caution and examine her evidence very carefully in order to satisfy myself that I can safely act upon that evidence. I must approach the evidence with particular caution and only act upon it if I am satisfied beyond a reasonable doubt that it is honest, reliable, credible and truthful.

20. I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my commonsense, experiences and wisdom in assessing the evidence.

21. In this case I am asked to draw inferences from the proved facts. I accept that it is necessary to be careful about drawing inferences. I should examine any possible inference to ensure that it is a justifiable inference and I should not draw such an inference unless it is the only rational inference given the circumstances.

22. I note in this case that the accused gave evidence on oath. He was not obliged to give evidence. He had the right to remain silent in answer to the charge, leaving it to the prosecution to satisfy me of all the ingredients of the charge. I note I am entitled to give him such credit as I think appropriate for adopting a course that he was not obliged to adopt.

23. In assessing his evidence and the weight to be given to it, I am to approach the task in exactly the same way as with any other witness. It is for me to decide what weight I am prepared to attach to the evidence of the accused in the same way as it is for any other witness.

24. The accused is charged with nine offences. I must consider each count separately and consider that charge only by reference to the evidence that applies to it.

25. Both the prosecution and the accused are entitled to a separate consideration by me of each of the crimes charged. It would be quite wrong to say that simply because I found the accused guilty of one count that he must therefore be guilty of other counts. I must ask myself to each count separately am I satisfied beyond a reasonable doubt by the evidence that relates to that count that the accused is guilty of that crime.

    The Law in Relation to Rape and Abduction in 1989

26. The accused is charge with one count of abduction and eight counts of rape.

27. The law as at 1989, the time of the offending was:

    Abduction:

    Section 59 states:

    (1)     A person who takes away by force, or detains against his will, any other person–

    (a)     with intent to marry, or to have sexual intercourse with, that other person;

    (b)... (not relevant)

    shall be guilty of a felony and liable to be imprisoned for a term not exceeding fourteen years.

    Rape:

    Section 48 of the Criminal Law Consolidation Act stated:

    (1)     A person who has sexual intercourse with another person without the consent of that other person–

    (a)knowing that that other person does not consent to sexual intercourse with him;

    or

    (b)recklessly indifferent as to whether that other person consents to sexual intercourse with him,

    shall (whether or not physical resistance is offered by that other person) be guilty of the felony of rape and liable to be imprisoned for life.

    Section 5:

    “Sexual intercourse” includes any activity (whether of a heterosexual or homosexual nature) consisting of or involving–

    (a)     penetration of the vagina or anus of another person by any part of the body of another person or by an object;

    (b)     fellatio;

    or

    (c)     cunnilingus.

28. An accused is recklessly indifferent if , realising that the complainant might not consenting proceeds to have sexual intercourse with her irrespective of whether she was consenting or not. Reckless indifference in this context means that the accused realised that J might not be consenting and went ahead nevertheless with the act of penetration indifferent to whether she was consenting or otherwise.[5] 

    [5]    R v Wozniak (1976-77) 16 SASR 67; R v G (1987) 45 SASR 106.

29. The prosecution must prove that J was not consenting. I bear in mind that at all times the onus remains on the prosecution beyond a reasonable doubt to prove that S “knew” she was not consenting  or was “recklessly indifferent” as to whether she was consenting.

    Prosecution evidence

    Evidence of D

30. D is the older sister of J.

31. In November 1989 D was living in Adelaide. She had only been living in Adelaide for a few weeks. She was originally from New Zealand.

32. At that stage D was staying with a female friend P. P had a unit and D was staying in the separate bedroom on a stretcher bed.[6]

    [6]    T 12.

33. P had another flatmate as well.

34. J came to Adelaide in the middle of 1989. She was on her way to Perth. J had to stay at the YMCA as there was not enough room where D was staying.[7]

    [7]    T 13.

35. On Saturday 18 November 1989 J, P and D went to Hindley Street. They went in there about 10.00 pm.

36. D was unable to remember whether she met J in Hindley Street or whether J had come out to where she was staying.

37. D said that J didn’t really want to go out that night.[8] D said that normally J was “quite bubbly and chatty”.[9] On this night she was “quite reserved, not in the mood to go out partying”.[10]

    [8]    T 16.

    [9]    T 14.

    [10] T 14.

38. D was unable to remember how much alcohol they had.

39. At some stage in the evening J said that she was going to head back to the “YM” and she just left.[11]

    [11] T 15.

40. D said that she saw J the following morning at a Women’s Refuge. That was late that afternoon or in the evening.

41. When she spoke to J she was told that “she had been grabbed and taken up into the Hills”.[12]

    [12] T 17.

42. J said there were two men involved. D also said that J said “she begged them to use a condom and then they dropped her back near the YM”.[13]

    [13] T 17.

43. D thought that J was upset. She agreed that she had not talked in detail about everything that had happened to J that night.[14]

    [14] T 18.

    Complainant’s evidence

44. J is now 46 years of age, married and has three children. She was born in New Zealand and currently lives there.

45. In 1989 J was living in Sydney. She had lived in Sydney for two to three years. In November 1989 J decided to visit her father who lived in Perth. J described that her relationship with her father was a “bit rough at times” and it was a “good opportunity to go over and get to know him and live with him for a while”.[15] J decided to stop in Adelaide for a few days to catch up with her sister D while on her way to Perth.  J stayed at the YMCA while in Adelaide.

    [15] T 21.

46. At the YMCA she had her own room (with a key) but shared bathroom facilities.

47. On 18 November 1989 her sister D and a friend P met her at the YMCA. J initially didn’t want to go out but she was eventually persuaded to do so: she joined them in the city at around 9.00 am.

48. Over the night they went to three nightclubs. J was drinking alcohol. She had around eight to 10 stubbies over the course of the night and a “Tia Maria” just before she left.[16]

    [16] T 72.

49. J left the others because she was “bored”.[17] She said there was not much happening. J said she felt “tipsy” but not drunk. She walked back towards the YMCA, alone.

    [17] T 24.

50. J said she walked up Hindley Street, turned right into King William Street and eventually walked into Flinders Street. It was very quiet in Flinders Street. J took the key to her room from her purse as she walked towards the YMCA.

51. A car came from behind her and “pulled up” in front of her.[18] She thought it pulled up three to four metres in front of her. The lights of the car were on. The car was ahead of her at that stage. She said the car pulled up near to the kerb.[19]

    [18] T 26.

    [19] T 74.

52. J kept walking when “she was grabbed from behind”.[20] A hand was placed over her mouth and a knife at her throat. She couldn’t see the knife but felt it. She was told to get in the car. J said she did not know where the person who grabbed her came from.[21] She was “grabbed unawares”.[22] She was pushed into the backseat of the car.

    [20] T 27.

    [21] T 73.

    [22] T 73.

53. J was definite the man who pushed her in the car came from behind her. She said:

    He come from behind totally. Like I said, I was walking along, getting all my stuff ready. I had not even a minute to get to where I was going and I was grabbed from behind, totally took me by surprise. I didn’t hear footsteps, I didn’t hear anything. Before I knew it, I was grabbed. I seen the car and then I was just grabbed out of the blue.[23]

    [23] T 99.

54. J was not sure how the door came to be opened.[24]

    [24] T 74.

55. She said she was close to the “tail” of the car when it happened. She said “it happened in no time, so it was just like a few steps and then I was there”.[25] The man climbed in straightaway. J was unable to go right over to the side because “the driver’s seat was right back and there was no room”.[26]

    [25] T 28.

    [26] T 28.

56. The car took off “straightaway”. When she was pushed into the back seat she was on her knees and the person who pushed her in was right behind her. She said as “soon as he was in, the door was shut and off we went”.[27] The driver’s seat was right back so there was little room to move behind him.

    [27] T 74.

57. J stated that nothing was said once she got in the car. J said there was no talking between any of them. The driver didn’t say a word. She initially thought that what had occurred must have been a joke.[28] She then realised she was in a dangerous situation.[29]

    [28] T 73.

    [29] T 75.

58. J’s head was immediately pushed down towards her own lap.[30] This lasted a short time and then she sat up. She saw “tram or train tracks” and remembered seeing lots of lights including traffic lights. Her head was then pushed down onto B’s lap. J did not see the knife at that time.

    [30] T 76.

59. When S gave evidence he confirmed he was driving the car and that B was the passenger. Although J did not know their names I will refer to them as S and B.

60. At around that time J noticed that B had his trousers undone. At that time he had his penis exposed.[31] He pushed her head towards his penis and said “Suck it”. He told her to “Put some meaning into it”. This incident only lasted a few seconds: she sat back up.

