R v Slape - [2022] SADC 8

District Court of South Australia
(Criminal)
R v SLAPE
Criminal Trial by Judge Alone
[2022] SADC 8
Judgment of his Honour Auxiliary Judge Barrett
28 January 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
The accused is charged with sexual offences against two women, each six months apart. The defence sought to have the charges involving each complainant severed, in the absence of which there should be a stay of the proceedings.
Held: The charges should not be severed. The accused is guilty of all six charges.
Criminal Law Consolidation Act 1935 (SA); Sentencing Act 2017 (SA), referred to.
Hoch v The Queen (1988) 165 CLR 292; R v C, CA [2013] SASCFC 137; Hughes v The Queen (2017) 263 CLR 338; Harradine v The Magistrates Court of South Australia [2021] SASCA 16, considered.

R v SLAPE
[2022] SADC 8

The accused is charged with six sexual offences against two women. Counts 1-3 allege respectively indecent assault and two counts of rape against KP. That offending is alleged to have occurred on the night of 10 June 2017 at a horse riding event on the accused’s family farm in the South East.
Counts 4-6 allege respectively rape, attempted rape and indecent assault against AF. That offending is alleged to have occurred on the night of 7 January 2018 at a rodeo held in the South East.
Before the trial began on the 26 October 2021, I made rulings relating to severance and a stay/disqualification application.
I turn to describe briefly the course of the pre-trial applications.
Election for Trial by Judge Alone and Related Matters
Pursuant to s 7 of the Juries Act 1927, the accused elected to be tried by Judge Alone. Pursuant to s 7(3), he filed a notice of election dated 24 March 2021 which indicated that he had received legal advice about making the election. His solicitor, Mr John Williamson, filed a Practitioners Certificate dated 24 March 2021, indicating that he had given the accused advice on all the matters relevant to his client’s election.
On the 20 August 2021 the accused filed a notice revoking the above election. The notice acknowledged that he had received legal advice about making the revocation. Mr Williamson filed a Practitioners Certificate dated 20 August 2021, indicating that he had given the accused advice on all the matters relevant to the revocation.
On 3 September 2021, I heard submissions on the question of cross inadmissibility, discreditable conduct and severance. I declined to sever the counts involving the two complainants. Upon my so ruling, the accused withdrew his revocation of election for Trial by Judge Alone.[1]
[1] T14.
The accused sought unsuccessfully to appeal to the Court of Appeal against my ruling on the question of severance.[2] The Court of Appeal’s Judgment was delivered on 14 October 2021. The Court determined that the appeal was incompetent because there had been no application to this Court for a stay on the grounds of abuse of process. The Court also determined that there was no right of appeal. The Court indicated that in any event, permission to appeal should be refused as it was inappropriate to fragment the litigation.
[2] Slape v The Queen [2021] SASCA 121.
On 14 October 2021, the accused applied to this Court for a stay on the basis of apprehended bias. It was alleged that it was an abuse of the processes of the Court for the trial to proceed without severance.
On 19 October 2021, the accused applied for an order that I be disqualified from hearing the trial on the basis of apprehended bias.
I heard the stay and disqualification applications on 20 October 2021. I dismissed both.[3]
[3] T17.
The trial began in Mount Gambier on 26 October 2021.
Because the applications for a stay and disqualification are based upon my declining to sever the counts, it is convenient to set out my reasons for that ruling first.
Reasons for Non Severance
The accused sought to have the charges relating to each complainant tried separately, that is Counts 1-3 should be severed from Counts 4-6. I set out the allegations in respect to each complainant.
Counts 1-3 relate to KP. On Saturday 10 June 2017, KP went with her two teenage children to a long weekend riding event at the family farm of the accused in the South East. The accused lived in the house on the property with his mother and her parents. At the time the complainant was aged 43. The accused was aged 19. The complainant had come to know the accused’s mother, Ms Trudy Slape through a family connection. Ms Slape was in a relationship with Mr Jim Millard although the two did not live together. Mr Jim Millard is the father of Mr Damian Millard. The complainant and Damian Millard had been in a relationship for a couple of years ending in about January 2017. They parted for reasons related to their respective children. They remained on good terms. Mr Damian Millard came to the riding event with his children.
The complainant did not take part in the riding activities during the day, but she joined the rest of the attendees for the evening meal and drinks around a bonfire.
Around midnight the complainant got ready to go to bed in her horse float. Her daughter had set herself up to sleep near Mr Damian Millard’s daughter some distance away. The complainant’s son set himself up to sleep about 15 metres from the complainant’s horse float.
