R v Smith - [2019] SADC 62

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SMITH
Criminal Trial by Judge Alone
[2019] SADC 62
Reasons for the Verdict of Her Honour Judge S David
22 May 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
Accused charged with one count of rape - trial by judge alone - accused attended at a massage parlour and allegedly raped a masseuse - complainant identified accused as offender from an 'Ugly Mug' flyer warning sex workers of dangerous clients - initial complaint in 2013 - allegations reported to police in 2015 - issue at trial identity of offender.
Held: Not guilty.
Criminal Law Consolidation Act 1935 (SA) ss 46(2), 46(3)(a)(i), 47, 48(1); Evidence Act 1929 (SA) s 34N, referred to.

R v SMITH
[2019] SADC 62

Brett James Smith (‘the accused’) is charged with the offence of rape, contrary to s 48(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA'). He is charged on Information dated 4 August 2017 as follows:
Statement of Offence
Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Brett James Smith between the 1^st day of February 2013 and the 31^st day of March 2013 at Mile End, engaged in sexual intercourse with [CE], by inserting his penis into her vagina, without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact that [CE] was not so consenting.
The accused pleaded not guilty to the charge and elected for trial without a jury. I now publish reasons for the verdict I deliver.
Overview
The complainant ‘CE’ worked as a masseuse at the ‘Purple Sofa’ from late December 2011 until July 2013. She performed massage work involving masturbation. Penile/vaginal intercourse was not permitted as part of her work at the Purple Sofa. On the prosecution case, the accused, using an alias of ‘Josiah’, made an appointment for a massage at the Purple Sofa and, upon attending at the massage parlour, selected CE to provide him with a massage. During the massage, CE asked the accused about his name ‘Josiah’ and where he worked. The accused told CE he was employed trimming coffins at the Casket Company on Richmond Road.
It is alleged the accused penile/vaginally raped the complainant during that massage.
Before CE stopped working at the Purple Sofa in July 2013, she saw a magazine or flyer attached to a pin board in the kitchen at the Purple Sofa. She said there was a photograph of the offender on the front cover of the magazine or flyer, and underneath the photograph was printed information about that person, including an alias ‘Josiah’, the word ‘Findon’ and the words ‘sex offender’. CE identified the man in the photograph as the person who had raped her. It is common ground that the photograph on the magazine depicted the accused.
There was evidence led as part of the prosecution case that the accused worked at the Casket Company at Richmond from December 2012 until October 2013 and that he used the alias ‘Josiah’ to book sex workers in 2012 and 2013.
On the prosecution case, CE first disclosed the alleged rape to a friend, JN, in mid to late 2013. There was some confusion on the evidence as to whether JN was the first person to whom CE complained of the allegations, as there was also evidence she consulted a Dr Templeton in October 2013 and spoke of ‘an attack’ at the Purple Sofa during that consultation.
CE reported the allegations to police on 15 September 2015.
CE participated in a photographic identification procedure conducted by police on 9 January 2016. She positively identified the accused as the man who had raped her. The photograph used in that identification procedure was different to that on the magazine or flyer pinned to the notice board at the Purple Sofa and seen by CE in 2013.
The accused was interviewed by police on 10 October 2016. The record of interview was the subject of challenge, and excluded in the exercise of the court’s discretion. Reasons for that ruling have been delivered separately.
Towards the close of the prosecution case, and after CE had completed her evidence, the prosecutor sought to widen the particulars to allege the offence occurred between 1 February 2013 and 31 March 2013 (rather than between 1 February 2013 and 1 March 2013). The prosecution had only just received material evincing that the accused telephoned the Purple Sofa on four occasions in March 2013, that is, at a time outside of the originally particularised dates. That application was opposed by defence counsel on the basis that the dates were significant, as on the evidence of CE and the accused’s work records, the accused in effect had an alibi for the charged offence. After argument, I allowed the amendment on the basis I would grant defence time to recast their case, if required, and permit defence counsel to have CE recalled. I would not draw any adverse inference against the accused should there be any change in their approach. In those circumstances, I considered there was no forensic disadvantage to the accused in allowing the application to widen the particularised dates.
The accused gave evidence at trial and denied that he had ever engaged CE as a masseuse, as well as the allegation of rape. During the course of his evidence, the accused admitted having telephoned the Purple Sofa on four occasions in March 2013, and having attended the Purple Sofa on two occasions in March 2013 when it was situated at South Road, Mile End and on one occasion when it was situated at Churchill Road, Prospect. The accused said he had engaged another masseuse (not CE) on each of those occasions. The accused admitted having used the alias ‘Josiah’ when engaging sex workers. He also agreed he worked at the Casket Company, Richmond in 2012 and 2013. The accused denied having committed the charged offence of rape.
The issue at trial was the identity of the offender. On the defence case, the prosecution had not proved beyond reasonable doubt that the accused was the man who raped CE in early 2013.
Legal elements of the offence of rape
The offence of rape is comprised of three elements or ingredients, each of which the prosecution must prove beyond reasonable doubt.
First, the prosecution must prove that the accused had sexual intercourse with the complainant, CE. The term ‘sexual intercourse’ includes a person having penile/vaginal sexual intercourse with another, or, a man placing his penis inside a female's vagina or labia majora. As to this element of the offence, CE gave evidence that the accused pinned her face first onto the massage table and placed his penis inside her vagina.[1]
[1] T40.36 – T41.2.
Secondly, the prosecution is required to prove that the accused had sexual intercourse with CE without her consent. ‘Consent’ means a free and voluntary agreement to engage in the sexual activity which is the subject of the charge.[2] A person is taken not to be freely and voluntarily agreeing to sexual activity if that person agrees because of the application of force or an express or implied threat of the application of force.[3] A person is not to be regarded as having consented to sexual intercourse merely because she or he did not sustain any physical violence, or because she or he did not sustain any physical injury during the sexual activity.[4]
[2] Section 46(2), CLCA.
[3] Section 46(3)(a)(i), CLCA.
[4] Section 34N, Evidence Act.
