R v Sheehan No. DCCRM-01-101

R v SHEEHAN
[2001] SADC 104
Chief Judge Worthington
Criminal

The accused, Paul Charles Sheehan, is charged with two counts of rape at Murray Bridge on 1 October 2000, contrary to s48 of the Criminal Law Consolidation Act 1935. The first count is that he had vaginal sexual intercourse with Brooke Amanda Kemp, the complainant, without her consent, and the second count is that he had sexual intercourse with the complainant, without her consent, by inserting his fingers into her vagina.
These two crimes are alleged to have been committed in the early hours of Sunday 1 October 2000. On the afternoon of Saturday 30 September 2000, there was an engagement party for Jamie Peter Brine and Colleen Patricia Schulz at Mr Brine’s grandfather’s house in Doecke Road, Murray Bridge.. There were about 50 or 60 guests and among them was a group whom Mr Brine and Ms Schulz had invited to stay the night at their house at 44 Ritter Street, Murray Bridge, after the party. That group comprised the complainant and her boyfriend, Donald Martin Lee, Darren James Wilson, Daniel William Kane, Jonathan Andrew Gray, Mary Jane Spykstra and the accused, who was sometimes referred to as Paul and sometimes by a nickname, “Charlie”.
I shall refer to events in more detail shortly, but late that night a group of them bedded down in the lounge of the Ritter Street house, including the accused who was on a mattress on the floor, and the complainant and Donald Lee who were on a Queen size bed. It is the Crown case that during the early hours of Sunday morning, the complainant awoke to find a man on top of her with his penis in her vagina and as she rolled away from him, he put two fingers into her vagina; and that this man was the accused.
Rape is committed when a person has sexual intercourse with another person without the consent of that other person, knowing that the other person does not consent or being recklessly indifferent as to whether the other person consents. To establish such a charge the prosecution must prove beyond reasonable doubt:
1.that the accused intentionally penetrated the complainant’s labia majora; as relevant here, in count 1 with his penis, and in count 2 with one or more of his fingers;
2. that the complainant did not consent to that sexual intercourse; and
3.that the accused knew that the complainant was not consenting or was recklessly indifferent as to whether she was consenting.
For reasons which will become apparent, there is no real issue about the second element, namely, lack of consent.
THE ENGAGEMENT PARTY AND AFTERWARDS
Evidence was given by the complainant, Mr Lee, Mr Wilson, Mr Kane, Mr Gray, Mr Brine Ms Schulz and the accused. Although there are some variations, particularly with regard to times, the picture of events before bedtime for those staying at Ritter Street is clear enough.
Donald Lee had been the complainant’s boyfriend for about 9 months and at about 1.30pm on Saturday 30 September, he picked her up in his work utility to drive with her to Murray Bridge. They called by Darren Wilson’s house at Mount Barker. The accused was there. This was the first time the complainant met him, although she knew of him. They all had coffee, then went to Nairne to Daniel Kane’s house. From there, Donald Lee and the complainant continued on to Murray Bridge in the utility, and Darren Wilson and the accused went with Daniel Kane in his car. These young men had all known each other since school days.
The two cars arrived at the party within a few minutes of each other. Estimates of the time vary between 2.00pm and 4.00pm, but the exact time does not matter; it was around mid afternoon. The guests were a mixture of family and friends of Jamie Brine and Colleen Schulz. Many of the guests left by about 7.00pm but the group who later went back to Ritter Street stayed until later, probably 9.30-10.00pm. Jonathan Gray arrived later than the others. He said in evidence that he arrived at about 9.30-10.00pm. The complainant said that she thought he got there about 7.30pm. Given that Mr Gray was at the party for some time, the probabilities are that he arrived during the earlier part of the evening.
There was a barbecue meal and alcohol was provided. All of the witnesses I have mentioned, except for Ms Schulz, consumed alcohol at the party. I shall come to more detail about that shortly but I should say now that I accept that Ms Schulz did not drink any alcohol during the relevant time.
After leaving the house in Doecke Road, the witnesses, as well as Ms Spykstra, went back to the Ritter Street house for a short time and then, with the exception of Ms Spykstra, they all went to Dundee’s Hotel in the town. Ms Spykstra was tired and went to bed in a bedroom at Ritter Street. She took no further relevant part in the events and was not called to give evidence. Nothing turns on that.
The group remained at Dundee’s until closing time. Not surprisingly, no one was taking particular notice of the time, and estimates of closing time vary between midnight and about 2.00am. The best that can be said is that they were there for at least a couple of hours. At the hotel, they talked, some played eight ball and some had more alcohol.