    [31] T 77.

61. B told her to “take her clothes off”. She took her blouse off because she thought she had no choice.[32] B took her other clothes off. At this stage J started talking about being pregnant. She was crying and saying “Don’t hurt the baby”. This was not true as she was not pregnant.

    [32] T 32.

62. B said “I won’t hurt the baby” but she kept on crying. The driver (S) at that stage told her to “shut up”.[33] This was the first thing he said.

    [33] T 32.

63. J also told them that she was feeling sick. She said “I feel sick” and asked if she could put the window down. By this time she was nearly naked: she still had her skirt on.

64. J noticed that they were, by this time, in the Adelaide Hills as it was a winding road. As the car slowed down to take a bend she opened the driver’s side back door but B grabbed her and said “Don’t be so fucking stupid”.[34]

    [34] T 34.

65. J said she tried to escape from the car a second time. She opened the back door and S slammed on the brakes of the car, got out of the car, grabbed her by the throat and pushed her back into the car. He said “Fucking do what you are told”.[35]

    [35] T 36.

66. It was suggested to J that she never attempted to get out of the vehicle. She disagreed.[36] It was also suggested that S never said “Fucking do what you were told”. Again she disagreed.[37]

    [36] T 82.

    [37] T 83.

67. B pulled her shirt off and he began touching and licking her breasts. J was still crying and saying “don’t hurt the baby”. B then put her hand on his penis and told her to pull the foreskin back but she did not do it.

68. B then pushed her head down and made her suck his penis.[38]

    [38] T 41.

69. B began touching her vaginal area and he then put his penis into her vagina. At this time S was touching her leg: he was still driving the car. She pushed his hand away from her leg. This occurred about five times.[39] She pushed his hand away but didn’t want to say anything as she was worried that it might “make the whole situation more volatile towards me”.[40]

    [39] T 84.

    [40] T 85.

70. J complained of feeling sick again. She was still crying and saying “Don’t hurt the baby”.[41]

    [41] T 39.

71. After complaining about feeling sick, J sat up and then leant out the window. B then grabbed her and made her sit on him facing him. She was on his lap and she was kneeling.

72. He told her to put his penis in her vagina which she did. Whilst intercourse occurred she began talking to him saying things like “Have you got kids, children”? He said he had a little girl.[42] She was not sure whether at that stage they were still driving or had pulled over.

    [42] T 42.

73. J agreed that in the initial stages her contact was with B not S.[43] However, she was talking to both of them. She wasn’t talking quietly at the time and she was crying. J said that she was petrified and upset.[44] “It wasn’t like just little tears, I was crying. They got angry and I would cry, that’s when the driver said to me to ‘shut up’”.[45]

    [43] T 80.

    [44] T 80.

    [45] T 81.

74. J decided that her best chance of not being seriously hurt or killed was to be as friendly and cooperative as possible. This meant acting as though she was not upset by what the two men were doing to her.

75. At around this time S was touching her leg with his hand.

1. The car did stop and the driver (S) went down a “grass track”. J could not see any houses. It was still dark.

2. After B stopped having intercourse with her, she continued having a conversation with him and also S. J was told that S had a boy and that he had been married. She was also told that the two of them shared a house together.[46]

   [46] T 43.

3. B pushed his hand away and told him to wait.

4. S said that he wanted his turn.[47]

   [47] T 43; T 88.

5. Sexual intercourse stopped when J again said she was going to be sick and got off B and leant out of the window. S at this time talked about getting a blanket. J didn’t want to get out of the car as she was scared. They all remained in the car “and talked”[48] S got into the back seat with them. At that time he did not have his trousers on although he was still wearing socks. The car light came on when S opened the back door. J felt humiliated.

   [48] T 44.

6. S and B both began touching her. They were both kissing her and touching her breasts. Both of them were putting their fingers in her vagina. She wasn’t sure exactly how that occurred.[49] She kept talking and was told “You talk too much”.

   [49] T 88.

7. B got out of the car. S pushed her down onto the seat and put his penis into her vagina. J felt he became frustrated as there was not a lot of room. Eventually he sat up while his penis was still in her vagina. She told him that it hurt and to be careful “not to her the baby”. She asked him if he had ever had sex with anyone who was pregnant. S said “Yeah, with my wife until she was 7 months”.[50]

   [50] T 46.

8. S’s erection didn’t last so she “climbed off”. S started kissing her and then pushed her head down onto his penis. S put his penis in her mouth and had his hand on her head. This did not last long.[51]

   [51] T 46.

9. J let him know she felt sick. S decided to get the blanket out of the boot. S got out of the car and S and B were “whispering” together.

10. J said at this stage she was trying to come across “kind of carefree, easy” and said “What are youse whispering about”.[52]

    [52] T 48.

11. They got the blanket out and so she got out of the car. The blanket was put down in front of the car. All three of them sat on the blanket.

12. J said at that stage she did her best to see the numberplate of the car. They quizzed her about that and she said she didn’t know what it was. They showed her it was a Torana sedan.

13. J gave evidence that she thought there was an SS and 32 or 82 on the numberplate.

14. When J got out of the car she complained of being cold and was allowed to put her shirt on.

15. J gave a description of S and B.

16. B eventually pushed J back on the blanket and put his penis in her vagina. S was kissing her at that time. B stopped having sexual intercourse with her but then S put his penis in her vagina. She complained about “hurting the baby” and he “said something about anal sex”. She said “Oh no, oh God no”. He didn’t do it.[53]

    [53] T 52; T 90; T 105.

17. J was not sure whether S or B ejaculated. Eventually S stopped having sexual intercourse with her. They both continued kissing her and putting their fingers into her vagina. B licked her vagina.[54]

    [54] T 53; T 92.

18. Eventually, the “sexual stuff stopped”.

19. J agreed that whilst on the blanket she didn’t say “Don’t do it”.[55]

    [55] T 90.

20. J agreed that at no time did she say “No, I don’t want you to do this to me”.

21. J was asked whether she thought it was odd that B licked her vagina after S had finished having intercourse with her. She replied “Embarrassing, humiliating. Odd – I don’t think ‘odd’ is quite the right word I’d use.”[56]

    [56] T 93.

22. After the sexual activity stopped, they just kept on talking. J talked about her boyfriend and going back to Sydney.[57] B suggested that she not go back to her boyfriend and that she should go with him. She said she “couldn’t do that”.

    [57] T 94.

23. J agreed that she had more “connection” with B rather than S. However, she considered that they treated her like “a piece of meat”. S was more aggressive in his manner and actions.

24. She suggested that they go to a motel. She was talking about going to a motel simply to try and get out of the situation she was in.[58]

    [58] T 95.

25. They both said that she was “really nice” and that they liked her. J said she was trying to find out as much as she could about them. For example, the car belonged to B and he was paying it off.[59]

    [59] T 55.

26. Both of them admitted “kidnapping” her[60]. J agreed this part of the conversation, after the sexual acts had finished, was bizarre. J said she just kept talking about her boyfriend and the “baby”.

    [60] T 55.

27. J eventually asked to go and B said it was up to S. S refused at that time.

28. By this time it was getting light and it started to rain. She got back into the car and put her clothes on. She saw the knife on the floor down under the front passenger seat. She kicked it further under the seat.

29. B got into the car. He said to her that there hadn’t been a knife used. B got into the driver’s seat and told her to hop into the front seat. By this time she knew their names as Jim and Mark. Jim was the driver.[61]

    [61] T 57.

30. S agreed to get in the back seat.

31. They did not leave immediately. B and J both had a cigarette. S apparently had given up smoking. Eventually they left with B driving the car. J continued to talk to them including about all going out for coffee. B and S smoked cannabis on the way back.[62] J also had a “puff”. On the way back in the car, J talked to them about the police being corrupt.[63] She was trying to emphasise that she wasn’t going to “cause them any problems”.

    [62] T 61.

    [63] T 98.

32. They drove her back to the YMCA in Flinders Street. B suggested that he drop S off so that he could take J out somewhere. J said that she was really tired and needed to have a sleep.[64] When they arrived at the YMCA she noticed that S had been drinking and when they pulled up he vomited outside of the car.[65] She thought he had been drinking from a spirit bottle.[66]

    [64] T 60.

    [65] T 96.

    [66] T 96.

33. J and B got out of the car. B had lent J a sweatshirt and wanted it back. She gave it to him. B said “Really sorry that we had to meet like this”. B wanted to meet up again. As J still wasn’t safe she gave B her room number and phone number. They arranged that he would come back at 2.00 pm.[67]

    [67] T 97; T 98.