CE gave evidence that she did not agree to have sexual intercourse with the accused.[5] More specifically, she said the accused touched her on the breast and she told the accused we ‘don’t do that here’ and he couldn’t touch her.[6] The accused next placed his hand down her underwear, and she again said that was ‘not what happens here’.[7] She warned him about a ‘three strikes policy’, that is, after a third inappropriate touching or behaviour, a client is asked to leave and the massage is cancelled.[8] CE said the accused then wrapped his legs around her and tried to pull her against his body. [9] CE said that was his second strike and he had one more chance or he was getting kicked out.[10] CE then went to get some massage oil when the accused grabbed her, pushed her onto the table and began to rub his genitals against hers.[11] She told him that ‘this is not on’ and ‘we don’t do this here’ and to leave.[12] CE said the accused then forced his penis into her vagina and began having sexual intercourse with her.[13] CE said she then stopped struggling so as not to get hurt.[14] On the prosecution case, CE did not consent to the act of penile/vaginal sexual intercourse.
[5]    T40.30 – 34.
[6]    T38.19 – 23.
[7]    T38.25 – 32.
[8]    T33.1 – 3.
[9]    T39.10 – 13.
[10] T39.23 – 25.
[11] T40.9 – 30.
[12] T40.31 – 34.
[13] T40.37 – T41.1.
[14] T41.26 – 30.
Thirdly, the prosecution must prove that the accused either knew that CE was not consenting, or, that the accused was recklessly indifferent to CE’s lack of consent. A person is recklessly indifferent to the fact that another person does not consent to sexual intercourse if: (a) he is aware of the possibility that the other person might not be consenting to the act but decides to proceed regardless of that possibility; or, (b) he is aware of the possibility that the other person might not be consenting to the act but fails to take reasonable steps to ascertain whether the other person does, in fact, consent before deciding to proceed; or, (c) he does not give any thought as to whether or not the other person is consenting to the act before deciding to proceed.[15]
[15] Section 47, CLCA.
On the prosecution case, CE had warned the accused that there was to be no sexual touching by the accused of CE, and immediately prior to the accused inserting his penis in her vagina she asked him to leave. The prosecution submits that in those circumstances the accused must have known at the time he placed his penis inside her vagina, CE was not consenting to penile/vaginal sexual intercourse. Alternatively, the prosecution submits that the accused was recklessly indifferent to the fact CE was not consenting, that is, he was aware of the possibility that CE might not be consenting but decided to proceed with the sexual activity regardless of that possibility.
There was no real dispute at trial that CE was raped by a male offender in early 2013. There was no issue taken with CE’s honesty or reliability as to what physically took place between herself and the offender during the massage in which she said she was raped. Nor was any issue taken with the prosecution case that CE was not consenting to the alleged sexual activity or that the offender would have been aware of her lack of consent. The issue at trial was whether the prosecution had proved beyond reasonable doubt that the accused was the offender.
Standard legal directions
I apply the following principles and directions in reaching my verdict. I will later turn to some further legal directions in the context of the relevant evidence.
The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The burden of proving the charges lies wholly upon the prosecution. The accused is not obliged to prove anything. Nothing short of proof beyond reasonable doubt will suffice. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. Before the accused is convicted of any offence, I must be satisfied that the prosecution has proved beyond reasonable doubt each element of the offence. In these reasons, if I use the words ‘proved’, ‘established’, or ‘satisfied’, I mean to a standard of proof beyond reasonable doubt. If I am satisfied that there is an explanation consistent with the innocence of the accused, or I am unsure of where the truth lies, then I must find the accused not guilty.
In this trial, the accused gave evidence. That evidence is to be assessed like the evidence of any other witness in this trial. However, it is not for the accused to prove his innocence. Even if I were to reject the accused’s evidence as a reasonable possibility, I still need to be satisfied beyond reasonable doubt of the prosecution case before the accused could be convicted of the offence.
Special arrangements were put in place for CE, without objection. The court was closed during CE’s evidence, and CE was also accompanied by a court companion. I have not drawn any adverse inference against the accused because such arrangements were put in place, and I have not placed any extra or undue weight on CE’s evidence because of those arrangements.
Evidence was led, without objection, about some negative aspects of the accused's character and lifestyle. Those matters included that the accused was charged with having physically assaulted a former associate and sex worker who subsequently committed suicide. The charges were subsequently withdrawn by the prosecution. That evidence was relevant to the timing and production of the flyer containing the accused’s photograph from which CE first identified the accused as the offender. Evidence was also elicited from the accused that he was previously convicted of rape, and there was evidence led as part of the prosecution case that he was on parole at the time of the alleged offending, which was relevant to the accused having told lies to his parole officer about having not contacted sex workers in breach of his parole conditions.
The abovementioned prejudicial material has not been used to reason that the accused is the sort of man to have committed this offence or that he has a propensity to commit this offence and he is therefore more likely to be guilty of the charged offence of rape.
CE’s evidence
CE gave evidence that she started working at the Purple Sofa around Christmas 2011 and ceased working there around July 2013.[16] CE said the Purple Sofa was a massage parlour which also offered a masturbation service to clients.[17]
[16] T28.11 – 16.
[17] T28.20 – 22.
CE said that she understood ‘full sexual intercourse’ (penile/vaginal or penile/anal sexual intercourse) between workers and clients was not to occur on the premises.[18] She said other sexual services (such as oral sexual intercourse) could be organised privately to occur off the premises.[19] CE said that she never provided any other sexual services off premises whilst she worked at the Purple Sofa.[20]
[18] T31.6 – 33.
[19] T32.1 – 3.
[20] T32.5 – 8.
CE said that at her induction another worker told her about the ‘three strikes policy’. She said the policy involved giving a client two warnings for not abiding by the rule not to sexually touch her, then a final warning before asking the client to leave.[21] She said that a small number of clients had touched her, and she had given them a strike. She said no other client had gone past the first strike before the day of the alleged rape.[22]
[21] T32.33 - T33.3.
[22] T33.7 – 10.