After they left Dundee’s they went back to Ritter Street where they went into the backyard while Mr Brine barbecued some meat that was left over from the party. Those who wished to do so, had some food. Some continued to drink. At some time in the early hours of the morning, they all went into the house to go to bed.
ALCOHOL AND CANNABIS
The complainant said that she had 4-5 stubbies (375mls) of Coopers Pale Ale, an ordinary strength beer, while she was at the party. She said that she had 1½ schooners of Pale Ale at Dundee’s (she remembers not finishing a second glass) and part of a stubbie later in the backyard at Ritter Street. She said that she was accustomed to having a beer each day after work. She said that by the time she went to bed, which she estimated to be about 2.00-2.30am, she felt fine and well in control. Although it must be remembered that all the others who gave evidence, with the exception of Ms Schulz, had been drinking, there is nothing in their evidence to suggest that the complainant was noticeably affected by alcohol during the course of the night.
Mr Lee said that he had about 12 stubbies of Pale Ale altogether from the time he arrived at the party until when he went to bed. He also smoked some hashish behind a storage shed at the party, about half a cone at that time. He said that he had a further full pipe of hashish, in company with the accused, in the backyard at Ritter Street before he went to bed. He said that while all this had some effect on him, he did not think it was dramatic. By the end of the party he thought he was “just cruising” and at the time he went to bed, he was in control of his actions: “I felt good, not intoxicated totally again, if you understand that” (Tx 91).
Mr Brine said that he consumed alcohol. During the party and afterwards, he had some beers and also some Jack Daniels and Coke. By the time he went to bed, he said, he wasn’t “too bad. I’d had a few drinks but I wasn’t over the top” (Tx128).
Mr Gray said that he drank beer while he was at the engagement party and, while he was not sure of the amount, he thought that he had about 10 schooners of full strength beer at Dundee’s. He said that by the time he left Dundee’s “I wasn’t sober but I wasn’t totally intoxicated” (Tx137).
Mr Wilson drank beer at the party. He wasn’t sure but he supposed it was 6-7 stubbies of full strength beer. He had some more at Dundee’s.
Mr Kane said that he had at least a dozen stubbies of full strength beer at the party, some more beer at Dundee’s and some more back at the house afterwards. He also smoked some hashish.
The accused gave evidence. He said that he had a stubbie of Pale Ale on the way to Murray Bridge and at least a dozen more at the party, as well as a can of Jack Daniels and Coke. On his own assessment he was “pretty intoxicated, getting a bit patchy” by the time he left the party (Tx178). He also smoked some hashish at the party; he thought it was one pipe. He said that he had some more alcohol at Dundee’s and that he thinks he “just passed out” (Tx179) at Ritter Street.
Each member of that group was asked in evidence to describe the condition of the accused that afternoon and evening. Their descriptions vary but, overall, it is clear that by the time the accused got back to Ritter Street after Dundee’s, he was significantly affected by alcohol. He probably did not have any more to drink after Dundee’s. He was seen to lie down in front of the shed in the backyard. When it seemed that he was going to sleep, Jamie Brine helped him into the house and put him onto a mattress on the floor of the lounge room.
There was some evidence from Mr Kane suggesting that others, apart from the accused, Mr Lee and himself, had smoked cannabis but that evidence was vague and involved some assumptions by Mr Kane that may not be correct. There can be no finding that cannabis was consumed by anyone else.
THE EARLY HOURS OF SUNDAY MORNING
After they all came inside from the backyard, they prepared to go to bed. It is necessary to say something about the house and where people were to sleep in the lounge room.
The front of the house faces south. It has two bedrooms, the main bedroom being at the western end, and the second bedroom between it and a large L-shaped room at the eastern end. The L-shaped room is not divided and is disposed as a lounge at the front, a dining area behind it, and a kitchen forming the bottom of the L. The kitchen is separated from the dining area by a bench. The front door opens directly into the lounge. There is a large window in the front wall of the lounge facing the street. There is a bathroom behind the main bedroom and next to it, a toilet.
Although there are some minor variations in the evidence, I am satisfied that the bedding arrangements were as follows. At the southern end of the L-shaped room, in front of the lounge window, was a cabinet containing a television, stereo and video cassette recorder. A short distance north of the TV cabinet was a Queen size bed (just the ensemble with no bed-head) with one long side up against the eastern wall of the room. This was used by the complainant and Mr Lee. Opposite the bed were two lounge chairs near the western wall of the lounge and Darren Wilson pushed these together to make a bed for himself. In the space between those chairs and the bed, Jonathan Gray put his swag on the floor. There was a couch between the lounge and the dining area further to the north. It ran east-west across the room and Daniel Kane used it as a bed. A mattress was put on the floor between the couch and the bed. That was used by the accused. Jamie Brine and Colleen Schulz used the main bedroom. Ms Spkystra was in the second bedroom.