34. B walked her across the road. She said “it is all good”. She kissed B goodbye. J said all she wanted to do was to get into the building. S had got back into the driver’s seat and had done “a Uey” pulling up out the front. She was too scared to look at the car to get the numberplate.

35. Once J got inside the YMCA she went up to her room. She was crying. J heard a noise downstairs and thought they may have somehow got in. She didn’t know what to do. As she wanted to ring the police she just went out of her room still crying. A young man came out of his room and said “Are you alright?” She replied eventually “No I have been raped”[68].

    [68] T 65.

36. They went downstairs together and the young man rang the police for her. She said to the police “I want to report a rape”. The police arrived shortly thereafter.

37. J had noticed, while sitting in the car outside the YMCA that it was 6.10 am. She thought the police probably arrived about 6.30 am.

38. J was taken to the Sexual Assault Referral Centre where she was examined by Dr Black and various swabs were taken.

39. Photographs were taken later[69] showing some minor injuries she had suffered.

    [69] Exhibit P1.

40. On 18 August 2010 in New Zealand, J participated in a photographic identification procedure. It was accepted that she correctly identified B but not S.

41. J agreed that B eventually wanted to take her out on a date. She thought, given the circumstances, that this was delusional.[70]

    [70] T 71.

42. J said that when the police took the photographs she was nervous. When nervous she giggles.[71] She agreed that at some stage during the night she smiled.

    [71] T 78.

43. J said the whole environment in the car was “volatile”.[72]

    [72] T 79.

44. J denied that S had left the car while B had intercourse with her.[73] She was unable to say whether B ejaculated.

    [73] T 87.

45. J denied the suggestion that S was always the driver.[74]

    [74] T 95.

46. J was asked:

    QThis is not a situation where, after feeling embarrassed about having sex with two men, you have made up a story about it being a rape.

    AI find that quite insulting, quite hideous. No.[75]

    [75] T 100.

47. She denied getting freely into the car.[76] She also denied engaging in consensual sexual conduct with B almost immediately after she got in the car.[77]

    [76] T 100.

    [77] T 100.

48. J denied that there was only one act of vaginal sexual intercourse with S.

49. J denied talking to her sister later that day about begging “the men to use a condom”.[78]

    [78] T 109.

    Dr Tania Black

50. Dr Black obtained her medical qualifications in 1963. She became a member of the Rape and Sexual Assault Services from its commencement in 1977. Dr Black retired from practice in 2003.

51. On 19 November 1989 Dr Black examined J at the Queen Elizabeth Hospital. The examination commenced at 8.40 am and finished at 10.30 am. Dr Black made an assessment of her general condition, took a history, performed a “head to toe” examination and took a number of swabs. The notes and specimens were provided to the police.[79]

    [79] T 116.

52. Dr Black said that when she first saw J at the hospital J was “distressed, tearful, talked about her fear of being killed, very anxious”.[80] She took a history from J which she recounted to the court from her notes. The account given by J to Dr Black was generally, but not entirely, consistent with her evidence.[81]

    [80] T 116.

    [81] T 118.

53. Dr Black, when examining J noted a bruise on her right elbow and fresh red marks on her knees. She regarded them as non-specific injuries.[82]

    [82] T 119.

54. She did not make any note regarding injury to her throat and neck area.[83]

    [83] T 119.

55. Given the description of how she was grabbed, Dr Black said she would not necessarily expect to see any reddening around the neck area.[84]

    [84] T 124.

56. There were no injuries to the genital area. There was redness to the posterior fourchette. Such redness could occur with either consensual or non-consensual intercourse.[85]

    [85] T 120.

    Ms S

57. Ms S was formerly married to S. They lived together in about 1982/83. Initially they lived in Townsville for about six months before moving to a unit in the suburb of Paradise. They separated in 1988.

58. In the mid 80s S joined the Army and they moved to Sydney. They left Sydney in 1988 and moved back to Adelaide. Ms S was pregnant at the time.

59. During the pregnancy Ms S had sex with S. Ms S had trouble with her blood pressure and was admitted to hospital six weeks before the baby was born. She and S had sex on a regular basis until she had to be admitted to hospital. The baby was born on 9 December 1988. She and S separated about three weeks after he was born.[86]

    [86] T 129.

60. Ms S described the relationship between S and B as “very close, a very close relationship”.[87] They “seemed to follow each other what they did”.[88]

    [87] T 127.

    [88] T 127.

61. S was a heavy drinker and in 1988 was not a smoker.[89] If S went out with B he would come home drunk.[90]

    [89] T 130.

    [90] T 130.

    Kathryn Helbig

62. In 1989 Ms Helbig was a police officer attached to the Sexual Assault Unit. Her duties at that time included taking statements, organising medical examinations and assisting with the collection of evidence.

63. On 19 November 1989 at around 7.00 am police officers arrived at the Sexual Assault Unit with J.

64. Ms Helbig met J at 7.10 am. She noted J was crying and her eyes were red and swollen. She spoke to J about the procedure and examination. Ms Helbig believed she would have been given a crime report by the police officers which would have outlined the allegations.

65. Ms Helbig took J to the Queen Elizabeth Hospital to be examined by Dr Black. After the examination she returned with J and commenced taking a statement from her: the statement commenced at 11.20 am. At around 2.20 pm the police photographer took a number of photos.[91]

    [91] Exhibit P1.

    Craig Foster-Lynam

66. Detective Foster-Lynam assumed the role of investigating officer in this matter on 16 March 2010. At that point he became aware that there had been a DNA match that implicated S with an “historical matter that occurred in 1989”.[92]

    [92] T 137.

67. S was interviewed on 8 June 2010 and exercised his right to remain silent. S was arrested and a buccal swab obtained. B was arrested on 8 July 2010 and a buccal swab obtained.

68. In August 2010 a buccal swab was obtained from J.

69. In August 2010 J participated in a photographic identification procedure. She correctly identified B but not S.[93]

    [93] Exhibit P2; Exhibit P3.

70. From the material provided, Detective Foster-Lynam was unable to identify the male person who J spoke to upon her return to the YMCA.[94]

    [94] T 139.

    Agreed Facts

71. A number of facts relating to the DNA evidence were agreed.[95] Given S admitted sexual intercourse during the course of his evidence the facts agreed had little or no role to play in the determination of the case.

    Defence evidence

    [95] Exhibit P6.

    Evidence of S

72. S gave evidence. He is currently 52 years of age. He left school at the end of Year 8 and joined the Air Force as a fireman. After he left the Air Force he worked in a hotel as a driver.

73. Whilst in the Air Force he met Ms S in Townsville. They ended up getting married.

74. S agreed he joined the Army and he thought that was in 1986 through to 1988. When he left the Army he came back to Adelaide. He had been in Sydney when he was in the Army at Holdsworthy Base near Liverpool.[96]

    [96] T 142.

75. S agreed that his son was born on 9 December 1988. He further agreed that he separated from Ms S not long after the birth of his child.[97]

    [97] T 142.

76. S said that he knew B very well.

77. After S separated from his wife S remained in the Housing Trust home at Pooraka. B moved in with another man. They would often go out to hotels drinking. He agreed he was a heavy drinker at that time.[98] He would drink daily but a lot heavier on the weekends.[99]

    [98] T 143.

    [99] T 143.

78. S said that he and B would go out together quite often. They were involved in sex as a “threesome”.[100] He thought this had occurred six to eight times with B. B to his knowledge was a truck driver but worked at night driving prostitutes to various places. S said that occasionally B brought prostitutes back to the home.[101]

    [100] T 143.

    [101] T 144.

79. On the day in question S said he thought he had been at the Union Hotel in Waymouth Street with B. At that stage B owned a yellow Torana V8 SLR. He said he had been drinking “a fair amount, quite a lot”.[102] He was not sure why he was driving.[103]

    [102] T 145.

    [103] T 144.

80. The Torana had bucket seats and was a four-speed manual. It was a four door car.

81. On the way home B said “Stop, I know her, I think I work with her”.[104] He stopped the car because he saw someone walking on the footpath. He double-parked on the street as there were cars already parked on the side of the road. When he pulled up B got out of the car. At that stage S grabbed some marijuana and a pipe and started to pack his pipe to smoke it. He began to smoke it.

    [104] T 146.

82. He didn’t pay attention to what B was doing. After about three-quarters of a minute or so, B came back, opened the back door and B and the lady got in the car. When they got in the car he was asked to go for a drive. B was giving directions.

83. He noticed that once they got in the car they were “doing heavy petting and kissing and cuddling and that type of thing”.[105] The lady had not said anything when they got into the car. He did not know where he was supposed to be driving.

    [105] T 147.