Sometime after she got into her swag, Mr Damian Millard came into the float. After talking for a while the two engaged in consensual penile/vaginal sexual intercourse.
Sometime after Mr Millard left the float, the complainant was falling to sleep when the accused came into the float and laid down on the outside of her swag. He started trying to kiss her on the lips. She pulled away from him saying ‘what are you trying to do?’. The accused then grabbed her head with his right hand and forcibly kissed her. The complainant again questioned him stating ‘what are you doing?’ to which he responded ‘come on’. The accused then grabbed the complainant’s left hand and put it on his erect penis, forcing her hand up and down. She tried several times to pull her hand away, but the accused continued to force her to masturbate him (Count 1). The complainant did not want to say anything loudly so as not to alert her children to what was happening.
When the complainant managed to get her hand away from the accused, he grabbed her head and forced her mouth down over his penis, pushing her head up and down (Count 2). When he let go, she said ‘Josh, we can’t be doing this, just stop’ to which he replied ‘what, are you just going to leave me with blue balls?’.
The accused then got into the swag and pushed the complainant’s legs apart with his hands. The complainant was on her back. She began panicking. The accused engaged in penile vaginal sexual intercourse with her (Count 3). The accused ejaculated inside of her before rolling off and leaving.
The complainant lay in her swag crying and was unable to go back to sleep. She went home the following morning. On Monday 12 June 2017 the complainant told her friend Mr Darren Bayer about the offending.
DNA evidence suggested extremely strong support for the hypothesis that the accused and Mr Millard were the two contributors to traces of sperm on the blanket of the complainant’s swag. There was also extremely strong support for the hypothesis the accused was a contributor to a mixed DNA profile taken from the inner crotch of the front and back of the complainant’s tracksuit pants.
Counts 4-6 relate to AF. On Saturday 6 January 2018, the complainant attended a rodeo in the South East with her housemate and her housemate’s stepsister. They parked their horse float next to the accused’s vehicle and his horse float. The accused participated in the events at the rodeo. At the time the complainant was aged 23. The accused and the complainant had at times worked together and they knew each other from their mutual involvement in the local horse-riding community.
Throughout the afternoon and the evening, the complainant was drinking alcohol and socialising with other attendees, including the accused. The complainant became intoxicated. At about 2.30 am the next day, the complainant’s house mate went to bed in her swag, inside their horse float. The complainant then went to bed in her swag which she set up outside their float. Their float was next to the accused’s float. When the complainant got into her swag, the accused was sitting on or in his float. He came over to the complainant’s swag and got in beside her.
Shortly after getting into her swag, the complainant felt the need to vomit. She went to some bushes where she vomited. The accused went with her and stood behind her. He followed her back to her swag and got in with her again.
The accused attempted to cuddle her before trying to pull her shorts down. The complainant could feel the accused’s erect penis rubbing against the skin of her back. She kept moving away from the accused, trying to stop his advances. She said ‘Josh, it’s not happening, you need to stop’, to which he replied ‘am I not good enough for you?’. She told him she was seeing somebody, and he replied ‘well he’s not here is he’. The accused pulled the complainant’s shorts down and digitally penetrated her vagina with more than one finger (Count 4). The complainant grabbed his hand and threw it away from her body.
The accused continued to attempt to remove her shorts and she could feel his erect penis against her skin around her back and bottom (Count 6).
He attempted to insert his penis into her vagina from behind but was unsuccessful (Count 5). The complainant rolled over trying to push the accused out of her swag. He said ‘I’m desperate, just suck my dick, turn around’. The complainant responded ‘get out, fuck off’. The accused got out of the swag and went to his car. A male known to the complainant Joshua Wilsmore was also present at the rodeo. He had set his swag up for the night with his partner about five metres from the complainant’s swag. Sometime after midnight he was going to sleep when he heard the zip of the complainant’s swag move and he heard her say ‘Josh, get out of my swag, nothing’s happening’. He heard her say words to that effect multiple times and described her sounding ‘pretty pissed off’ and ‘annoyed’. He did not see the accused, but he heard the complainant repeat his name. She was telling him to leave. At some point Mr Wilsmore fell asleep.
After the accused had left, the complainant messaged a friend Mr Harry Baldwin who lives overseas. During the course of her text messages to him, she disclosed the offending. DNA evidence provided extremely strong support for the hypothesis that the accused was a contributor to a tape lift profile taken from the outer upper area and in the inner upper area of the complainant’s underwear. A tape lift in the crotch area of the underwear provided moderate support for the hypothesis the accused was a contributor.