Jonathan Gray, Darren Wilson and Daniel Kane got into their beds and went to sleep pretty well straight away. At that time the accused was asleep in his bed on the floor, although both Donald Lee and the complainant said that he was muttering in his sleep. The complainant said that when she got into bed she was wearing a three-quarter sleeve top, jeans, socks, bra and g-string knickers. The bed had a fitted sheet on the bottom. She got under a top sheet, on top of which was a quilt. On top of the quilt there was a blanket on Mr Lee’s side of the bed (nearest to the wall) and on her side, an open sleeping bag. It was her recollection that at the time she got into bed the lounge room light was off but the kitchen light was on. As soon as she got into bed, she said, she removed her jeans. When Mr Lee got into bed he was probably wearing a T-shirt and underpants.
The complainant and Mr Lee put on the television to watch Rage, a music program on the ABC. A short time later the accused woke up and went into the kitchen. Jamie Brine heard him and went to the kitchen to find the accused on the kitchen bench eating oranges. Mr Brine said that the accused was making a mess so he helped him to clean up and the accused then went back to the lounge and lay on his mattress. Mr Brine turned the kitchen light off and went back to his bed in the main bedroom.
The complainant and Donald Lee thought everyone else was asleep and, after turning the TV off, they had sexual intercourse: penile/vaginal sexual intercourse. The complainant estimated that this took about 10 minutes at the most. Mr Lee thought that, in all, it took about 20 minutes. After that they both went to sleep, with Mr Lee closer to the wall and the complainant somewhere between him and the other side of the bed. At the time she went to sleep the complainant was wearing her top, bra, g-string and socks. The probabilities are that both of them went to sleep with their heads at the end of the bed nearest to the dining area, ie just above the accused.
THE INCIDENT AND AFTERWARDS
The complainant said that she woke up with somebody’s weight on top of her. She said that she was lying on her back with her legs slightly apart, a position she commonly adopts when sleeping. She said that there was a man face down with his head on her right shoulder facing into her neck. She said that the man’s weight was mainly on the right side of her body and that he was having sex with her. She said she could feel his penis inside her vagina and, when asked how far inside it was, she said “half way” (Tx36). She was aware, she said, that her g-string had been moved towards the left side of her body. She said that he was thrusting into her. His left leg was on top of her right leg and his right leg was on the bed between her legs and pushed up against her left leg. She said that his right arm was on her waist - ie the left hand side of her waist and she assumed that his left arm was underneath him. She said that after she became aware of the penis in her vagina she stretched her torso up and put her hand on the man’s head. At that point the penis came out of her vagina. In her evidence in chief she said that the time between her becoming conscious of someone on top of her and the penis coming out of her vagina was “a matter of seconds, you know, five seconds at the absolute most” (Tx37). When she touched his hair she noticed that it was a lot longer than her boyfriend’s. After the penis came out of her vagina the man put two fingers inside it and moved them “[i]n and out, sort of” (Tx37).
She said that she reached out towards the wall and felt a back and, with the amount of light coming through the curtains on the front window, she was able to make out that this was Mr Lee who was facing the wall. She said that by lifting her left side to obtain leverage she was able to roll to the left from under the man and, as she rolled away, he removed his fingers from her vagina. She said that she rolled as close as she could to Mr Lee so that she also was facing the wall and pushed herself into his back to wake him up. As she was doing that, she said she “could feel somebody masturbating next to me...I could feel it against my right bum cheek, somebody’s knuckles and the top of their penis...I could feel them going up and down” (Tx39). She does not know whether he ejaculated.
The complainant said that she was extremely confused at that stage and that Donald Lee woke up after one or two seconds. As he woke up, he said “What?” and she said “Somebody else is in the bed” (Tx39). She said that he just kept asking “What?” and she thinks she said, “‘Nice friends you’ve got’ or something like that” (Tx40). She said that Mr Lee rolled over and she thought he was trying to look over her to the other side of the bed, and then he told her to swap sides, which they did. She thought that about 20 seconds elapsed between the time she first rolled over towards Mr Lee and when they changed positions, and that during that time she was confused, upset and crying. She said that she formed the opinion that the man was the accused by “feeling his hair and the height of him in comparison to mine, lying in the bed” (Tx41). Mr Lee is very tall. He said in evidence that he is 6 feet 4 inches. The accused is considerably shorter. She believes she told her boyfriend that she thought it was the accused and that Mr Lee, referring to the accused as Paul or Charlie, said words to the effect of “You’d better get out of here or I’ll rip your fucking head off” (Tx41;76-77). She said that she then saw the accused stand up, pull his jeans up and run out the front door. She indicated that she first became aware of his head coming up near the corner of the bed nearest to the kitchen, and that when he stood up, he was by the side of Mr Gray’s swag. She said that she was able to see him pulling up his jeans.