84. S said he looked a couple of times in the rear vision mirror and saw that the couple were continuing to kiss and cuddle and were beginning to have sex.[106] At no stage did this lady open the car door while it was moving and try and leave. S denied that the lady was crying. S denied that he ever touched her while B was having intercourse with her in the back of the car. S denied any knowledge of a knife being in the car.

    [106] T 148.

85. S said that he was reasonably drunk but he thought he would “just drive at the normal pace”.

86. At some stage B said “Just turn next left and park in there”.[107] He stopped the car and saw that the couple were having sexual intercourse in the back. The lady was on top of B. He grabbed his marijuana and got out of the car.

    [107] T 149.

87. He eventually saw B get out of the car and grab a blanket out of the boot. B put the blanket on the ground in front of the car. The lady got out of the backseat. She was just wearing a top. The lady and B got on the blanket and S went and sat in the car. They were having sex although he couldn’t exactly see what they were doing.[108]

    [108] T 150.

88. Eventually he got out of the car as he thought they had finished having sexual intercourse. The three of them were sitting on the rug. He then asked J if she would like to have a threesome and she replied “I am not comfortable having a threesome, I haven’t done that before”.[109] S asked her for oral sex and she said that she didn’t like “giving oral sex”.[110] S asked “Are you interested in anal sex?” but she replied “No” that she had haemorrhoids.[111] Either he said or she said “hop on top” and J said it is okay. He undid his pants and pulled them half way down his legs. He then had sexual intercourse with her. He said she consented and had she not been consenting he would not have gone any further.[112]

    [109] T 152.

    [110] T 152.

    [111] T 152.

    [112] T 153.

89. He ejaculated and then got dressed.

90. S said that at no time did J do anything that suggested that she was not happy about having sexual intercourse.[113]

    [113] T 153.

91. When dropping J home she seemed fine because she and B were talking about “going on a date or something”. He wasn’t trying to pry he thought they knew each other. He thought that J was a prostitute. He did not use a condom and that did not bother him.[114]

    [114] T 154.

92. On the way home J had some marijuana which had been offered. She was dropped back right out in front of the YMCA. B got out of the car with her. He was unable to remember whether he vomited that night.

93. S said that he saw B having sex with J that night. He saw her having vaginal intercourse and thought that she had had oral sex with him although he did not see that. He said she was laughing, smiling, talking friendly during the night.[115]

    [115] T 156.

94. Under cross-examination S agreed that he was good friends with B. He wasn’t his closest friend but was one of his closest friends. He agreed that if he and B found a girl that would have sex with both of them they would.

95. S agreed that he split up with his wife in 1989 not long after she had given birth to their son. He agreed that the two of them had been having sex throughout the course of her pregnancy.

96. S agreed that he stopped the car around about 3.30 am. He said he was “not particularly” looking for someone to have sex with.[116]

    [116] T 159.

97. S said he wasn’t driving fast down Flinders Street. He agreed he was roughly near the YMCA when B said something to him. He did not respond when B said that.[117] He thought that B was going to get out and have a chat with her. He said he was not really “interested to see what was going on between B and the girl”.[118] He did not even think that it might be someone who he would have sex with.[119] S said that he did not watch B. He was going to have a cone of marijuana.[120] He agreed that it was 3.30 in the morning in Flinders Street, he was drunk and that he wanted to smoke cannabis; that he double ranked his car.[121] He denied pulling right in against the kerb.

    [117] T 161.

    [118] T 161.

    [119] T 161.

    [120] T 161.

    [121] T 162.

98. He agreed there was no-one else in the street apart from J. He agreed there weren’t many cars around but denied pulling into the kerb.[122]

    [122] T 163.

99. S said he pulled up basically level or just a bit in front of J so that B could get out and walk straight to her.[123]

    [123] T 163.

100. He did not see B approach the girl and denied that he was interested.[124] He said that B was out of the car for about 40 seconds, a minute, “something like that”.[125]

     [124] T 164.

     [125] T 164.

1. B was the one who said that when they got in the car “Do you want to go for a drive”.[126] He assumed that B knew her.

   [126] T 165.

2. He never asked B even later whether he knew the girl.[127]

   [127] T 165.

3. He just assumed because B used to drive prostitutes around that J was a “working girl”.[128] S agreed that he was not introduced to J when she got in the car.[129] He said however when she got in the car that J and B were talking. It appeared to be a conversation between two people that knew each other.[130] They were talking about going on a date or something like that and he wasn’t paying much attention to it.[131] The conversation seemed friendly and she was laughing.[132]

   [128] T 165.

   [129] T 166.

   [130] T 166.

   [131] T 167.

   [132] T 167.

4. S said he was fairly intoxicated and couldn’t remember what they talked about when they first got in the car.[133]

   [133] T 167.

5. S denied that he was thinking about having sex with J when B had got out of the car.

6. S was unable to remember what the lighting was like as they drove along Flinders Street. He agreed that before B had said anything they didn’t go past J and therefore neither of them could have seen her face. He said it was “more the angles sort of thing”. He said he was driving at 20-30 “sort of thing” and grabbed the marijuana as they came around the corner. He said to B “I am going to pack a cone in” and put it on his lap, opened up the tin and was going to do that when B said he thought he might know the girl.[134]

   [134] T 169.

7. He denied that B got out of the car behind her and walked up from behind.[135]

   [135] T 170.

8. S was unable to say who opened the car door other than it was not him. He denied that J was pushed into the car.[136] He agreed that he was reasonably tall and “the seat was a fair way back”.[137]

   [136] T 171.

   [137] T 171.

9. When they first got in the car he did not involve himself in the conversation.[138] His only conversation was asking for directions. He was unable to remember exactly where they went. He agreed it was into the Adelaide Hills.[139]

   [138] T 171.

   [139] T 172.

10. S said that he really didn’t have much to do with her until all three of them were on the rug later in the evening and he asked her for sex.[140]

    [140] T 172.

11. He got out of the car when the car stopped because he “didn’t want to interrupt them I suppose”.[141]

    [141] T 173.

12. S was asked:

    QYou could have taken her back to your place, there was no problem with that, was there.

    AI didn’t particularly like having prostitutes coming back home, because with the way my wife was and having my son there every couple of weeks, I didn’t want people just rocking – or women rocking up any time, so I didn’t really like that.[142]

    [142] T 174.

13. He agreed that prostitutes had come back to the house before.[143] S said he didn’t even think of going to a motel with the girl. It would cost money.[144]

    [143] T 175.

    [144] T 175.

14. S agreed that B and J were chatting then almost immediately they were “petting each other”.[145]

    [145] T 175.

15. S said he drove for about 20 minutes or maybe a bit longer.[146] He said he might have said something but couldn’t recall what. He denied telling her to shut up at some point.[147]

    [146] T 176.

    [147] T 176.

16. S denied that it was his intention from the moment they picked J up to have sex with her.[148]

    [148] T 177.

17. S was not sure whether J took her own clothes off or whether B took them off. He was “fairly under the influence of alcohol”.[149] S agreed that at no stage did he hear her say anything that indicated she was not happy about being in the car. “They were talking, laughing and giggling and it just seemed a natural and normal thing. It didn’t seem out of the ordinary to me at all”.[150] There was definitely no crying.

    [149] T 178.

    [150] T 178.

18. S agreed that when he got out of the car after they had stopped and the blanket was out he was going to ask her if he could “join in”.[151] He denied saying anything in the car such as “it’s my turn”.

    [151] T 179.

19. As he was driving the car up in the Hills and they were having sex he did not agree that he wanted to have sex with her too. He was “more leave a mate alone”.[152] S denied touching her legs at any stage in the car.

    [152] T 180.

20. At the time he went over to the rug he was fully clothed.[153] At that stage he was not sure what was going to happen as “I didn’t know whether she would say no”.[154]

    [153] T 183.

    [154] T 183.

21. S agreed that after he sat down he asked whether she would have a threesome. He said he asked it politely.[155] S agreed he asked her for oral and anal sex to which she said “No”.[156] He agreed she had been performing fellatio on B in front of him.[157]

    [155] T 184.

    [156] T 184.

    [157] T 185.

22. S said he did not talk to her while he was having sex with her. He could not remember her talking to him either.[158] On the way back down the hill he asked her if she wanted to smoke some marijuana.[159]

    [158] T 186.

    [159] T 186.

23. On the way back B did most of the talking and they were talking about going on a date or making a time to meet up or something like that.[160]

    [160] T 187.

24. S could not remember talking about her personal life. He agreed he may have told her he was from Sydney.[161] He may have spoken to her about having a son but he was not sure.[162] S said he was fairly drunk and smoking a lot of marijuana as well. He did not recall telling J that he had separated from his wife.[163]

    [161] T 187.