On the 19 January 2021, the prosecution filed a notice of its intention to adduce evidence of discreditable conduct, effectively asserting that the evidence of each complainant was cross admissible. The prosecution asserted that the evidence was cross admissible pursuant to s 34P(2)(b) to demonstrate a propensity on the accused’s part. The terms of the application are ‘the evidence of each complainant taken together, demonstrates that the defendant had at the time of the alleged offending, a particular propensity to opportunistically offend against females known to him. In circumstances where there has been no prior sexual relationship or interest between them and that he would commit the offending in a forceful (but not physically violent) manner, while making comments to coerce the complainants to comply with his sexual demands’.
On 5 July 2021, the accused filed an objection to the Discreditable Conduct Notice.
The prosecution filed written submissions in support of its application on 20 August 2021 and 2 September 2021. The accused filed an Outline of Argument on 4 August 2021. The defence opposed the cross admissibility of evidence and submitted that the counts involving each complainant should be separated.
I heard submissions from the parties on the cross admissibility/severance questions on 3 September 2021. On that day I ruled that the counts should not be severed.[4] I appear not to have explicitly ruled that the evidence was cross admissible although I had come to that conclusion. I indicated I would provide reasons in due course.
[4] T14.
I now provide my reasons for finding the evidence of both complainants is cross admissible and why the charges should all be heard together.
The prosecution submitted that the evidence of both complainants was cross admissible on both propensity and non-propensity grounds. On either ground, the prosecution must demonstrate that the evidence sought to be led meets the requirements of s 34P, generally, but particularly ss 2(a) in respect of non-propensity grounds and ss 2(b) in respect of propensity grounds. Evidence admitted must also comply with s 34R.
Regarding non propensity uses, the prosecution submitted that there was such a similarity of account between the two complainants that the requirements of ss 2(a) were met. The similarities demonstrate the improbability that the allegations were independently concocted or imagined (Hoch v R (1988) 165 CLR 292 at 295 per Mason CJ, Wilson and Gaudron JJ, R v C, CA [2013] SASCFC per Kourakis CJ at [57] and [61]).
Despite the need for a degree of similarity between the two accounts, factual disparities will not necessarily tell against cross admissibility (R v C, CA ibid at [65] and Hughes v R (2017) 263 CLR 338, [2017] HCA 20).
The similarities between the accounts of the two complainants are these:
·The accused knew both, but they did not know each other.
·The accused is alleged to have opportunistically offended against each at bedtime when they were camping at horse events.
·Both women report non-violent but persistent importunity by the accused.
·The accounts of both suggest brazenness in the sense that other people were sleeping nearby.
·The accused knew both women had been drinking alcohol.
The prosecution submits that in these circumstances it is improbable that the two women have independently falsified or imagined their evidence.
Further, the prosecution submits that the alleged offending demonstrates a propensity on the accused’s part to opportunistically engage in sexual activity with women he knows platonically, applying coercive but not violent pressure. The prosecution submits that the evidence of the two women demonstrates an imbedded sexual proclivity to engage in the alleged behaviour.
In compliance with s 34P(2) the evidence has the required strong probative value having regard to the issues in the trial.
In compliance with s 34P(1) the probative value of the impugned evidence substantially outweighs any prejudicial effect.
In compliance with s 34P(3), the permissible and impermissible uses of the evidence may be kept sufficiently separate and distinct. In this case, the impermissible use may be seen as ‘bad person’ reasoning. That is, it is impermissible to reason that because two accounts of sexual offending have been given, the accused must be a bad person, and on that basis, must be guilty.
Mr Jolly for the accused submitted that the evidence of the two complainants is not cross admissible. The evidence does not meet the requirements of s 34P. It is not cross admissible for either propensity or non-propensity purposes. There is insufficient probative weight in the comparison of the two accounts. Neither account has about it any remarkable features which would make compelling the comparison of the two. Sexual offending is commonly committed in circumstances which could be described as brazen. Almost by necessity, an offender must apply some sort of pressure to commit the sexual offences and nonviolent pressure of the sort alleged by both complainants is common. Much sexual offending occurs without previous sexual contact between the parties. There are dissimilarities between the two accounts. The two women are of different ages. The accused knew each in quite different contexts.
KP alleges that the accused forced her to masturbate him (Count 1 – indecent assault). He then forced her to commit fellatio (Count 2 – rape) followed by penile/vaginal intercourse (Count 3 – rape).