After this she went to the toilet and then to the bathroom to wash her face. She said that as she returned to the bed, the room was still dark and that Donald Lee put his arm out to guide her. She said that at this point Mr Lee said something like, “Did he get his dick in?” and that she said, “Yes” (Tx55). Donald Lee then put on some clothes and went out the front door looking for the accused. At about that time, she said, both Jamie Brine and Colleen Schulz turned on the kitchen light and came into the lounge room. She observed that the other three men were in their beds. It appeared to her that Darren Wilson was waking up but that Jonathan Gray and Daniel Kane were both still asleep. She said that after she had spoken to Ms Schulz, she put her jeans and shoes on and went to the front door where she could see Mr Lee walking around on the golf course over the road. She said that she called out to him to come back and that when he did, he told Ms Schulz to call the police. In fact a police patrol arrived at 5.03am.
In cross examination, the complainant agreed that at the time she was woken by the weight on top of her, she was in a deep sleep and that she was confused and probably still tired. When asked when and how she assessed that half the length of the man’s penis was inside her vagina, she said that she did this about one second after she became aware of the presence of the penis by “gauging as I could feel how far away his actual body was compared to the length of his penis” (Tx70). It is to be noted that at this stage the room was dark except for a glow, probably from a street light, coming through the curtain on the front window, and on her own account, that there were bed clothes on top of her. She was certain that it was the man’s right hand fingers that entered her vagina. She was unable to say whether or not he was clothed.
The complainant confirmed in cross examination that she did not complain of anything other than someone else being in the bed until after Donald Lee asked her the question “Did he get his dick in?’ and by way of explanation, she volunteered that she “only answered questions that were directed to me at that time” (Tx80).
Donald Lee said that after going to sleep, the first thing he became aware of was the complainant poking at him and whispering “there’s someone else in the bed” (Tx94). He said that it was quite eerie, with her nudging him and whimpering, as he described it, “like an injured animal sort of thing”. He was unsure exactly how long it took him to become aware of what was happening. He said that it was very dark but that there was a glow coming through the curtains from a street light. He said that he could make out someone on the other side of the bed. That person seemed to be fully clothed and was on top of the bed covers. He could not say who it was but he believes that the complainant said at some stage that she thought it was the accused. When asked to repeat the words she used he said “there’s someone else’s cock between my legs” (Tx95). He said that he believes she said this before she mentioned that it was the accused. He was asked if he said anything and he replied that he yelled out angrily: “You’d better get out of the fucking bed before I tear your fucking head off” (Tx96). He believes that he said this more than once.

Mr Lee said that the person then rolled off the mattress onto the floor in between the bed and Jonathan Gray’s swag. He said it appeared that this person was wriggling around while he was on the floor “maybe doing his fly up” (Tx97). He said that this person, whose voice he recognised as the accused’s, said words to the effect that he’d better get out of there and ran out of the front door. Mr Lee said that by this time he was in a rage and asked the complainant what was going on and, in particular, “was he trying to fuck you or something?” and she replied “No, he wasn’t trying to fuck me, he was fucking me” (Tx98). He said that it was at this point that the lights came on as Jamie Brine and Colleen Schulz came into the room. He saw that the accused was the only one missing and he went outside looking for him. Mr Lee did not recall suggesting that he and the complainant should swap sides and it was his recollection that when the complainant went to the toilet, the lights were already on. He recalled speaking to the complainant outside at some stage but he was not sure exactly when that was. He conceded that the reference by the complainant to a “cock between [her] legs” could have been made when they were talking outside, although he felt pretty sure it was when they were inside.
Before turning to the other witnesses, it is convenient to note that there is no evidence to suggest that any person other than the accused may have been involved in this incident.