CE said on a day when working at the Purple Sofa, she and four or five other girls, went in to do an introduction with a client who had made a booking, about half an hour earlier, using the name ‘Josiah’.[23] The girls were sent into a room one by one and then returned to the waiting area until the receptionist advised who had been chosen.[24] As to when this occurred, CE said it was ‘around February’;[25] the weather was warm on this day,[26] and it was a weekday because two of the girls (Alicia known as ‘Georgie’ and Libby known as ‘Bridgette’) were present and they only worked on weekdays.[27] CE said she was confident it was a Wednesday because her favourite receptionist, Rosie, was working and Rosie only worked on Wednesday and Saturday.[28] She said the appointment was before lunch time and she believed it was around 11am or 11.30am.[29]
[23] T33.11 – 25.
[24] T34.33 – 36.
[25] T33.34 - 36.
[26] T33.37 – 38.
[27] T34.6 – 12.
[28] T34.14 – 18.
[29] T34.25 – 27.
CE said that she was advised that the male had selected her and that he had been sent to room 3.[30] She said she went to the room and the male introduced himself using the name Josiah. He took his clothes off very quickly and left his shoes and socks on the floor.[31]
[30] T34.38.
[31] T35.13 – 16.
As to a description of ‘Josiah’, CE said that she estimated he was about 6’2” or 6’3” tall, very well built, Caucasian and aged in his mid to late 30s.[32] CE said that she could recall his face because she memorised it when he was leaving the room (after the alleged rape).[33] He had blue or green eyes, a square strong distinctive jaw, a serious look and short hair.[34] CE said that he had a tattoo on his left shoulder and on his chest.[35] She thought he was circumcised, but his penis was erect when within her view so it was difficult to tell if he was circumcised or not.[36] With reference to the tattoos, in cross-examination, CE agreed that she told the police in a statement given on 15 September 2015: ‘I recall tattoos, particularly one on his right shoulder, left upper arm and on one part of his chest. I think it might be over his heart. I think they are all the tattoos he had.’[37] She agreed in evidence that what she told the police was the truth, to the best of her memory.[38]
[32] T35.18 - T36.16.
[33] T36.17 – 18.
[34] T36.19 – 23.
[35] T36.27 – 29.
[36] T36.36 – 37.
[37] T60.22 – 25.
[38] T60.33 – 37.
CE said ‘Josiah’ initially laid on his back for the massage, which she considered ‘strange’.[39] She said she commenced massaging his feet and worked her way up the right side of his body.[40] She said she tried to make conversation with him, but he wasn’t talkative.[41] CE said she asked him about ‘the basics’ including where he worked, and about the name ‘Josiah’.[42] He told her he made caskets for a living.[43] She asked whether he worked at the Casket Company on Richmond Road, and he replied that he did.[44]
[39] T37.5.
[40] T37.18 – 21.
[41] T37.21 – 25.
[42] T37.25 – 33.
[43] T37.36 – 38.
[44] T38.3 - 10.
CE said that when she was massaging his shoulder, ‘Josiah’ quickly reached over and grabbed her left breast firmly. She said she told him they ‘don’t do that here’, and that he couldn’t touch her. She said he appeared to be trying to coerce her. She said he slipped his hand down her underwear, and she again said that was ‘not what happened here’. She said she told him about the three strikes policy and gave him a strike.[45]
[45] T38.16 – 32.
CE said he then laid back down on the table and let her continue with the massage. She said he subsequently sat up on the table, with his legs hanging off the side of the table. He tried to pull her in towards his body. She said he wrapped his legs around her legs and pulled her into him. CE said she lost her balance and fell into him. She put her hands on his shoulders and pushed herself away from him.[46] CE said that she told ‘Josiah’ that was his second strike and that he had one more chance or he was going to be kicked out.[47]
[46] T39.2 – 21.
[47] T39.23 – 25.
CE said he laid back down on the table. She turned around to take the oil from the shelf. CE said he was then standing alongside the table and grabbed her right wrist and ‘yanked’ her arm so that she landed with her chest on the table. She said that he placed either his arm or hand on the middle of her back and pinned her to the table. She said he used his knees to push her legs apart, and pulled her underwear to the side, and began to rub his genitals against hers.[48] CE said she told him ‘this is not on’, ‘we don’t do this here’ and to leave.[49] She said he ignored her and forced his penis into her vagina and began having penile sexual intercourse with her without her consent.[50]
[48] T40.9 – 30.
[49] T40.31 – 34.
[50] T40.36 - T41.2.

CE said she was ‘pretty terrified’.[51] She said that she stopped struggling so as not to get hurt. She said ‘Josiah’ squeezed her throat and she panicked.[52] She said he let go of her throat, and ejaculated into a towel to the side of the table.[53]
[51] T41.8.
[52] T41.28 – 32.
[53] T42.6 – 11.
CE said that she laid on the table, as she thought if she stood up he might assault her again.[54] She stayed on the table long enough that when she got up he was dressed and ready to leave.[55] She then walked him out.[56] CE said she took everything from that room and put it in the washing basket.[57] She said she had a shower, collected herself and then returned to work.[58] She said she finished her shift and didn’t tell anyone about what had happened. As CE explained: ‘I wasn’t sure if I would be required or pressured to report it to the police. I wasn’t sure if I was ready to report it or if I wanted to report it at all. I didn’t know if I was – I thought I might have been breaking the law by earning money this way. Nobody knew that I worked there. My sister knew for safety reasons, not that that helped. But there would have been a lot of things uncovered had this come to light in my own personal life. And I also didn’t want to create fear amongst the girls. At the end of the day these were my colleagues, these were the girls that I saw every day at work and I was friends with some of them. I didn’t want to scare anyone. I wrote it off as a one off.’[59]
[54] T42.22 – 24.
[55] T43.4 – 5.
[56] T43.7 – 8.
[57] T43.9 – 11.
[58] T43.11 – 13.
[59] T43.18 – 31.
CE said that she continued to work at the Purple Sofa as she didn’t want to raise suspicion and she needed the money.[60] She said she never saw the client ‘Josiah’ in person at the parlour again.[61]
[60] T43.37 – T44.1.
[61] T44.9 – 12.