AF alleges the accused digitally penetrated her vagina (Count 4 – rape). He attempted to put his penis into her vagina (Count 5 – attempted rape) and he moved his penis against her skin on her back (Count 6 – indecent assault).
In these circumstances there is no remarkable pattern in the alleged behaviour. There is little commonality in the two accounts. More particularly, no propensity is disclosed.
The evidence is not cross admissible. The discreditable conduct objection should be upheld. The counts relating to each complainant should be severed and tried separately.
I found that the evidence of the two complainants was cross admissible and that the charges should not be severed. The basis for my doing so is that the accounts of the two women are, in relevant respects, similar; so similar in my view that it is less probable that the two accounts have been falsified or imagined. That is not to make a finding on the facts but to determine the cross admissibility of the two accounts. The allegations are by two women who knew the accused, but they were not known to each other. On their accounts, the accused has opportunistically committed sexual acts on them when they are bedded down for the night on comparable rural events. While the sexual acts alleged are somewhat different, the accused’s approach is similar. He has committed the acts in a non-violent but coercive manner, in brazen circumstances. Other people were bedded down in the vicinity. The accused knew that both women had been drinking alcohol.
I find that the evidence of the two women is cross admissible for a non-propensity purpose, that is, that there is a similarity of account between them which is of significant probative value. That probative value outweighs the inevitable prejudicial effect. The permissible use of that evidence can be kept sufficiently separate and distinct from the impermissible use, namely, ‘bad person’ reasoning.
I do not find that the evidence of the two complainants is cross admissible for propensity purposes.
I have already indicated I made the above rulings on 3 September 2021. Upon my so ruling, the accused withdrew his application to abandon his election for trial by judge alone. I will not traverse the circumstances of the appeal from my ruling.
I turn to the application filed on 14 October 2021 for a stay on the basis of apprehended bias and the application dated 19 October 2021 for me to disqualify myself.
Applications for a Stay and Disqualification
The issues raised in both applications turn on the question of whether the accused can have a fair trial if I am the trial judge.
The test for this question has recently been revisited by the Court of Appeal in Harradine v The Magistrates Court of SA [2021] SASCA 16. Livesey P at [27] said that the test is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the defendant’s trial. The test is an objective one.
Mr Jolly submitted that, having become apprised of the whole case for the prosecution, I will be reasonably seen to be unable to bring to my fact-finding task in the trial an impartial and unprejudiced mind. I have read the witness statements of both complainants. I have read the statements relating to the DNA evidence and complaint.

While it may not be a complete answer to the defence submission, I do not believe I became privy to any material which would not be led in the trial. I invited Mr Jolly to identify any such material. He did not do so.
If I were to disqualify myself on the basis of becoming apprised of all the evidence to be led by the prosecution in the trial, it would mean that it would generally be expected that a judge declining to sever counts should disqualify himself or herself from hearing the trial. Different considerations might arise if there was disclosed in the pre-trial application material which was not to be led at the trial.
I declined to order a stay and to disqualify myself. In my view in a case where I have not become aware of any material which would not be led at trial, there is no reason to do otherwise.
The Trial
The Prosecution Case in respect of Counts 1, 2 and 3 (KP)
In respect of Counts 1, 2 and 3 the prosecution called three witnesses, KP, Mr Darren Bayer, to whom KP complained about the alleged offending, and Mr Damian Millard, KP’s former partner. The prosecution tendered a report of Professor Jason White (P1) dealing with the likely effects on KP of alcohol and medication at the relevant time. The prosecution also tendered a report of Ms Pamela Fietz (P2) dealing with the results of DNA analyses. Agreed Facts (P9) related to the chain of evidence of the DNA results of both complainants. Agreed Facts 9 and 10 were to the effect that the two complainants do not know each other and have never met, and have not discussed with one another the allegations each has made about the accused.
I will not recapitulate all the evidence to which I have already referred in relation to the pre-trial applications. In material respects the oral evidence of KP corresponds to her witness statements.
KP was aged 43 when she went to the long weekend riding event at the accused’s family farm on Saturday 17 June 2017. She was accompanied by her 13 year old son and 11 year old daughter. The accused was 19 at the time. KP’s older son, who is older than the accused, did not accompany her. KP’s former partner Damian Millard also attended with his two children.
KP said that she had met the accused in 2014 when she had attended an earlier riding event. She had become good friends with the accused’s mother.
KP said that during the evening she consumed in eight hours the 12 bottles of beer she had brought with her. In cross-examination she denied that she became heavily intoxicated. Professor White expressed the opinion in his report that on the basis of the history that he had been given the complainant was likely to have had a blood alcohol content of .16 per cent at the time she went to bed. He thought she might be expected to show some signs of intoxication.