After being asleep for some time, both Ms Schulz and Mr Brine were woken by a noise that each of them thought was either laughing or giggling, but which turned out to be the complainant crying. Ms Schulz said that she went out to the lounge ahead of Mr Brine and thinks that when she got there, the lounge room light was on but she is not sure. She saw the complainant on the bed leaning up against the wall crying in a crouched position. Neither Donald Lee nor the accused were then in the lounge but some time later, Mr Lee came in through the front door. Ms Schulz said there was some conversation between him and the complainant and then they both went outside. She said that she took coffee out to them while they were talking outside and that it was after they both came inside that Mr Lee asked her to ring the police.
Ms Schulz explained that, when they were drawn, the lounge curtains let some light in. They are each made of a single piece of material and, as can be seen from a photograph taken on 1 October 2000, they do not always close completely. She said that on that night there was a gap between them.
Mr Brine said that when he got to the lounge room he saw the complainant sitting on the bed, huddled up with a sheet around her and crying. She appeared to be very upset. Donald Lee was not in the lounge room at first but by the time he got there, Mr Lee had come back in again. He saw the complainant and Ms Schulz have a conversation and, as far as he could recall, the complainant and Mr Lee then went outside for a cigarette. He too said that it was after they came back inside that a call was made to the police.
Mr Gray said that after he woke he heard the complainant crying and her and Donald Lee talking. Mr Lee appeared to be angry at being woken up and he thought they were having an argument. He recalled Mr Lee saying, at one stage, something like “Who’s there?” or “Who is it?” or “What is it?” (Tx140). He also heard Donald Lee say loudly words like “Get the fuck off or I’ll kill you”. After that, he felt someone step on him (near his abdomen) and then he heard the front door shut. He said he did not see anyone; he just felt someone stand on him. It was his recollection that the complainant then went outside crying and that Mr Lee followed her out.
Darren Wilson said he woke to hear the complainant crying on the bed. He heard Donald Lee say “I wish you’d tell me what was [sic] wrong” (Tx148). He said that Mr Lee sounded annoyed and he thought they must have just had an argument, so he tried to go back to sleep again. He worked out that it was the accused who had left by the front door and he remembers Donald Lee going out the front door, but the details are all “pretty sketchy” (Tx150).
Daniel Kane went to sleep on to the couch and did not wake until the time Ms Schulz was phoning the police. He did not add anything further.
The accused said in evidence that he remembers being at Dundee’s and that, although he has some recollection of eight ball being played, he has no clear recollection of what he did or what he had to drink at Dundee’s. He remembers standing around the eight ball table. He said that he has no clear recollection of coming back to the Ritter Street house but he believes he passed out there. The next thing he is aware of, he said, is being woken by Donald Lee shouting angrily that he wanted to rip the accused’s head off and that he had better get going. He said that he thinks that he was then on the floor, and that, being aware that Mr Lee was much bigger than himself, he was scared and took it as a serious threat. He said that he ran out the front door and that Donald Lee followed him. He said that he has no recollection of having to pull up his trousers and that it did not occur to him to ask Mr Lee why he was so angry. He left his jacket and shoes behind. He said that he went across the road to the golf course, where he was shielded by a building and could see Mr Lee outside looking for him. The accused was wearing a T-shirt, jeans and socks.
There is no evidence to suggest that the complainant or the accused had spent any time together at the party, or later, other than in the group. The complainant said that they had not had any private or personal conversation. The accused confirmed that they had only spoken to each other as part of the group, and he said that he neither made any sexual advance to her nor even thought about making one. In response to the complainant’s evidence about the events of that night he said: “I don’t think I could do something like that. I don’t recall it and it’s just not me. I can’t believe it, no” (Tx180).
When the accused was asked why he did not eventually go back into the house, particularly bearing in mind that he had neither shoes nor jacket with him, he said that he was worried because Donald Lee was clearly still angry and was likely to remain so. He denied that he did not go back to the house because he had had sexual intercourse with the complainant while she had been asleep. He said that after some time he decided to try and find Daniel Kane’s car which had been left near the house in Doecke Road. He said that he had a general idea of the area and he thought he could find the car and take shelter there. As it happened, he said, he could not find it and he used a public telephone to call a taxi to take him home to Nairne. As he was getting into the taxi, he was arrested and taken into custody.
Detective Senior Constable Husdell arrested the accused. He went to the Ritter Street house at about 6.50am and then drove around the streets in the area. While he was driving along Adelaide Road towards the South Eastern Freeway he saw the accused near a phone box on the northern side of Adelaide Road; he noticed him because he was not wearing any shoes. He drove past and, looking in his rear vision mirror, he saw the accused cross the road towards a taxi which had pulled up on the southern side of Adelaide Road. Mr Husdell returned and apprehended the accused. An area map shows that the phone box used by the accused is not far from Doecke Road.