CE said one day she went into the Purple Sofa and saw a magazine distributed by the Sex Workers Industry Network or ‘SIN’ with a photograph of the client ‘Josiah’ on the front cover. The magazine was on the pin board in the kitchen. CE said she recognised the man depicted in the photo as the man who had raped her in ‘less than a second’.[62] CE said she saw on the front cover the word ‘Findon’, the name Josiah, as well as the words ‘sex offender’.[63] She said the magazine was referred to as the ‘Ugly Mug Book’, and it was published by ‘SIN’ to warn sex workers about potentially dangerous clients.[64]
[62] T44.16 – 27.
[63] T45.1 – 12.
[64] T46.12 – 14.
CE’s initial complaint
CE said the first person she told about the alleged rape was JN, a close friend and co-worker. CE said this conversation occurred on the front porch of the house of another co-worker later that year,[65] a few months after she left her employment at the Purple Sofa, and in around September or October 2013.[66] CE said in evidence in chief: ‘I explained that I had an experience with a client where I believed I was going to be seriously injured. However, what had occurred was the rape. I told her the details I was comfortable with sharing and left it at that… I explained the way in which he had attacked me. I explained how I felt at the time. And I explained the sick feeling to my stomach when I saw that photo.’[67] In cross-examination, CE said she told JN ‘the way that he had restrained me physically, I explained how the booking started out and helping him leave and how I hadn’t said anything and how I wished she’d been there so I had someone to talk to’.[68] CE denied that she told JN that the offender was ‘the guy, but I didn’t recognise him from the poster when he came in’.[69] She denied that she had seen the Ugly Mug flyer or magazine with a photograph of the accused before the alleged rape.[70]
[65] T48.9 – 13.
[66] T74.10 – 18.
[67] T48.15 – 25.
[68] T78.16 – 20.
[69] T79.24 – 26.
[70] T79.32 – 38.
JN also gave evidence about CE’s complaint. JN said that she and CE had a conversation at the ‘Feast Picnic’ at Bonython Park.[71] It is an agreed fact that the festival took place on Saturday 9 November 2013.[72]
[71] T84.33 – 36.
[72] Agreed Facts P9, para 13.
JN said CE told her that ‘something had happened at work, while she was working on a shift that I wasn’t there for where some person that had come in and they had, from my understanding done something untoward’.[73] As to the person who had committed the offence, JN said that she ‘can’t remember if she mentioned the poster or if she mentioned that, like, the person that we had been warned about had come in but whoever – like, whether it was the poster or whether or not it had been the person that we had been like told about was coming in, that was the person that she was referring to and she was saying that she didn’t know that they were them’.[74] JN said that as a result of the conversation she told CE to speak to somebody about what happened. She said that she thought CE was either seeing someone about it or planning on seeing someone about it. [75]
[73] T85.25 – 28.
[74] T87.19 – 28.
[75] T88.34 – 38.
In cross-examination, JN agreed that she told police on 26 January 2016 that CE told her ‘that was the guy but I didn’t recognise him from the poster when he came in’.[76] JN agreed in evidence that what she told the police was true[77] and accurate.[78] If CE made this statement to JN, and it was true, then the alleged rape occurred after the photograph of the accused was pinned to the noticeboard at the Purple Sofa, and on the defence case it renders it unlikely that the accused is the offender, as the Purple Sofa would have been unlikely to accept the accused as a client, and CE, having seen the photograph, would have recognised the accused and been unlikely to accept him as a client.
[76] T93.4 – 6.
[77] T94.14 – 15.
[78] T95.4 – 5.
I was not impressed by JN’s evidence on the topic of CE’s complaint. She was not an articulate witness and she struggled to comprehend and answer several straightforward questions. There was little specificity in her evidence and she presented as having recalled little of her conversation with CE but the fact of the complaint. She appeared to have reconstructed the circumstances in which she says the conversation took place and the terms in which it was made.
I prefer and accept CE’s evidence on this topic; that she complained to JN in the circumstances as described by her, and at a time before she consulted Dr Templeton. I do not accept that CE told JN words to the effect that she didn’t recognise the accused from the poster when he came in. I also accept CE’s evidence that the incident of the alleged rape occurred before she saw the photograph of the accused pinned to the noticeboard at her workplace.
There may be many reasons why an alleged victim of sexual offending makes a complaint about an offence to a particular person at a particular time, and I accept CE’s evidence as to why she didn’t immediately complain of the alleged rape.
CE’s evidence of complaint to JN is relevant to show how the allegations first came to light and to demonstrate consistency of conduct on the part of CE. It is relevant in support of her credibility as to the fact of the alleged rape, and what she says occurred during the alleged incident. The evidence of CE’s complaint to JN does not demonstrate the truth of what CE said occurred on that occasion. Nor is it relevant as support for CE’s reliability as to her identification of the accused as the offender.
Consultation with Dr Templeton
I am satisfied that CE first complained of the alleged rape to JN, and that her consultation with Dr Templeton was after her initial disclosure to JN.
It was suggested to CE by defence counsel that she had not spoken of the alleged rape to Dr Templeton. CE disagreed with this suggestion and said: ‘I explained that I had been working at a massage parlour, that a client had forced themselves upon me without consent and had not used protection ... I mentioned that I was sexually assaulted because otherwise I wouldn’t have required STI testing.’[79]
[79] T76.29 - 32; T77.3 – 5.
Dr Templeton gave evidence that CE told her of ‘an attack three months earlier, there was a lump in her groin which made her think it may in some way be related and she should come for a check-up’.[80] Dr Templeton also noted that CE told her the attack occurred while she was working in the massage industry.[81] Dr Templeton agreed that CE didn’t say whether it was simply a physical attack or a sexual attack, and she agreed that whilst she ordered STI checks this was a normal approach taken for patients that work in the sex industry.[82] Dr Templeton said that had CE provided specific details of a sexual assault she would have recorded that in her notes, and she made no such note.[83]
[80] T135.23 – 26.
[81] T135.34 – 38.
[82] T136.1 – 8.
[83] T136.9 – 15.
Defence counsel relied on the discrepancies between the evidence of CE on the one hand, and Dr Templeton on the other, as to what was said by CE during her consultation, to undermine CE’s reliability and credibility as a witness. Whilst the detail suggested by CE is not recorded by Dr Templeton, as much is consistent with CE believing she had provided Dr Templeton with more detail then she in fact did. I do not accept any such lack of detail in the account recorded by Dr Templeton materially undermines CE’s credibility or reliability as a witness.