    [162] T 187.

    [163] T 188.

25. S said that it is still his position that he thinks J and B know each other.[164]

    [164] T 188.

26. B never told him that he didn’t know J.[165]

    [165] T 189.

27. S said he could not recall telling J that he had had sex with his wife while she was seven months’ pregnant.[166] He was not able to recall that. He was unable to explain why he may have told her that. He thought B may have told her.

    [166] T 190.

28. S denied that J had ever said anything about her being pregnant.

29. S denied raping J.[167]

    [167] T 192.

30. S said he had never inquired of B whether J was in fact a prostitute. He just assumed that because of what B had said about “I know her, I work with her”.

    Forensic Disadvantage

31. In this case there has been a lengthy period between the alleged offending and the trial.

32. That delay has resulted in a significant forensic disadvantage to the accused.[168]

    [168] Section 34CB Evidence Act 1929.

33. The forensic disadvantage includes the fact that Mr S was attempting to remember details of facts, conversations and particular movements as well as his intentions about matters that occurred some 23 years ago. Clearly, that is a difficult task.

34. I take that significant forensic disadvantage into account when scrutinizing the evidence for the prosecution.

35. The overall delay has disadvantaged the accused because the complainant’s account is, of course, from memory of acts that occurred 23 years ago. I must take the forensic disadvantage into account when scrutinizing the evidence of the complainant and the other prosecution witnesses. When taking the forensic disadvantage into account when assessing the accused’s evidence I do not imply by that any reversal of the onus of proof. I take it into account in a favourable way to the accused by making allowances for his inability to remember in fine detail the events that occurred that evening.

    Motive

36. In this case it has been suggested that there is evidence for which I must infer that J had a motive to make false allegations against the accused. That evidence was that she was embarrassed by having sex with two men. I take into account her state of intoxication (as discussed later in these reasons).

37. I have to consider the possibility of a motive for her to lie. It is relevant to her credibility. However, even if I reject the alleged motive the lie does not mean that I find the complainant has been truthful. The absence of the evidence of motive to lie does not strengthen the prosecution case. It is neutral as lies can be told for no apparent reason. It is not for the accused to provide a motive for the complainant to lie and at all times the prosecution bears the onus of proof of these charges beyond reasonable doubt.

    Intoxication

38. There is evidence in the case that both J and S consumed alcohol during the course of the evening.

39. J gave evidence that over the course of the evening she had been drinking alcohol. She had, with her friends, visited three nightclubs. She described in evidence having had eight to 10 stubbies and a Tia Maria over the course of the evening. J described herself as “tipsy” not drunk.

40. I accept her evidence beyond reasonable doubt about that.

41. S gave evidence that he was intoxicated and also consumed cannabis. S said “I was fairly intoxicated. I was drunk, drunk as, to be honest with you”.[169]

    [169] T 167.

42. J’s evidence confirmed that cannabis was consumed although her evidence was that it was consumed on the way back down from the Adelaide Hills.

43. J agreed that she saw S drinking what appeared to be “spirits” again on the way back from the Hills. J saw S “vomit” outside of the car on their return to the YMCA.

44. I accept that S was to some extent affected by alcohol. I reject his evidence, even as a reasonable possibility, that he consumed cannabis while J was in the car but before they commenced the drive down from the Hills. Whether he smoked cannabis before J was in the car is unknown. I accept that cannabis was smoked on the way back from the Hills and “might” have contributed to the act of vomiting.

45. That proposition as to S’s state of intoxication was put to J during the course of her evidence. She was asked:

    QAt that stage, did you get the impression that the taller bloke was well and truly under the influence of alcohol.

    ANo – he had been drinking, but no, not well and truly under the influence, no.[170]

    [170] T 96.

46. I find beyond a reasonable doubt that S was, to some extent, affected by alcohol; he was not as drunk as he stated in evidence. Exactly how intoxicated he was I cannot say although I accept J’s evidence beyond a reasonable doubt. That is I find he was “not well and truly under the influence”. However, he was capable of driving the car from the centre of Adelaide to the Adelaide Hills area. He was capable, as I find occurred, of stopping the vehicle and threatening J during the journey to the Hills. He was capable of having sexual intercourse with J.

47. As far as J is concerned, partial intoxication, depending upon its degree, may have significance in this case on the question of whether J would voluntarily have participated in acts of sexual intercourse with two men in circumstances in which she would not or might not have participated consensually if unaffected by alcohol. It also has relevance as to her ability to accurately recall the events of the night.

48. The question of intoxication is relevant to the question of S’s state of mind at the time of the alleged offending. It also is relevant to the question of the reliability of his memory of the events that occurred that evening.

49. As far as S is concerned, intoxication may have relevance to his capacity to fully appreciate the significance of “signals” sent by J prior to his participation in the physical act of intercourse.

50. Reckless indifference in this context means that the accused realised that J might not be consenting and went ahead nevertheless with the act of penetration indifferent to whether she was consenting or otherwise.

51. I have taken into account the state of intoxication of S when considering his state of mind at the relevant times in relation to each count separately.

    Complaint and other evidence

52. Evidence of complaint was led by the prosecution. The prosecution also led evidence of distress and evidence from the complainant as to her state of mind upon her return to the YMCA.

53. J said that when she had been dropped back at the YMCA she went to her room. In her room she said she was “crying my eyes out”.[171] J wanted to ring the police.  She opened her door to go downstairs (I infer to the telephone). J heard a noise downstairs and thought it may have been “them”; she closed the door.

    [171] T 65.

54. J was still crying and thought she had to ring the police. She “went out the door” still crying when a young man came out of his room and said “Are you all right?” She said “I have been raped”.[172]

    [172] T 65.

55. J was unable to think of the number to ring the police. She was confused.  The young man rang the police for her and handed her the phone. She said to the police “I want to report a rape”. While waiting for the police to arrive she said “I was just as upset and I just couldn’t believe it had happened. He (the young man) gave me a hug and I hugged him, I was just gutted. I just couldn’t believe it”.[173]

    [173] T 65.

56. Two police officers attended the YMCA and spoke to J. No evidence was given about what, if anything, she said to them. The two police officers took her to the Sexual Assault Referral Centre.

57. Ms Helbig, who at the time was a police officer attached to the Sexual Assault Unit, met with J at 7.10 am approximately 40 minutes after she had been dropped back at the YMCA. Ms Helbig, by reference to her notes, said that J was crying. She noted “eyes red and swollen”.[174]

    [174] T 134.

58. Constable Helbig thought she may not have spoken to J about the event as she would have received a Police Incident Report. Such a report, if it existed was not produced.

59. Ms Helbig, at that time, did not take a statement from J. She began taking a statement from her after Dr Black had finished her examination.

60. Dr Black, who examined J between 8.40 am and 10.30 am, noted at her initial presentation that she was “distressed, tearful, talked about her fear of being killed, very anxious”.[175]

    [175] T 116.

61. Dr Black examined J and “took a history”. As mentioned, what she told Dr Black was generally, but not entirely, consistent with her evidence in court.

62. Section 34M of the Evidence Act 1929 (SA) deals with the admissibility of and the use that can be made of “complaint” evidence. Section 34M repeals the common law relating to complaint evidence. In this case the common law requirements of the complaint being spontaneous and being made at the first reasonable opportunity are present. However, they are not requirements under s 34M.

63. In this matter the person to whom the initial complaint was made was not called by the prosecution. Indeed it appears that, at the time, steps were not taken to ascertain his identity.

64. The question arises under s 34M whether the prosecution can lead evidence of “complaint” by an alleged victim without calling the person to whom the complaint was made. At common law the preponderance of authority supports the proposition that it can do so. The question was one of the weight to be given to the evidence rather than its admissibility.[176]

    [176] R v J(No 2) [1998] 3 VR 602; R v Gae (2000) 109 A Crim R 419; R v Duell [1964] Qd R 451. New Zealand and England took a contrary view see White [1999] 1 AC 210.

65. Section 34M(3) states:

    (3)     Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.

    Examples—

    Evidence may be given by any person about—

    ·when the complaint was made and to whom;

    ·the content of the complaint;

    ·how the complaint was solicited;

    ·why the complaint was made to a particular person at a particular time;

    ·why the alleged victim did not make the complaint at an earlier time.

    (4)     If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—

    (a)it is admitted—

    (i)to inform the jury as to how the allegation first came to light; and

    (ii)as evidence of the consistency of conduct of the alleged victim; and

    (b)it is not admitted as evidence of the truth of what was alleged; and

    (c)there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,

    but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.