Samples were taken from the complainant, the accused and Donald Lee for forensic analysis. The results are not in dispute and can be dealt with briefly.
DNA tests on a high vaginal swab taken from the complainant showed the profile of a sperm fraction which matched Donald Lee, but the accused was excluded as a contributor. Examination of a penile swab from the accused showed that there was no DNA profile from him in background epithelial cells taken from the complainant. The match with Donald Lee is consistent with his having ejaculated into the complainant’s vagina during intercourse earlier in the night.
The inference to be drawn from these results is that there was no semen from anyone other than Donald Lee present in her vagina. Mr Sobieraj, a forensic scientist with the South Australian Forensic Science Centre, said that it is possible for cells containing DNA to be present in pre-ejaculatory fluid but this would have only minute quantities of material containing DNA profile, and the presence of semen, such as was detected, could mask the presence of such minute quantities. Clearly, no inference can be drawn against the accused from that evidence.
Right hand fingernail scrapings were taken from the accused. This sample was a mixture of DNA profile matching the accused’s and DNA from another source or sources. No conclusion was able to be drawn about such a source, even whether it was from a male or female. DNA profiles were also taken from sperm fractions extracted from seminal stains on both bed sheets. Those samples matched the DNA profile of Donald Lee, but the accused was excluded from contributing to them.
In the result, the DNA evidence does not assist the Crown in its case against the accused but it does lead to the inference that the only semen on the bed and in the complainant’s vagina was from Donald Lee.
The complainant was examined by Dr Maiolo at the Women’s and Children’s Hospital between 9.45 and 10.15am on Sunday 1 October. Examination of her vagina showed that there was a red split-type abrasion, approx 1cm long, in the posterior fourchette. This was consistent with blunt trauma from penetration of the labia by a blunt object, which could include a penis, finger or inanimate object. Dr Maiolo was unable to comment on whether this abrasion was more consistent with the alleged rapes or the earlier consensual intercourse with Donald Lee.
THE CHARGES
The prosecution must prove each element of the offence of rape beyond reasonable doubt, and that applies to each count separately. The accused does not have to prove anything. No prosecution witness, other than the complainant, was awake during the alleged incident and there is no useful independent medical or scientific evidence. It is therefore necessary to scrutinise the complaint’s evidence closely and unless her evidence stands up to careful scrutiny and is found to be reliable, there could be no question of the accused of being convicted (Question of Law (No. 1 of 1993) 59 SASR 214). If, in respect of either count, the court is unsure where the truth lies, the verdict in respect of that count must be not guilty because the prosecution will not have discharged its onus of proving that charge beyond reasonable doubt (The Queen v Calides (1983) 34 SASR 355).
The first element that must be proved in each count is intentional penetration. Although, for reasons I shall come to, I am satisfied that the accused was on the bed, the prosecution has not proved beyond reasonable doubt that he penetrated the complainant’s vagina with his penis or his fingers. As stated, it is necessary to look closely at all aspects of the complainant’s evidence.
Account must be taken of the complainant’s circumstances on awakening. On her own admission, she had been in a deep sleep for only a fairly short time. She had been drinking alcohol and was very tired. The evidence does not suggest that she was noticeably intoxicated but she had consumed a reasonable amount and, at the least, it is reasonable to infer that this would have added to the depth of her sleep and sluggishness on being awakened. The first sensation she had as she awoke was someone’s weight on top of her and this caused her alarm. As she repeated on a number of occasions, after she woke up she was very confused. Taken together, these circumstances raise a question about her capacity to be fully alert and astute during a matter of seconds after she woke up.
On her analysis, the time from her coming awake out of a deep sleep until she rolled over into Mr Lee’s back was a total of about 9 seconds. Of this, no more than 5 seconds was the sensation of the penis in her vagina (she agreed that she told the police it was 3-4 seconds) and about 3 seconds was the sensation of fingers in her vagina. It would be unreasonable to regard that analysis as precise but the tenor of her evidence is clear, namely, that the whole incident was very quick, only a matter of seconds. Nonetheless, it is said, in that short time, and in a state of alarm and confusion, she made a number of observations and assessments, some of them quite detailed:
· She was aware that she was under the bed clothes.
·She made an assessment that half the length of the man’s penis was in her vagina. She said that she did this by “gauging as I could feel how far away his actual body was compared to the length of his penis” (Tx70). She did not see his penis. This was done under the bed clothes in a room that was dark, apart from a glow from an outside light coming through the curtains.