Report to police
CE reported the allegations to police on 15 September 2015.[84] She said she decided to report the matter to police because her partner was supportive, understood her trauma, and had a family involvement with police.[85]
[84] T56.15 – 18.
[85] T48.26 – 33.
CE participated in a photographic procedure with police on 9 January 2016.[86] CE said she was shown a number of photos on a computer screen with photographs of different males numbered 1-8.[87] She said she identified photograph 4 as the person who raped her and she was 100% sure that photograph was of the man who had raped her.[88] Photograph 4 depicted the accused.[89]
[86] P8; T55.19 – 21.
[87] A disc of the procedure was tendered as P8.
[88] T56.7 – 14.
[89] T124.21 – 29.
Prosecution case that the accused was the offender
I formed the impression that CE was an honest witness who genuinely believed that the offender was the man whose photograph was on the front of the Ugly Mug flyer or magazine pinned to the notice board. Similarly, I am satisfied that CE genuinely believed the photograph of the man she selected in the photographic identification procedure (the accused) was the offender.
The central issue in dispute at trial was whether CE’s identification of the accused as the offender was reliable, and whether the prosecution has proved beyond reasonable doubt the identity of the perpetrator of the alleged rape as the accused.
In addition to CE’s evidence of identification, the prosecution relied on the following pieces of circumstantial evidence in support of its case that the accused was the offender:
1CE gave evidence that the offender booked his appointment under the name ‘Josiah’, and confirmed his name was Josiah during the massage. There was evidence from AR, a full time sex worker at another massage parlour, that the accused had used the name ‘Josiah’ on three occasions when booking an appointment with her in 2014.[90] She came to know the man ‘Josiah’ as the accused Brett Smith, with whom she later had an intimate relationship.[91] The accused admitted in evidence he had used the alias ‘Josiah’ when making bookings with sex workers,[92] and that he may have used the name Josiah to make bookings at the Purple Sofa.[93]
2CE said the offender told her he made caskets for a living, and when asked by CE whether he worked at the Casket Company on Richmond Road, the offender replied that he did.[94] There was evidence from Paul Callahan, the general manager of the Casket Company, that the accused worked there from late December 2012 until October 2013.[95] The accused admitted in evidence having worked there at those times.[96]
3The close proximity of the Purple Sofa to the accused’s employment,[97] and to the accused’s residential address as at early 2013.[98]
4A telephone subscribed to the accused was used to call the telephone number of the Purple Sofa four times during March 2013.[99]
5According to the work records of the Casket Company there are a number of days in early 2013 when the accused worked irregular hours giving him the opportunity, on the prosecution case, to attend at the Purple Sofa and commit the alleged rape.[100] In particular, a phone call was made from the telephone subscribed to the accused to the Purple Sofa on 18 March 2013 and the accused is recorded as leaving work at 9.44am on 19 March 2013.
[90] T115 - T116.
[91] T117.20 – 36.
[92] T284.28 – 36.
[93] T286.1 – 4.
[94] T37.36 – 38.
[95] T119 - T120.
[96] T269.12 – 32.
[97] The Casket Company at 257 Richmond Road, Richmond is 3.2km from the Purple Sofa at 243 South Road, Mile End: P9, paras 4, 5 and 7.
[98] From February 2013 until July 2013 the accused was living at an address at Findon which is 5.8km from the Purple Sofa at 243 South Road, Mile End: P9, paras 3, 5 and 6.
[99] Agreed facts, P9 para 18.
[100] P7.
Has the prosecution proved the accused was the offender?
The following aspects of the prosecution case caused me to doubt the reliability of CE’s identification of the accused as the offender and more generally that the prosecution had proved beyond reasonable doubt the offender was the accused.
The circumstances in which CE identified the accused as the offender
It is unclear on the evidence the precise document from which CE first identified the accused as the offender. CE said she saw a photograph of ‘Josiah’s’ face on the front page of a magazine referred to as the ‘Ugly Mug Book’ pinned to a notice board at the Purple Sofa, and the photograph depicted the man who had raped her. CE said the photograph on the magazine was the same as the photograph tendered as P2. It is common ground that P2 depicted the accused. CE said she also saw, on the front cover of the document, the words ‘Findon’, ‘Josiah’, as well as ‘sex offender’. She said there were also four lines of aliases.[101]
[101] T45.1 – 17.
A document was produced to CE by the prosecutor during evidence which, on the prosecution case, was said to be the flyer or magazine pinned to the notice board from which CE made her initial identification of the accused as the offender.[102] CE did not recognise this document as the front cover of the magazine depicting the offender which she had described earlier in evidence. Indeed said she had never before seen this document. However, CE gave evidence that the photograph of the person shown on the document was the same as that which she initially identified as depicting the offender.[103]
[102] MFI P6.
[103] T45.22 – 37.
Ms Reid (the owner of Purple Sofa) said that she can recall only one ‘Ugly Mug’ magazine that had a photo on the front cover. She said it was a yellow A5 flyer, which contained a photo and details, phone numbers and other information.[104]
[104] T141.12 – 27.
Ms Harrison (who worked for SIN from September 2013 and was involved with the Ugly Mug Facebook page from 2009) said she became aware of Brett Smith through a person ‘POS’, a sex worker and former partner of the accused, who had alleged that the accused had assaulted her. Ms Harrison said that POS sent her a photograph via SMS on 27 April 2012.[105] Ms Harrison sent that photo along with other information to her network of about 150 workers, including brothels, massage parlours and the Purple Sofa.[106] Ms Harrison said that information about the accused was also posted by POS on Twitter, Facebook and Instagram in 2012.[107]
[105] The photograph was tendered as P5.
[106] T102.25 – 35.
[107] T114.1 – 22.
Ms Harrison said she created a document with more information about Brett Smith (MFI P6) in July 2013 in response to SIN’s document about Brett Smith which she believed did not include adequate information. She said she sent the document she produced to her network of sex workers, including to the Purple Sofa.[108] She said extra information was added to the document over time as they received it from sex workers.[109]
[108] T103.18 – T104.4.