66. It can be seen from the “Examples” that there is no requirement in the section that both the complainant and the person to whom the complaint was made should both be called before the evidence be given. In my view, J’s evidence of her complaint to the unidentified male is relevant and admissible. The failure to call the person to whom the complaint was made affects the weight that can be given to J’s evidence.

67. Further, the definition of initial complaint “within section 34M” includes information provided by way of the initial complaint (whether provided at the time of the initial complaint or at a later time).

68. Thus the “elaboration” by J of her initial complaint to Dr Black is also admissible.

69. As the evidence of initial complaint (including to Dr Black) is relevant and admissible, I give myself the following directions in accordance with s 34M. The evidence is admitted:

    1.to inform me as to how the allegation first came to light;

    2.as evidence of the consistency of the conduct of J;

    3.not as evidence of the truth of what J alleged;

    4.and, that there may be varied reasons why J has made a complaint of the offence at a particular time or to a particular person.

70. It is a matter for me to determine the significance of the evidence in the circumstances of this case.

71. For the evidence to be admitted under s 34M the Court must be able to say that the complaint evidence is admitted both to inform me as to how the allegation first came to light and as evidence of the consistency of conduct of J.[177]

    [177] R v S, DD (2010) 109 SASR 46.

72. What consistency of conduct means was discussed by Doyle CJ in R v Szejnoga.[178]

    The evidence is admitted because of its tendency to prove consistency of behaviour. That consistency has, I consider, two aspects. Firstly, consistency in the sense of making a complaint when one would expect a complaint to be made. That is the relevance of the assumption, referred to by Gaudron and Gummow JJ, that victims will complain at the first reasonable opportunity. The second aspect of consistency is consistency between the incident that is alleged and the terms of the complaint. That does not mean, of course, that all of the details must be in the complaint. Consistency is assessed more broadly. But, once again, the average person would put some weight, when assessing the credit of a witness, upon consistency, or the absence of it, between the contents of an early complaint and the incident the subject of the complaint.

    [178] (1998) 199 LSJS 97.

73. The “complaint” evidence here was spontaneous and related to the topic of rape. It was made at the first reasonable opportunity. It is true that initially she did not talk about the details. However, in the circumstances, it is unsurprising that she did not do so. Her complaint was totally referrable to the conduct eventually charged.[179] The timing of the complaint and the circumstances in which it was said are consistent “in the sense of making a complaint when one would expect a complaint to be made”.

    [179] R v El Rifai [2012] SASCFC 98.

74. When asked for elaboration during the course of the examination by Dr Black, J gave details as mentioned that were broadly consistent with the charges on the information.[180] While this evidence is relevant and admissible, in my view it has less weight than the initial complaint to the young man. I note that the elaboration to Dr Black was shortly after the initial complaint albeit not spontaneous.

    [180] T 116 ff.

75. Consistency of conduct is relevant to the consideration of the credibility of J. If the evidence of complaint is relevant to show consistency of conduct, that evidence may buttress the complainant’s credibility.[181]

    [181] R v H, T (2010) 108 SASR 86 at [47].

76. I find that J told the young man at the YMCA “I have been raped”.

1. I find J’s conduct in making the initial complaint and the subsequent elaboration shows consistency of conduct and therefore “buttresses” her credibility.

   Distress evidence

2. Evidence of a complainant’s “distress” after an alleged sexual offence may be admitted as evidence that independently supports the complainant’s evidence. Rarely could such evidence amount to “corroboration” of a complainant’s account.[182] Its potential use is, like “complaint” evidence, that it may buttress the complainant’s credibility.

   [182] R v Schlaefer (1984) 37 SASR 207.

3. The evidence of distress must come from an independent witness who observes the distress. A complainant’s evidence of his/her mental state after the alleged act is not evidence of distress. Caution should be exercised in accepting evidence of observed distress, even though it comes from an independent witness, as its ultimate source remains the complainant. This is particularly so where the complainant is aware that she is being observed.

4. The inference that distress assists in assessing the credibility of the complainant may also not be open where there are multiple possible causes of the observed distress. It must be open to the jury to reasonably infer that the alleged offending, rather than some other matter, caused the distress. Evidence of distress however, is not rendered inadmissible simply because of competing theories as to its cause. However, before using “distress” evidence as evidence of consistency, I must be satisfied that other explanations have been excluded.[183]

   [183] R v Mitrovic [1999] SASC 478.

5. Further difficulties with distress arise where the “distress” occurs at the time “complaint” is made about the offence. The evidence in such circumstances has less weight as it is difficult to establish that the distress was caused by the offending rather than the process of making a complaint.[184]

   [184] R v Sailor [1994] 2 Qd R 342.

6. As already discussed, the “young man” to whom the complaint was made was not called. He would have been in a good position to describe whether J appeared distressed or not. J’s own evidence of that encounter is not “independent” evidence of distress.

7. The evidence of Ms Helbig and Dr Black is objective evidence that potentially could amount to evidence of distress. Both were involved in the process of investigation of the offence and J was aware she was being observed. Indeed with Dr Black, J was elaborating upon her initial complaint.

8. It was suggested to J during the course of cross-examination that her behaviour at the YMCA after she was dropped back was because she was “embarrassed” by having had consensual sex with two men. This could account for her distress (and indeed her complaint).

9. I reject that submission. It was common ground that Flinders Street where J was walking was, at that time of night, deserted. J gave evidence that she had left her sister and friend in the club in Hindley Street. She was only in Adelaide for a few days. There was no-one who knew she had gone in the car with the two men. There was at that time nothing to be embarrassed about unless she raised it.

10. Rejecting that submission however, does not of itself rule out all possible other causes of distress.

11. There are however, no other obvious competing causes that may account for J’s observed distress.

12. Taking into account the circumstances of this case, the evidence of distress does lend support to the credibility of J.

13. J gave evidence about her emotional state upon her return to the YMCA. Her evidence as to how she was feeling is not “distress” evidence. However, the evidence is relevant and admissible. Evidence is relevant if it can provide a context that is helpful or even necessary to an understanding of the narrative of a complaint.[185] It is relevant, when assessing J’s evidence, to see whether she behaved in a manner that is consistent with having been the victim of the offending.

    [185] R v H, T [2010] SASCFC 24.

14. In my view, the evidence of complaint, distress and her emotional state is consistent with the offending having occurred and in my view “buttresses” her credibility.

    Other supporting evidence

15. The prosecution relied to an extent on the “esoteric” knowledge obtained by J of S to support her credibility.

16. During the course of the alleged rapes J said that she “made up” a story about being pregnant in an effort to have the two men have sympathy for her. J was not pregnant at the time. J said that she uttered phrases such as “Don’t hurt the baby” while intercourse was taking place. She said this or something like it to both men.

17. J said that she was told by S during that evening that he was separated from his wife and that he had a child from the marriage. Both those facts were acknowledged to be correct by S also Ms S when she gave evidence.

18. J also stated that S had told her that he had had sex with his wife until the seventh month of her pregnancy. Ms S gave evidence confirming that indeed had happened. Indeed S, when he gave evidence, did not deny it. S denied hearing J ever say that night that she was pregnant.

19. Mr Barklay in his address referred to the “knowledge” of this fact as “esoteric” and, with perhaps a prosecutorial flourish, a “powerful” piece of evidence.

20. I agree that it is a piece of evidence which supports J’s evidence. It is an unusual topic of conversation between a couple having consensual intercourse. I am satisfied beyond a reasonable doubt that J used that phrase or something similar. Thus it lends support to J’s story that she made up the lie of being pregnant because she was in fear of her safety.

21. S denied that J mentioned pregnancy. I reject his evidence about that. He was unable to explain how the topic of conversation as to him having sex with his wife while she was seven months pregnant may have arisen other than that B may have told her. I reject that explanation. His inability to explain how the conversation may have arisen could be accounted for by the “forensic disadvantage” he had, given the length of time since the incident occurred. No inference can be drawn against S for his inability to explain the origin of the topic.

22. However I am satisfied beyond a reasonable doubt that the topic was raised. It lends support to J’s evidence that she “made up” a story about being pregnant and S was responding to that. I accept the evidence of Mrs S that in fact they did have intercourse while she was seven months pregnant.

23. Further, it is undisputed that J was from Sydney spending only a few days in Adelaide. She had not wanted to go out that evening and was “bored” with the evening. J’s sister D supported her evidence about that.

24. J also clearly did not know either S or B. Despite S’s evidence that he still believed B knew J, in my view it is beyond dispute that she did not. I am satisfied beyond reasonable doubt that J was only in Adelaide for a few days and had not been keen to go out that night. J did not know B or S before this incident.