·She noted some precise details about the man’s body, namely, that his weight was mainly on the right side of her body, that his left leg was on top of her right leg, that his right leg was on the bed between her legs but pushed up against her left leg, that his right arm was on the left hand side of her waist and that, as to his left arm, she assumed it was underneath him.
· She noted that the man had moved her g-string to the left side of her body.
·On reaching up to feel his head, she noted that his hair was a lot longer than Mr Lee’s.
·By making a comparison of the height of the man compared to her own height (although they were both lying down) combined with the feel of his hair, she formed the opinion that this person was the accused.
·She was able to say that it was his right hand fingers that were put inside her vagina and she observed that, because of the way his weight was distributed, it was awkward for him to do that.
I cannot accept that these are all simply recollections of matters noted at the time. In my opinion they involve a degree of reconstruction and that casts doubt on what is independent recollection and what is the product of reflecting on the matter. In that regard, although it is not possible to say what effect, if any, it had on her awakening sensation, it is not irrelevant to note that the last thing the complainant experienced immediately before falling asleep a comparatively short time before, was sexual intercourse with Donald Lee.
It is important, therefore, to look to what she said at the time and, in particular, to the evidence led by the prosecution about her complaint. While this cannot be evidence of what occurred, it is relevant in assessing the accuracy and consistency of her evidence (Kilby v R (1973) 129 CLR 460).
As mentioned already, her evidence is that when Donald Lee awoke she told him that somebody else was in the bed. In his evidence in chief, Mr Lee confirmed that that was what she said first. He also said that when he looked across the bed, he saw the silhouette of a person who appeared to be fully clothed on top of the covers on the far side of the bed. All of this is, of course, consistent with his yelling to that person to get off the bed. The complainant was adamant that it was not until later that she made mention of any indecent incident. I accept that at some later time, the complainant, in answer to a question from Mr Lee, informed him that there had been penetration. I accept the evidence of Ms Schulz that the complainant and Mr Lee were outside at one stage having a discussion. She has reason to remember because she took coffee out to them.
As to whether the allegation of penetration was first made to Mr Lee shortly after the complainant came back from the toilet or whether it was later while they were both outside, it is not possible to say with certainty, but there are pointers to it being while they were outside. The evidence of other witnesses, to which I have referred, shows that Mr Lee did not suggest calling the police until after he and the complainant had finished their discussion outside and this was after Ms Schulz had made them coffee. This suggests that Mr Lee may not have been aware of the extent of her complaint until after they had spoken outside. Further, although it is not strong evidence, there is some support for this in the evidence of Ms Schulz. She said that when Mr Lee first came back inside the house, he said “that bastard Sheehan has just jumped on top of her” (Tx123). Ms Schulz agreed that she had also said that to the police last October. It is not clear from her cross examination whether at some later stage Mr Lee also said “that bastard raped her” but if so, it was at some time after they had been outside together. Moreover, she said, it was after Mr Lee came back in that he asked for the police to be called because what the accused had done “was inexcusable” (Tx124).
As mentioned, Mr Lee said in evidence in chief that the complainant referred to “someone else’s cock between [her] legs”. She gave no evidence of saying this at all. Mr Lee said that he felt that this was said while they were on the bed, but he conceded that it may have been said while they were talking outside. On his own admission, Mr Lee was angry at being woken up, he had had a large quantity of alcohol and he had smoked hashish twice, one pipeful of it just before he went to bed. While I do not think he was therefore incapable of understanding what was going on, it is clear from the evidence that he took some time to comprehend what was happening when he first awoke. Further, given that at his prompting they talked later about whether the accused’s penis was in her vagina, I am not satisfied that I should prefer his evidence, namely, that she mentioned a penis either between her legs or in her vagina in the initial complaint to him, virtually as soon as he woke up. Looking at the evidence as a whole, it is more likely that this is his memory of part of their later conversation when he asked her “Did he get his dick in?” or words to that effect. Thus, the initial complaint was only that someone else was in the bed, not that the complainant had been subjected to some form of indecency.
It is submitted by the prosecution that, when viewed properly, this was a complaint that took some time to develop to the point where there was mention of penetration. It is also submitted that there are any number of explanations for that, such as, that Mr Lee was not there to be spoken to while he was outside looking for the accused; or that details were more likely to come out when Mr Lee was not shouting at the top of his lungs. There is a difficulty with these submissions. None of these are explanations given by the complainant. The sole reason she gave was that at the relevant time, she was only answering questions that were directed to her. As an explanation, that does not accord with fact and I cannot accept it. The fact is that she did not hesitate to wake Mr Lee and complain that someone was in the bed.