[109] T106.1 – 18.
Ms Harrison said that the photograph used in P2 was the same as the photograph sent to her by POS[110] and as that used to create the latter flyer.[111] She said that P2 was the only photograph she ever used in compiling flyers or documents about the accused.[112] Ms Harrison said she compiled information with phone numbers that POS and other sex workers had provided to her. She then circulated that information, via Facebook, SMS and email, as more information was received, and she would send it every time she sent out the Ugly Mug magazine. Ms Harrison said that she was never aware of where Brett Smith worked,[113] so presumably that information could not have been disseminated by her on a flyer, in the Ugly Mug magazine or more generally.
[110] P5.
[111] MFI P6.
[112] T107.15 – 17.
[113] T107.30 – 33.
Ms Harrison said SIN provided a monthly flyer to sex workers as an A5 sized booklet. She said the booklet included details of reported dangerous clients, however, it was text only and did not contain photographs. [114]
[114] T105.8 – 19.
It is clear on the evidence that only one photograph of the accused was circulated to brothels and massage parlours. However, there is no evidence independent of CE, as to what was written on the flyer or document upon which his photograph was printed. What is clear from CE’s evidence is that the accused’s photograph and the word ‘sex offender’ were displayed on the document. The accused was also a man that on his own admission had frequented the Purple Sofa on a couple of occasions prior to CE having seen the photograph. There was thus at least a reasonable possibility that CE had seen the accused at the Purple Sofa before she saw the photograph.
Notwithstanding CE’s clear evidence that she instantaneously recognised the man in the photograph (the accused) as the offender, I consider there is room for error on CE’s part for the following reasons: the offender was a stranger to CE before the alleged rape; her opportunity to make observations of the offender occurred in a poorly lit room and ultimately during a very frightening and stressful incident; there was evidence of the accused having attended at the Purple Sofa on other occasions around the time of the alleged rape; CE’s physical description of the offender differs in a couple of material respects with the accused’s appearance (which I will turn to in more detail shortly); and finally CE’s initial identification of the accused was from a document which had the words ‘sex offender’ written alongside a photographic image of him.
CE’s subsequent identification of the accused as the offender in January 2016 during a formal police photographic identification procedure, and her confidence when selecting a photograph of the accused, is in my view infected by her having earlier seen the accused’s photograph (P2) pinned to the noticeboard at the Purple Sofa. There is a risk that CE, in positively identifying the accused’s photograph as being that of the offender, was comparing the accused’s photograph with her memory of the photograph pinned to the noticeboard (P2), rather than with her actual memory of the offender. I have arrived at that view notwithstanding CE’s apparent certainty that the photograph she selected was that of the offender.
Further, the photograph used in the identification procedure, whilst not identical, was very similar to the photograph pinned to the noticeboard at the Purple Sofa, by reference to the accused’s age, haircut and facial expression.
Also troubling was CE’s evidence that: ‘I did look up some material [on websites] in 2015 after I made my report [to police], prior to that, no.’[115] That was potentially at a time before the photographic identification procedure was conducted by police, meaning that other photographs of the accused and material could have been accessed by CE.
[115] T68.29 – 30.

CE’s description of the offender does not accord with the accused’s description in a material way
CE said in evidence that the offender had tattoos on his left shoulder and chest.[116] In cross examination, she agreed that she told the police on 15 September 2015 that the offender had a tattoo on his right shoulder, a tattoo on his left upper arm, and a tattoo on one part of his chest and that it might have been over his heart. [117] She said that what she told the police was the truth. [118]
[116] T36.27 – 29.
[117] T60.22 – 27.
[118] T60.35 – 37.
The accused was photographed upon his arrest on 10 October 2016. The photographs[119] show that the accused does not have a tattoo on his chest, nor on his left upper arm, and he has a tattoo on his right upper arm (not on his shoulder). The accused also has a distinctive large tattoo on his lower left leg.
[119] Tendered as P11.
CE gave evidence that clients with tattoos were commonplace at the Purple Sofa.[120] She said she took note of the offender’s face (presumably as opposed to his body) because she looked at his face after he raped her (and after he had dressed) in case she wanted to report it.[121] The prosecution relied on that evidence to explain how she could be mistaken about the offender having a tattoo on his chest if the offender was indeed the accused. The difficulty with this submission is that prior to giving evidence, the investigating officer, Detective Weston, told CE that the accused did not have a tattoo on his chest[122] so CE’s evidence and explanation on this topic must be seen in light of her being advised by police of this difficulty with the prosecution case.
[120] T54.34 – 38.
[121] T55.5 – 10.
[122] T243 - T244.
Further, in respect of CE’s description of the offender having a tattoo on his chest, CE has described a feature which the accused does not have at all (as opposed to not recalling a tattoo had by an offender or incorrectly placing a tattoo). This is, to my mind, a significant matter when assessing CE’s reliability on the issue of identity, and in considering whether the prosecution has proved that the accused was the offender. This is particularly so in circumstances where CE was massaging the offender’s body, whilst he was lying on his back with his chest exposed, and CE has taken the trouble to specifically tell the police of the offender having a tattoo on his chest.
Physical description of the offender
CE described the offender as a tall man of about 6’2” or 6’3”, strongly built, Caucasian, aged in his mid to late 30s with blue or green eyes, a square jaw, short hair, a serious and cold expression and probably circumcised.[123] The accused was 41 years old at the time of the alleged offending[124] and circumcised.[125] There was no evidence led as to the accused’s height, eye colour or hair cut at the time of the alleged offending, and none of those matters can be inferred from the photographs.
[123] T36.4 – 37.
[124] Agreed facts, P9, para 2.
[125] Agreed facts, P9, para 8.
There were aspects of CE’s description of the offender which were broadly consistent with the accused’s appearance as at 2013, but again I am of the view that the absence of the accused having a chest tattoo significantly undermines the reliability of CE’s identification of the accused as the offender and ultimately the prosecution case.