The complainant said that at around midnight she walked unaided to her horse float where she got into her swag. Damian Millard joined her and they had penile-vaginal sexual intercourse. About 15 minutes after Millard left, the accused came into the float. He kissed her, putting his tongue into her mouth. She resisted. He put her hand on his erect and exposed penis and caused her to masturbate him (Count 1 – indecent assault). He forced her to perform fellatio upon him (Count 2 – rape). She said that at that point she no longer resisted. She went “floppy”.[5] She did not call out because her son was sleeping nearby on the other side of a shipping container.
[5]T 31.
After committing fellatio the accused got into the complainant’s swag and put his penis into her vagina (Count 3 – rape). He ejaculated. The complainant said that she froze. She was scared, upset and confused. She felt sick. When the accused left, she cried.
In cross-examination she denied being helped by the accused or anyone else to her float on the way to bed. It was put to her in the morning that she kissed the accused before leaving the event. She denied that.
The complainant said that the next morning she did not tell anyone about what had happened because she did not know how to process it. She was a little scared about what the accused would say. She did not speak to the accused but did speak to her daughter when she saw her jump at the accused and give him a hug. She told her daughter to “pop down”. She left the area around 10 am.
Later that day she was visited at her home by her friend, Mr Darren Bayer. He saw something was amiss with her and called back the next day. The complainant told him that she thought that the accused had raped her.[6] She reported the matter to the police on 20 June.
[6] T 37.
Mr Bayer gave evidence of what the complainant told him on the Monday. He said that she did not identify the person she said had raped her. She referred to him as a 20 year old male. She did not mention the occurrence of the specific sexual acts. She made no mention of the indecent assault or the fellatio.
Darren Millard gave evidence. He was cross-examined about the complainant being helped to her float by the accused.[7] He was somewhat uncertain in his responses to what was being put to him on that topic. Eventually he said that he did not believe the complainant got help to her horse float. In re-examination he said that moments before she left the bonfire to go to bed the two of them discussed meeting up in her float. He took a different route to the float, presumably to make it less obvious to those still at the bonfire that the two of them would be meeting up.
[7] T 79-80.
The uncontested DNA evidence was to the effect that there is a very high likelihood that both Millard and the accused are contributors to sperm stains on the bottom blanket of the complainant’s swag, and the front and rear inner crotch of the complainant’s tracksuit pants.
The Defence Case in respect of Counts 1, 2 and 3 (KP)
The accused and his mother gave evidence. The accused said that he first saw KP at the end of the day’s horse riding. He was at the bonfire with others at the end of the evening. He said the complainant was quite drunk. When she got up to go to bed she was stumbling so he assisted her to her float. He helped her up the tailgate of the float. He helped her get ready for bed. He remained there as she was getting undressed. She was having trouble getting her boots and tracksuit pants off. As she was getting down to her swag, having got undressed, she undid his belt, jeans, button and fly. She pulled his pants and underpants down to his knees and fellated him. Asked about his reaction, the accused said “I was pretty surprised, I didn’t really know what to say, it just all sort of happened pretty quick”. Asked if he ejaculated, he said “I believe so”.[8] The accused denied the complainant’s allegations. He said that when he got dressed he went back to the bonfire.
[8] T 212.
The accused said that just before the complainant left the property the next day she gave him a hug and a kiss.
In cross-examination the accused explained that he was holding onto the complainant as she was getting down to her swag after she had taken her boots and trackpants off. He did so because “I was just worried that she was going to – as she got down, she would nose plant into the wall of her float”.[9]
[9] T 273.
Asked whether the complainant struggled when undoing his clothing, the accused said “well, she didn’t do it – well, as quick as what a sober person would do it”.[10]
[10] T 273.
Asked if he said anything about what the complainant was doing he said “I honestly couldn’t tell you.”
When the accused expressed some uncertainty about whether or not he ejaculated he was asked “you’d agree it’s something that you’d know whether you ejaculated or not.” He replied “well, look how long ago it was. I, as I said, I’ve got a lot of things going through my, going on. I – presume I did. I can’t remember 100 per cent if I did or I didn’t. I presume I did.[11]
[11] T 276.
The accused was asked whether he remembered where he ejaculated. He replied “I could not tell you, sorry”.[12]
[12] T 276.
The accused’s mother said that she was around the bonfire when the complainant left to go to bed. She said the complainant was “fairly well” affected by alcohol. She was not steady on her feet. She needed a bit of help. The accused helped her. He was away from the bonfire for about 10 minutes.