For a complaint to be used as evidence of consistency, it must be made at the first reasonable opportunity. What is the first reasonable opportunity must be determined bearing in mind all the circumstances and having particular regard to the complainant herself (R v Peake (1974) 9 SASR 458). Here, there is no reason why that opportunity should not be regarded as being the time when she first complained to Mr Lee of what was going on, or very close to that time. Although the period that elapsed between then and when she first made mention of penetration, be that shortly after she had been to the toilet or while she was outside with Mr Lee, is not long in the sense of minutes or hours, in terms of the dynamics of what was happening, it was a considerable period. The complaint made at the first reasonable opportunity was not one of any indecency. If she was sure in her own mind at that time that she had just been raped or in some way indecently interfered with, it is odd that she would limit herself, and do so for some time, to a complaint merely that someone else was in the bed. There is no apparent reason why she would have been reluctant to tell Mr Lee, and, importantly, she does not put forward any reason other than the one I have mentioned.

Thus, contrary to the Crown’s submission, the evidence of her complaint does not show consistency. It shows that her complaint did not contain any allegation of rape or indeed, any indecency, until some time later and after there had been some discussion about it with Donald Lee. This lack of consistency must be considered together with the circumstances in which she awoke and the evidence of reconstruction, to which I have referred.
It is submitted by the Crown that the complainant’s distress supports her allegations that the accused committed these offences. I do not accept the submission. Her initial distress is quite consistent with being woken and alarmed by the presence of a third person whose weight is at least partly on her. The escalation of her distress is also consistent with a burgeoning belief that she has been sexually assaulted and this in the context of being questioned by Mr Lee who was in something of a temper. In these circumstances, her distress is not consistent with only having been caused by the offences as charged and therefore it cannot be used as evidence tending to prove that those offences occurred (R v Schlaefer (1984) 37 SASR 207 Per King C J at 216).
In all the circumstances, the complainant’s evidence that her vagina was penetrated does not withstand the necessary close scrutiny. The shortcomings I have identified apply equally to each count and, therefore, the prosecution has not proved beyond reasonable doubt that the accused penetrated her vagina with either his penis or his fingers.
There are two matters outstanding; the reasons for finding that it was the accused on the bed and the use to be made of the evidence of flight by the accused.
I accept that it was the weight of the person that woke the complainant. I accept that Mr Lee saw a silhouette and that when he yelled to that person to get off the bed, that person did. He said that he saw that person on the floor “wriggling around” and added “maybe doing his fly up” (Tx97). I digress for a moment to say that I have some doubt about how much Mr Lee could see from his position on the bed if, as he said, this person was between the bed and Mr Gray’s swag on the floor. However, in any event, I did not understand him to be saying that he saw the person doing up his fly; rather he wondered aloud whether that might have been the reason for the wriggling. That is conjecture, not evidence.
Mr Gray said that someone trod on him and went out the front door. By itself that evidence is somewhat equivocal because the accused’s sleeping position was between the end of the bed and the couch, and if the accused came from that position, he could well have trodden on Mr Gray. However, when this evidence is considered in conjunction with the evidence of the complainant and Mr Lee, it is consistent with the accused being generally between the bed and the swag and in standing up to go to the front door, stepping on Mr Gray. There is, of course, no doubt that it was the accused who went out the front door; he admits that. Taking the evidence as a whole, I am satisfied that it was the accused who was on the bed and that it was he who caused the complainant to wake up. The evidence does not permit a finding as to why the accused was on the bed.
It is put that flight by the accused showed a consciousness that he had committed the offences and that therefore it may be used as evidence of that guilt. It is submitted that the accused ran away, and stayed away, because he knew full well that he had committed these offences and he knew that if he returned, there would be unpleasant consequences. I accept that this could be an explanation for that behaviour. However there is another explanation, namely, that he acted as he did because he had been on the bed when he should not have been on it, he had woken both of them up, Mr Lee was very angry and, as was obvious in the courtroom, Mr Lee was a well built man, considerably bigger than the accused, and threatening physical harm. Thus, the court cannot be satisfied beyond reasonable doubt that the reason for his flight was consciousness of having committed one or both of the offences as charged. Therefore, the evidence of flight cannot be used for the purpose of inferring guilt.
On the prosecution case there is no question of an alternative offence of indecent assault being open on either count. Therefore, there is no call to consider alternative verdicts.
CONCLUSION
For these reasons:
On count one, I find the accused not guilty.
On count two, I find the accused not guilty.

[2001] SADC 104

3 August 2001