    Did J get into the car voluntarily?

25. This is a trial where the veracity and the reliability of J were critical. Whether J was forced into the car or got in voluntarily is a key issue in the matter.

26. J gave evidence that she was forced into the car. As discussed, she gave evidence that she was grabbed from behind and a knife held to her throat. She was forced into the car. The incident happened very quickly. Initially she was stunned and was quickly forced to perform an act of fellatio on B. Eventually she was crying to the extent that S told her to “shut up”.

27. S gave a different version of events. B, he said, had thought he recognised J as she was walking along Flinders Street. He had pulled the car over so B could get out and chat to her.

28. He said that although he was not watching directly when she got into the car she was smiling, happy and talking. She began “heavy petting” with B almost as soon as she got in the car. He was then present while a number of sexual acts occurred between J and B. She was never crying or upset.

29. J was an excellent witness. Her evidence was clear and concise. There was no obvious embellishment. As already discussed there are other matters which support her credibility. I have taken into account her state of intoxication. I have considered carefully the apparent inconsistency with her sister’s evidence about “begging” them to use a condom. That does not cause me to doubt J’s evidence. I have found that J was in Adelaide only for a few days. She had not really wanted to go out that night. She was only a short distance from arriving at the YMCA. She did not know either S or B.

30. The suggestion by S that, in those circumstances, J would get voluntarily into the car with B, who she did not know, and within a very short time begin to be intimate with B, in my view is inherently improbable and fanciful. I reject his evidence about that. S lied about that and in my opinion that affects his credibility generally. I reject the evidence of S that J was laughing and chatting when she first got into the car. I have taken into account in making those findings the fact that J described herself as “tipsy”.

31. I accept beyond reasonable doubt J’s evidence about how she was forced into the car and what happened in the first few minutes after that.

32. I accept beyond reasonable doubt J’s evidence generally. I reject S’s evidence, even as a reasonable possibility where it conflicts with J.

33. I find beyond reasonable doubt that J was crying and that S at one stage told her to “shut up”. I accept that J attempted to get out of the car on two separate occasions and that after the second occasion she was confronted by S.

34. S was a very poor witness. Even allowing for the lengthy passage of time between the alleged offending and his giving evidence, his version of events was improbable. While I accept that he had been drinking that night and was affected by alcohol he was capable of driving the car into the Adelaide Hills. He was able to follow instructions from B; he was capable of stopping the car and threatening J.

35. S said that he had, and still has a belief, that B and J knew each other before the relevant night. I find he lied about that. I find beyond reasonable doubt that J did not know B. That lie affects his credibility. I am unable to rely upon, even as a reasonable possibility, any of S’s evidence.

36. I remind myself that rejection of his evidence does not relieve me of the responsibility of scrutinising the prosecution evidence to see whether or not the prosecution have proved each element of each offence beyond reasonable doubt. I must be satisfied beyond a reasonable doubt that J’s evidence is truthful, credible and reliable.

    Offences

    Count 1

37. Mr S is charged with abduction (Section 59 of the Criminal Law Consolidation Act).

38. It is alleged that on 19 November 1989 at Adelaide and other places he took J away by force with intent to have sexual intercourse with her.

39. Section 59 states:

    (1)     A person who takes away by force, or detains against his will, any other person–

    (a)     with intent to marry, or to have sexual intercourse with, that other person;

    (b)... (not relevant)

    shall be guilty of a felony and liable to be imprisoned for a term not exceeding fourteen years.

40. The prosecution must prove that:

    1.     S took J away by force.

    2.     At the time he did he had the intent to have sexual intercourse with her.

41. Here the prosecution rely on the doctrine of joint enterprise. J alleged that it was B who got out of the car and forced her into the car. It was not suggested by J that S, at that time, got out of the vehicle. Further, it was the prosecution case that it was B who forced J to have sex with him almost immediately after she was put in the car and S was the driver. S’s evidence, apart from denying that force was used (to his knowledge), was consistent with J’s account.

42. The prosecution allege that S and B were acting together pursuant to a plan to abduct J and have sexual intercourse with her. The prosecution case is that I should be satisfied beyond reasonable doubt that both B and S engaged upon a deliberate course of criminal conduct together. This plan was “on foot” before J was put in the car.

43. I direct myself that if two or more persons join together in a joint criminal enterprise, every act done and word spoken in furtherance of that enterprise by any one of them, is in law done and spoken by them all. In other words, the combined actions of two or more persons with a common criminal intent in implementing an arrangement previously agreed upon by them may make them all guilty of the resulting crime. The law considers that in such circumstances each person is acting both on his own account and on behalf of the other person or persons concerned. The concept of a joint criminal enterprise implies that the persons concerned are, as it were, acting as a team to achieve a mutually agreed result.

44. Mere presence of a person at or near the scene of a crime being committed by another, whatever may be that person’s knowledge of, or attitude towards, the commission of the crime, does not, without more, make him guilty under this principle. To implicate that person, his presence must be by agreement with the other for the purpose of furthering and achieving the commission of the crime. The agreement might be the result of a carefully worked out plan, or it might be made on the spur of the moment and without a word spoken.

45. A joint criminal enterprise is usually a matter of inference from proven conduct. I must look at the proven acts of each of S and B in the light of the evidence as a whole, including the explanation which S gave in deciding whether those acts in combination justify the inference, or conclusion, beyond reasonable doubt, that there must have been a joint criminal enterprise between S and B to commit the offence.

46. I have already accepted the evidence of J. I have rejected the evidence of S even as a reasonable possibility where it conflicts with J. I accept the evidence of Mrs S. I accept the evidence of J when she said that they both admitted to “kidnapping” her.[186] They both apologised for “meeting this way”.[187]

    [186] T 55.

    [187] T 60.

47. I make the following factual findings:

    1.S and B had a close relationship. Mrs S gave that evidence and S said that he and B had enjoyed “threesomes” before and were good friends.

    2.The car driven by S pulled up in front of J. B approached J from behind. This means that S must have let B get out of the car before he pulled the car up in front of J.

    3.S held a knife to J’s throat and forced her into the car.

    4.S immediately drove off once J was in the car.

    5.Once in the car J had her head pushed down.

    6.Once the car left B almost immediately began to rape J.

48. Those matters in combination lead to the obvious inference that the abduction was part of a prearranged plan between S and B. There is no reasonably possible inference consistent with innocence. This finding on joint enterprise is relevant to all the other counts as well particularly relating to those counts where B committed the actual physical acts.

49. It is also established beyond a reasonable doubt that the taking away by force was clearly for the purpose of having sexual intercourse with J.

50. I find Count 1 proved beyond a reasonable doubt and find S guilty.

    Count 2

51. S is charged with rape (Section 48 of the Criminal Law Consolidation Act). The particulars are that on 19 November 1989 at Adelaide and other places he and B had sexual intercourse with J, without her consent, by causing her to perform an act of fellatio with B.

52. J alleged that shortly after she had been forced into the back seat of the car B undid his trousers and “had his penis out”.[188] B told her to “suck it” which she did by putting his penis into her mouth. B told her to “put some meaning into it”

    [188] T 30.

53. S did not deny that B engaged in fellatio with J. He said he thought it was consensual. I have already rejected his version of events.

54. I accept beyond reasonable doubt what J alleged.

55. In 1989 section 48 of the Criminal Law Consolidation Act read:

    (1)     A person who has sexual intercourse with another person without the consent of that other person–

    (a)     knowing that that other person does not consent to sexual intercourse with him;

    or

    (b)     recklessly indifferent as to whether that other person consents to sexual intercourse with him,

    shall (whether or not physical resistance is offered by that other person) be guilty of the felony of rape and liable to be imprisoned for life.

56. By definition sexual intercourse included an act of fellatio.

57. I am satisfied beyond reasonable doubt that B had sexual intercourse with J without her consent by forcing her to commit an act of fellatio. B knew that J was not consenting as he had just abducted her. S knew that as well. This was part of the plan between B and S. S well knew that B would have sexual intercourse with J without her consent once he had abducted her.

58. I find S guilty of Count 2.

    Count 3

59. S is charged with rape. The particulars are that on 19 November 1989 at Adelaide and other places, he and B had vaginal sexual intercourse with J without her consent.

60. J alleged that B put his penis into her vagina without her consent while they were in the back seat of the car. The car was moving at the time.[189]

    [189] T 39 ff.

61. I find that an act of sexual intercourse took place as alleged. I find that J did not consent and that both S and B knew she was not consenting for the reasons already discussed.

62. I find S guilty of Count 3.

    Count 4

63. S is charged with rape. It is alleged that on 19 November 1989 at Adelaide and other places he and B had vaginal sexual intercourse with J without her consent.