CE’s evidence as to the likely timing of the alleged rape was at a time when the accused was working
CE said in evidence in chief that the alleged rape occurred on a week day in February 2013 when the weather was warm. She believed it occurred on a week day because two of her co-workers who were present on the day, Alicia known as ‘Georgie’ and Libby known as ‘Bridgette’, only worked weekdays.[126] CE said it was probably a Wednesday because her favourite receptionist, Rosie, was working, and she only worked on Wednesday and Saturday.[127] CE said she knew the alleged rape occurred before lunchtime, and at around 11am to 11.30am.[128] In cross-examination, CE clarified that she thought the alleged rape occurred on a Wednesday because Rosie was working that day, and Rosie generally worked on Wednesday and Saturday, and it occurred on a week day.[129]
[126] T34.8 – 12.
[127] T33.14 – 18.
[128] T34.23 – 27.
[129] T81.29 - T82.15.
By contrast, Ms Jane Reid, the owner of the Purple Sofa, gave evidence that she remembered Rosie worked as a receptionist 3 - 4 days per week.[130]
[130] T143.38 - T144.13.
There were no independent work records as to the hours Rosie worked in 2013. The initial investigating officer,[131] Sergeant Darren Heard, gave evidence that at the time of his involvement with the investigation, he did not obtain a statement from the receptionist Rosie.[132] Detective Weston, who later took over the investigation gave evidence that she spoke with Rosie [R] on 24 October 2018, and was told by Rosie that she took bookings in a diary but the diary was disposed of not long after having taken the bookings.[133] There was no police statement taken from Rosie as to her usual working hours during 2013, nor was Rosie called by the prosecution as a witness.
[131] From October 2015 until July 2016.
[132] T126.1 – 23.
[133] T259.15 - 26.
Mr Callahan, the general manager at the Casket Company, was called as part of the prosecution case. He said the accused started working at the Casket Company in late December 2012 until October 2013. He said the accused worked from 7.30am-4.00pm on Monday to Thursday and 7.30am to 1.30pm on Friday, with some possible overtime. He said the accused very rarely did deliveries.[134] Mr Callahan gave evidence that the hours worked by the accused were recorded using a clock card. Mr Callahan said that Mr Smith travelled to work by public transport or bicycle,[135] and had a lunch break from 12.30 to 1.00pm every day, except Friday.[136]
[134] T119 - T120.
[135] T121.15 - 22.
[136] T123.3 – 16.
A summary of the accused’s time card entries was tendered in evidence by agreement.[137] Those entries reveal that in February 2013 the accused worked from 7.30am until at least 4pm on each Wednesday of that month.
[137] Tendered as P7.
There was also evidence led of four telephone calls made from a mobile telephone number subscribed to the accused to the Purple Sofa in March 2013.[138] Those calls were made on 7 March 2013 at 12.41pm for 57 seconds; 18 March 2013 at 4.10pm for 11 seconds and 4.11pm for 35 seconds; and on 25 March 2013 at 5.11pm for 41 seconds. The prosecution highlighted, in particular, the two calls made on 18 March 2013 read in conjunction with the work entry on Tuesday 19 March 2013 which recorded the accused having finished work earlier than normal at 9.44am. The prosecution submitted the evidence allowed for the accused to have made an appointment with the Purple Sofa on Monday 18 March and then having committed the alleged rape on Tuesday 19 March after leaving work. Such a submission, however, does not fit with CE’s evidence that the booking and appointment with the offender occurred on the same day, nor with her evidence that she believed the alleged rape occurred on a Wednesday in February.
[138] Agreed facts P9, para 18.
CE said she was not certain that the alleged rape occurred on a Wednesday. That day was linked to when Rosie worked and there was evidence from Ms Reid that Rosie in fact worked on other weekdays.[139] Even if I was to accept that CE was simply mistaken that the alleged rape occurred on a Wednesday, CE’s best recollection was that it occurred in February, on a weekday, and in the morning. That is, at a time which does not accord with the accused’s telephone calls to the Purple Sofa (which were all made in March 2013), and which, according to the timecard entries, leaves little or no opportunity for the accused to have committed the alleged rape.[140]
[139] T81.29 - 38.
[140] According to the summary of the timecard entries P7, there is only one day in February when the accused did not work: Thursday 14 February 2013.
The accused’s time card entries and the timing of the accused’s telephone calls to the Purple Sofa (which he admitted making) are largely inconsistent with CE’s evidence as to the timing of the alleged rape, and further undermines the prosecution case that the accused was the offender.
Accused’s evidence
I have also had regard to the accused’s evidence during which he denied having committed the alleged rape of CE.
In evidence, the accused said that after his release from prison on parole in October 2012, he engaged sex workers. He said in late 2012 he attended the establishment ‘Eye Candy’ on Crittenden Road, and on other occasions he arranged for escorts to attend at his house.[141]
[141] T270.16 - 29.
The accused said he started going to the Purple Sofa in March 2013. He said he went to the Purple Sofa on South Road twice. He said on each occasion he checked their website on his mobile telephone, made a telephone call and a booking, and then rode his bicycle from work to the Purple Sofa.[142]
[142] T270.35 – T271.18.
He said on the first occasion he saw a girl named Tia, who was tall, had tattoos, body piercings, and long blonde/brown hair. He said he paid an initial $110 for the massage and an extra $50 for oral sex. He said he told her that he worked at a coffin company and she appeared interested.[143] On the next occasion he called the Purple Sofa, Tia was not available. He said he made a booking with a different girl, who he thought was named Amy. He said the woman he saw was athletic, had a pixie cut, and a tattoo in the middle of her back. He said he paid $110 for the massage and perhaps for some ‘extras’.[144]
[143] T271 - T272.
[144] T272.
The accused said it would take him 15-20 minutes to ride his bicycle from his work to the Purple Sofa.[145]
[145] T273.23 - 27.
By reference to the telephone calls, the accused said he first called the Purple Sofa on 7 March 2013, and attended later that afternoon. He said he then made two further calls on 18 March 2013. The first call dropped out and he then made a second call. He said he did not make a booking on 18 March 2013 because Tia was not available. He said he called on 25 March 2013 and attended the Purple Sofa on that same day.[146] He said he only ever attended the Purple Sofa on the same day that he had called to make a booking.[147]
[146] T273.4 - 22.