The accused’s mother said that the next morning the complainant told her that she was leaving. She saw the complainant go over to the accused. The accused gave her a hug and a kiss.
In cross-examination Ms Trudy Slape said that she did not know any of the details of the complainant’s allegations against her son. She had been told that DNA evidence linked him to the complainant’s swag. She said the accused had told her that that might be explained by his having borrowed her swag. Neither the complainant nor the accused was asked questions on that topic.
The Prosecution Case in respect of Counts 4, 5 and 6 (AF)
AF as 23 years of age when she went to a rodeo in the South East on 6 January 2018. She went with a housemate and the housemate’s half-sister. They parked their vehicle in the middle of the vehicles of the accused and friends Josh Wilsmore and Crysten Tink. During the day the complainant was drinking cans of beer and cider. She continued drinking during the evening. By the time she went to bed in her swag she was quite affected by alcohol. Her swag was about three to five metres away from that which was occupied by Wilsmore and Tink. Their bedding was in what looked like a small tent.
The accused’s float was also nearby. The accused came and lay down next to the complainant when she got into her swag. Several minutes later she felt the need to be sick. She went behind some bushes and vomited. The accused followed her. When she returned to her swag the accused also got in, lying beside her. He was touching her bottom and breasts. He tried to pull up her shirt and pull down her pants. She resisted physically and verbally. The accused said he just wanted her to suck his penis. He inserted two fingers into her vagina (Count 4 – rape). He then tried to put his penis into her vagina (Count 5 – attempted rape). She felt his penis on her back (Count 6 – indecent assault). Finally the complainant said “fuck off” whereupon the accused desisted and went back to his vehicle. He drove away after 10 or 15 minutes.
The complainant said she could not sleep. She sent text messages to a friend, Henry Baldwin, with whom she was romantically involved and who lived in England. The text messages became MFIP5. She sent the messages at around 4am South Australian time. The messages were to the effect that someone had attempted to rape her and that the man had put his fingers into her vagina. Baldwin told her to ring the police.
In cross-examination it was put to the complainant that during the day she was flirting with the accused. It was put to her that they were holding hands throughout the day. She denied that. It was put to her that at one stage she was sitting with the accused on a futon in a friend’s horse float. She agreed but denied she was there with the accused for over an hour. She denied she was snuggling up to him in the float. She said she was sitting with the accused on the futon for only a couple of minutes.[13]
[13] T 127.
It was put to the complainant that she made the complaint of attempted rape to Baldwin because she did not want him to know that she was flirting with the accused. She said that was incorrect.[14]
[14] T 130.
The prosecution called Wilsmore and Tink, the couple in the nearby swag. Wilsmore said that he heard the complainant say “no, Josh, get out of my swag”. He said he heard her say that about 20 times over a period of time.[15] He also heard her say “fuck off”.[16]
[15] T 138.
[16] T 140.
In cross-examination Wilsmore agreed that the complainant had asked him to tell police what he had heard her say but he denied that she told him what to say to the police.
He agreed that he had been asked by a police officer in 2018 to give a statement but he had declined, saying he did not want to get involved. He did not give a statement to the police until March 2020. He agreed that what he heard the complainant say on the night did not prompt him to get out of bed.
Ms Tink said she did not wake all night. She heard nothing. She denied seeing the complainant flirting with the accused.
The prosecution called Mr Cody Collins. He briefly saw the accused and the complainant sitting alongside each other on a futon in a float. He never saw the two of them holding hands.
DNA evidence was given by Dr Rebecca Pinyon. She said that semen was detected on the outer upper waistband of the complainant’s underpants. There was extremely strong support for the proposition that the accused was one of the contributors to the DNA profile from the detected semen. There was also strong support for the accused being a contributor to a tape lift taken from the inner crotch of the complainant’s underpants.
The Defence Case in respect of Counts 4, 5 and 6 (AF)
The accused was interviewed by police on 3 January 2019 in the presence of his mother. He was questioned only about the complaint made by AF. The accused agreed that he was with the complainant when she was vomiting. He said he held her hair back as she did so. He said he did that to make sure she was alright.[17] He said that after the complainant vomited she resumed drinking alcohol. He denied ever getting into her swag. He denied having any contact with her apart from holding her hair back when she was vomiting.[18] He made no mention of the complainant flirting with him and holding hands with him during the day.
[17] P 37.
[18] PP 38-39.