64. J alleged that after the car pulled up in the Hills. She had been leaning out of the window pretending to be sick. B grabbed her and told her to “come over here”.[190] He put her on “top of him”. He had sex with her. I infer from her evidence that this was penile vaginal sex.

    [190] T 43.

65. I find that an act of sexual intercourse took place as alleged. I find that J did not consent and that both S and B knew she was not consenting for the reasons already discussed.

66. I find S guilty of Count 4.

    Count 5

67. S is charge with rape. It is alleged that on 19 November 1989 at Adelaide and other places, B and S had sexual intercourse with J without her consent by inserting one or more fingers into her vagina.

68. J alleged that after the car stopped in the Hills and S had finished having sexual intercourse with her, there was talk about getting a blanket to put down outside the car. At around that time S got out of the driver’s seat and got into the back of the car with B and J. Both S and B began to touch her. They touched her breasts and her vagina by “putting fingers in my vagina”.[191] Both of them did that. J said “it wasn’t a long time” that this was occurring.[192]

    [191] T 45.

    [192] T 45.

69. I accept J’s evidence about this incident. S denied that it happened. He denied ever having sexual intercourse with her in the back seat of the car.

70. In 1989 the definition of sexual intercourse included;

    any activity (whether of a heterosexual or homosexual nature) consisting of or involving–

    (a)penetration of the vagina or anus of another person by any part of the body of another person or by an object.

    (b)...

71. I find beyond reasonable doubt that both S and B put their fingers in her vagina at this time. That amounts to an act of sexual intercourse.

72. I have found that S and B abducted J from Flinders Street with the intention of having sexual intercourse with her. The first four counts deal with that matter and then the acts of intercourse perpetrated by B. There can be no doubt that initially at least both S and B knew she was not consenting.

73. I accept that by this time J had been talking to both men in an attempt to get herself out of a difficult situation. I accept that S at least was affected by both alcohol and cannabis. J agreed that she was not “saying no” or crying anymore. J agreed that she was trying to be friendly towards the men.

1. Despite the fact that S was affected by alcohol and cannabis, I have no doubt that he was aware that J was not consenting. However, even if I am wrong about that and his mental state was affected, he was clearly recklessly indifferent as to whether J was consenting to sexual intercourse with him.

2. I find S guilty of Count 5.

   Count 6

3. S is charged with rape. It is alleged that on 19 November 1989 at Adelaide and other places, he and B had vaginal sexual intercourse with J without her consent.

4. On the prosecution case this is the first occasion that S had vaginal sexual intercourse with J. After the act that constituted Count 5 had finished, B “hopped out” of the car. S pushed her down on the back seat and put his penis into her vagina. S was frustrated as there wasn’t much room in the car. Eventually they sat up and it was at that time J told him to take it easy and not hurt the baby.[193] J asked him if he had ever had sex with someone who was pregnant and he said “yeah, with my wife until she was 7 months”.[194] S lost his erection.

   [193] T 46.

   [194] T 46.

5. S denied that any act of sexual intercourse occurred between him and J whilst she was in the back seat of the car. I reject his evidence.

6. I am satisfied beyond a reasonable doubt that the act of sexual intercourse as described by J occurred. As discussed earlier, despite the fact that S was affected by alcohol, I have no doubt that he was aware that J was not consenting. However, even if I am wrong about that and his mental state was affected to some degree, he was clearly recklessly indifferent as to whether J was consenting to sexual intercourse with him.

7. I find S guilty of Count 6.

   Count 7

8. S is charged with rape. The particulars are that on 19 November 1989 at Adelaide and other places, he and B had sexual intercourse with J without her consent by causing her to perform an act of fellatio upon him.

9. J alleged that after S finished having vaginal intercourse with her he began kissing her and then pushed her head “down on his penis”.[195] He had his hand on the back of his head. The act of fellatio did not last long and she got back up and told him she was about to be sick.

   [195] T 46.

10. As with the previous count, S denied that any sexual act occurred between him and J in the back seat of the vehicle.

11. I reject his evidence.

12. I have taken into account his state of intoxication.

13. I am satisfied beyond a reasonable doubt that the act of sexual intercourse as described by J occurred. As discussed earlier, despite the fact that S was affected by alcohol and cannabis I have no doubt that he was aware that J was not consenting. However, even if I am wrong about that and his mental state was affected to some degree, he was clearly recklessly indifferent as to whether J was consenting to sexual intercourse with him.

14. I find S guilty of Count 7.

    Count 8

15. S is charged with rape. It is alleged that on 19 November 1989 at Adelaide and other places, he and B had vaginal sexual intercourse with J without her consent.

16. After the act of fellatio, S got out of the car and spoke to B. She couldn’t hear what they said as they were whispering. J was still in the car.[196]

    [196] T 48.

17. She said “What are youse whispering about?” At this stage she was trying to come across “kind of carefree”.[197] She was trying not to cause trouble. J got out of the car. They got a blanket out and put it in front of the car. The three of them all got on the blanket and sat there.

    [197] T 48.

18. When she got out of the car she was naked. They allowed her to put a shirt on.[198] S allowed her to put on his sweat shirt.[199]

    [198] T 49.

    [199] T 52.

19. B then pushed her down on the blanket and had vaginal sexual intercourse with her. While that was happening S was kissing her. B got off and then S had intercourse with her. Again she said something about not hurting the baby. S said something about “anal sex”. She said “Oh no, oh God no”. He just left the topic.

20. S admitted having sexual intercourse with J on the blanket. He said that he had got out of the car while B was having sexual intercourse with J in the car. He saw B get out the car and get a blanket out of the boot. B put the blanket on the ground in front of the car. He said J got out of the car and sat on the blanket with B. He then got into the car for about 20 minutes. He thought B and J were “having sex”.[200]

    [200] T 150.

21. When they finished he got out the car and sat on the blanket with them. B asked if he “wanted a go”.[201] S asked J if “she would like to have a threesome”. She replied that she was not comfortable with that. S asked if she would give him “a head job”. She said she didn’t like giving oral sex.[202] He said “Are you interested in anal sex?” and she said “No”.

    [201] T 151.

    [202] T 152.

22. Either he asked or she invited him to “hop on top”. He had sexual intercourse with her. She consented.[203] S said that he ejaculated. S said that if she hadn’t consented he would have just got back into the car. S said that she was “smiling, laughing, talking, was friendly”.[204] To a degree J had admitted that type of conduct.

    [203] T 152.

    [204] T 153.

23. However, I reject totally his version of events as to how the act of sexual intercourse came to occur.

24. I accept beyond a reasonable doubt J’s version of events about what occurred on the blanket.

25. I am satisfied beyond a reasonable doubt that the act of sexual intercourse as described by J occurred. As discussed earlier, despite the fact that S was affected by alcohol, I have no doubt that he was aware that J was not consenting. He knew she had been abducted from the street and raped by B. In relation to this count J agreed that she had not wanted to cause any trouble and was trying to “kid” them along. There is evidence that she may have by this stage come across more friendly than before. S was able to drive the car up through the Adelaide Hills. He was able to have sexual intercourse with her in the back seat of the car. He was able to be part of a plan to abduct J. I have previously noted that S and B both admitted to J that they had “kidnapped” her.

26. Despite the evidence of J being more “friendly”, and that she made efforts to make the situation less volatile I am satisfied beyond a reasonable doubt that S knew at the time he had sexual intercourse with her on the blanket that she was not consenting.

27. I have taken into account the evidence as to S’s state of intoxication.

28. However, even if I am wrong about that and his mental state was affected to some degree, he was clearly “recklessly indifferent” at the time or penetration as to whether J was consenting to sexual intercourse with him.

29. I find S guilty of Count 8.

    Count 9

30. S is charged with rape. It is alleged that on 19 November 1989 at Adelaide and other places, he and B had intercourse with J without her consent by performing acts of cunnilingus upon her.

31. After S had finished having sexual intercourse with her on the blanket he got off and they put their fingers into her vagina. They alternated doing that and they did it a couple of times. Then B “went down and licked her vagina”.[205] Shortly after that they “stopped the sexual stuff”.

    [205] T 53.

32. S gave no direct evidence in relation to what B did. I infer from his evidence that if the act occurred as J alleged he would have thought it was a consensual act. I reject his evidence generally that he thought she was consenting.

33. I am satisfied beyond a reasonable doubt that the act of sexual intercourse as described by J occurred.

34. I find S guilty of Count 9.

    Verdicts

35. I find the accused guilty of Counts 1, 2, 3, 4, 5, 6, 7, 8 and 9.