[147] T289.29 - 37.
The accused said he has never met CE, nor engaged her services. He said he first saw her in person during the trial.[148]
[148] T274.9 - 21.
It is an agreed fact that on 12 July 2013 the accused attended a supervision meeting with his community corrections officer, Ms Wilson, during which she informed him of a new parole condition that he was to have no contact with sex workers. The accused told Ms Wilson that he understood the condition and denied he had any deliberate contact with sex workers as he believed this condition had already been incorporated into his parole conditions.[149] It was a further agreed fact that Ms Wilson explained to the accused that paying for any erotic or adult entertainment or payment for the exchange of bodily fluids would breach this parole condition.[150]
[149] Agreed facts P9, para 11.
[150] Further agreed facts P14, para 1.
In evidence, the accused agreed he met Ms Wilson in 2013, and she spoke to him about his contact with sex workers. The accused agreed that she asked him whether he had been in contact with sex workers, and he lied and told her that he had not seen any sex workers.[151] He said it was possible he lied because of embarrassment.[152]
[151] T276.11 – 17.
[152] T276.18 - 20.
In cross-examination, the accused said that from late 2012 to early 2013 he became aware of a small yellow flyer, with his photograph and his previous address, saying that said he was ‘a serial rapist’. The accused said the photograph on the flyer was the same photograph as P2. He said he was concerned about the flyer because whilst he had been previously convicted of the offence of rape, he was not a ‘serial rapist’. He said he thought someone in the sex industry had distributed it to brothels and sex workers. He agreed that after seeing the flyer he was concerned about being able to make bookings with sex workers and that caused him to stop making any bookings.[153]
[153] T278 - T280.
The accused said he made a booking with the Purple Sofa in March 2013 because he wanted a massage, instead of full service, yet he agreed that on the first occasion he attended at the Purple Sofa he paid an extra $50 to touch the person giving him a massage, and on the second occasion he paid for oral sex. The accused denied he made a booking with the Purple Sofa because it was a massage parlour not a brothel, and thus there was less chance of him being recognised from the flyer which had been distributed.[154]
[154] T280.23 - 37.
The accused said that between his release on parole in October 2012 and his return to custody on 15 November 2013, he saw up to six sex workers, including Tia and Amy (of the Purple Sofa); his partner AR and two girls named Abbey and Skye.[155]
[155] T282 - T284.
The accused agreed he had used the alias ‘Josiah’ when making bookings with sex workers. He said he was in prison with someone with a similar name and he thought it ‘sounded cool’.[156] He said he could have used the name Josiah to book at the Purple Sofa.[157]
[156] T284.32 - T285.2.
[157] T286.1 - 4.
There were aspects of the accused’s evidence which supported the prosecution case, namely that he agreed he had used the alias ‘Josiah’ when booking a sex worker or massage worker; that he had attended the Purple Sofa on South Road on two occasions at a time proximate to the alleged rape; and that he had, on an occasion, travelled from his workplace at the Casket Company to the Purple Sofa for a massage and other oral sexual services. The accused also agreed in his evidence that since becoming aware of a flyer labelling him a serial rapist he was concerned to book a sex worker which explains why he may have made a booking at a massage parlour so as to frustrate such an impediment.
Further, the accused admitted lying to his probation officer on 12 July 2013 by denying having had any deliberate contact with sex workers when, on his own account, he had engaged several sex workers between October 2012 and July 2013. He said he lied because he was embarrassed. The accused’s admitted lies to his parole officer did, to some extent, adversely affect the credibility of his evidence.
Notwithstanding the abovementioned aspects of the accused’s evidence, which support the prosecution case, and the fact he lied to his parole officer by saying he had not had any deliberate contact with prostitutes, I am unable to reject as a reasonable possibility the accused’s denial of the charged offence. He was detailed in his evidence about the women with whom he consulted on the two occasions he says he attended at the Purple Sofa; and there was evidence that two such women worked at the massage parlour at the relevant time.[158] Although the accused lied to his parole officer about not having seen sex workers in 2012 and 2013, such a lie is explicable on the basis he panicked when asked about these matters given he had previously been charged with assaulting a prostitute. The accused’s lie to his parole officer does not cause me to reject, as a reasonable possibility, his denials of the charged offence.
[158] T56 - T57; T59.1 – 11.
On the accused’s evidence, there was also an explanation as to how CE may have known that he worked at the Casket Company, as the accused said he told her co-workers, Tia and Amy of his employment.[159] There was no evidence from either of the two workers to refute this evidence from the accused. I cannot exclude the possibility that CE, despite her general honesty as a witness, has included a detail about the offender which she has heard from another source.
[159] T271 - T272; T290.11 – 23.
Forensic disadvantage
I must also take into account what I consider to be the significant forensic disadvantages to the accused caused by the delay of about six years between the alleged offence and the matter proceeding to trial. The allegations were said to have occurred in early 2013, and were first reported to police on 15 September 2015. The accused was arrested on 10 October 2016. I am satisfied that such a delay has resulted in a significant forensic disadvantage to the accused, in that there are difficulties for the accused in challenging and responding to the allegations after the elapse of time, in the following way:
1.But for the delay, the accused may have been in a better position to call or cross-examine potential witnesses, such as the workers Tia and Amy, and the receptionist Rosie, each of whom could not be located, and may have been able to support aspects of the accused’s account.
2.The investigating police officers may have been in a better position to seize the log book in which the names of bookings were recorded (and which police were told had been destroyed) and any records as to the working hours of Rosie, the receptionist.
3.The towel into which the offender ejaculated may have been able to have been recovered by the police and tested for DNA.
I have taken those forensic disadvantages into account when assessing whether the prosecution has proved beyond reasonable doubt its case against the accused.
Conclusion
I am satisfied beyond reasonable doubt that a person had sexual intercourse with CE without her consent, knowing that she was not consenting.
I am not satisfied, for the reasons set out above, that the prosecution has proved beyond reasonable doubt the accused was the offender.
Verdict
I find the accused not guilty of the offence of rape.