In his evidence the accused said that during the day the complainant put her arm around him and put her head on his shoulder. He said they did not hold hands.[19] He said that he was in Cody Collins’ float with the complainant for one to one and a half hours. He had his arm around the complainant “throughout the night”. She had her head on his shoulder.[20]
[19] T 227.
[20] T 229.
In cross-examination the accused said that the complainant could be regarded as flirting with him.[21] Later however he said “I wouldn’t necessarily say flirting, but she’d been hanging off me most of the night and that, so yeah. Like later in the night”.[22]
[21] T 299.
[22] T 304.
The accused was asked in cross-examination whether the complainant’s swag was already rolled out after she had vomited or whether he helped her. He said “I believe so, I honestly couldn’t tell you though”.[23] Asked if he saw the complainant get into bed he said “I honestly couldn’t tell you”.[24]
[23] T 231.
[24] T 231.
The accused said that at around 10 pm he had agreed to travel to Dartmoor, just across the Victorian border, to take the place of a friend who had dislocated his shoulder and could not work. He was to start work there around 6.30am the next day. He decided not to go to bed. He stayed at the rodeo until about 2.30 am. He drove home, had a shower then went to the job. The accused denied the second reoffending.
Consideration
I will deal with the cases involving each complainant separately. It is not disputed that if the evidence of each complainant was accepted beyond reasonable doubt, they each of the ingredients of all charges would be made out.
Counts 1, 2 and 3
I found KP to be an impressive witness. She gave her evidence in a straightforward fashion without suggestion of exaggeration. She acknowledged that she did not physically resist the accused for long or call out during the events which occurred in her float. She credibly explained that she did not want to alert her son who was sleeping nearby. She said that she was scared and confused. She said that the accused was stronger than she was. She acknowledged that after some brief physical and verbal resistance she went ‘floppy’. She did not allege that the accused was particularly violent. Her account of his verbal coercion was detailed and credible.
Her credit is enhanced by what I find is consistency of conduct in the manner of her complaint to Mr Bayer. Her distressed appearance on the following day caused him to ask her on the Monday if she was alright. Her complaint to him on the Monday was relatively prompt and such delay as there was understandable. There was what I find to be an immaterial inconsistency in the account of the complaint in the sense that she said that she identified the accused as the perpetrator to Mr Bayer, whereas he says that she described the perpetrator as a 20 year old man. She did not claim to have told Mr Bayer the details of the offending in the sense of describing each of the three acts. That omission does not detract in my view from her credit.
There is some support for the complainant’s account in the DNA evidence. The DNA evidence links the accused to semen stains on a blanket of the complainant’s swag and on her trackpants. She says that the accused ejaculated when he committed the third sexual offence, the rape consisting of penile/vaginal intercourse. The accused’s account does not so clearly explain the DNA evidence as does hers. He was unconvincingly uncertain about whether or not he ejaculated. He is completely unable to say where he ejaculated, if he did. If he ejaculated in her mouth during the only sexual act he describes, then the presence of the semen stains is less easily explained.
I do not find that the DNA evidence is powerful evidence in support of the complainant’s account, but it is of some weight.
Before turning to the accused’s evidence and that of his mother, I deal with the motive put forward by the defence for the complainant to lie about what happened. On the defence hypothesis the complainant has become embarrassed by her willingly committing fellatio upon the accused and has become anxious to avoid Damien Millard finding out about it. There was evidence that there was some animosity between Millard and the accused, and the hypothesis is the complainant was anxious to avoid Millard becoming upset. If that was so, it is somewhat unlikely that she would complain to Mr Bayer. On the other hand, she may have thought it best to head off the accused telling other people about what she had done.
I think the defence hypothesis is unlikely, but I bear in mind that it is not for the defence to provide a motive for the complainant to lie. People may lie for unknowable reasons. It is from start to finish the burden of the prosecution to prove its case beyond a reasonable doubt. Even a rejection of a suggested motive for the complainant to lie adds nothing to the strength of the prosecution case.
On the accused’s account the complainant was the instigator of the fellatio. Her actions were quick and took him by surprise. She said nothing before she committed the act. In the context of what happened with Mr Millard, such an overture by the complainant is unusual. There is no dispute that about when she went to bed she had consensual penile/vaginal intercourse with Millard. If the accused has helped the complainant from the bonfire to her float, then the intercourse with Millard must have happened shortly after she instigated the intercourse with the accused. If, as Millard says was the case, the two of them had discussed meeting in her float shortly before each left the bonfire, the complainant ran the risk that Millard would arrive at the float while the accused was there and might see what she was doing.
I find the accused was an unimpressive witness. His account of the complainant becoming so intoxicated that she needed his help to get to her float, then get undressed, is at odds with his account of her quickly undressing him and fellating him without a word being said. His prevarication about whether or not he ejaculated is not credible.
I reject the accused’s evidence. I also reject the evidence of his mother. Understandably she believes her son’s innocence. However, I am satisfied that the accused did not help the complainant to her float. I am also satisfied that the complainant did not hug or kiss the accused when she left the area the next day. I note the sight discrepancy between the accounts of mother and son of that farewell. The accused says the complainant kissed and hugged him,[25] whereas his mother says that it was the other way round.[26]
[25] T215.
[26] T317.

My rejection of the evidence of the accused and his mother does not assist the prosecution to prove its case. I may only find the accused guilty of any charge if I am satisfied beyond reasonable doubt of the evidence of the complainant. I find her evidence consistent, compelling, and in accord with other evidence. Her account is supported by the DNA evidence. Her credit is enhanced by the evidence of complaint. Her account fits logically with the largely uncontested evidence of Millard.
Further, I find that the accounts of KP and AF are sufficiently similar that it is improbable that either account is falsified or imagined.
I am satisfied beyond reasonable doubt that the accused committed each of counts 1, 2 and 3 upon KP.
Counts 4, 5 and 6
I found AF to be an impressive witness. She frankly acknowledged her intoxication on the night but she gave a clear account of what she says happened with the accused. In effect she says that her repeated rejection of his sexual advances in her swag made him desist. On her account he managed to insert fingers in her vagina (count 4) but he was either unable to complete penile/vaginal intercourse or he desisted when she kept rejecting him. However, the attempt at penile/vaginal intercourse and the placing of his penis on her back may explain the DNA evidence linking him to her underwear. The accused denies any sexual connection with the complainant which would explain the presence of the DNA. While he was at pains to emphasise the extent to which the complainant had physical contact with him during the night, something she denies, that contact does not explain the DNA evidence. AF’s evidence gained some support from the witness Willsmore. He says that from his nearby swag he heard the complainant telling “Josh to get out of my swag”. She said that repeatedly.
The complainant’s credit is enhanced by her prompt complaint to Mr Henry Baldwin shortly after the alleged offending. Defence counsel put to AF that she had made up the allegations about the accused to explain away to Baldwin her flirting with the accused. She denied the suggestion.[27]
[27] T130-132.
In my view, that hypothesis is implausible. That said, the accused bears no onus of establishing a motive to lie. The prosecution must prove its case beyond reasonable doubt. I note that the accused made no mention of any extensive contact between him and the complainant while he was being interviewed by the police.
Despite acknowledging that she became badly intoxicated during the night, the complainant was emphatic that she had not had intimate contact with the accused during the night. Tink and Collins saw no signs of flirting or holding hands.[28]
[28] T153 and 172.
Willsmore’s evidence of the complainant telling the accused to get out of her swag tells against the accused’s account of lengthy flirting earlier on. While Willsmore had not wanted to get involved and did not see fit to intervene on the night, I find that he was a generally truthful and reliable witness.
The accused’s evidence was unimpressive. Despite having had little to drink he was vague about whether or not he had helped the complainant to bed.[29] Despite being ambivalent about describing the complainant’s behaviour toward him as flirting[30] he was at pains to emphasise the extensive contact that they had had during the night, particularly the contact in Collin’s float. In my view that belated emphasis, not mentioned in his record of interview, was designed to bolster the suggested motive for the complainant to lie about him, that is, she lied to avoid her friend Henry Baldwin becoming upset about her flirting with the accused.
[29] T31.
[30] T299 and T304.
I reject the accused’s evidence. That rejection does not assist the prosecution prove its case. However, I find the complaint’s account truthful and reliable. It was supported in the ways I have already mentioned.
Further, I find that the accounts of the two complainant’s are sufficiently similar to make it improbable that their accounts are falsified or imagined. They both, independently of each other, say that the accused sexually offended against them at bedtime at riding events. They both say that the accused was coercive but not particularly violent. He knew that both had been drinking alcohol. There had been no earlier sexual relationship between the accused and either woman.
I am satisfied beyond reasonable doubt that the accused committed the offences alleged in counts 4, 5 and 6 against AF.
Verdicts
Count 1 – Indecent Assault - Guilty
Count 2 – Rape - Guilty
Count 3 – Rape - Guilty
Count 4 – Rape - Guilty
Count 5 – Attempted Rape - Guilty
Count 6 – Indecent Assault - Guilty