R v Smith (a pseudonym)
[2020] ACTSC 142
•4 June 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Smith (a pseudonym) |
Citation: | [2020] ACTSC 142 |
Hearing Dates: | 28 April – 1 May 2020 |
DecisionDate: | 4 June 2020 |
Before: | Mossop J |
Decision: | The accused is guilty on counts 1, 2 and 3 on the indictment. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial by judge alone – sexual intercourse without consent – act of indecency – accused and complainant were young persons – previous consensual sexual activity – strong complaint evidence – guilty on all counts |
Legislation Cited: | Crimes Act 1900 (ACT), ss 50, 54, 60 Criminal Code 2002 (ACT), s 712A Supreme Court Act 1993 (ACT), ss 68B, 68C |
Cases Cited: | Banditt v The Queen [2005] HCA 80; 224 CLR 262 R v Stevens (No 2) [2017] ACTSC 296 |
Parties: | The Queen (Crown) John Smith (Accused) |
Representation: | Counsel S Saikal-Skea (Crown) S Whybrow (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Accused) | |
File Number: | SCC 170 of 2019 |
MOSSOP J:
Introduction
This is a criminal case involving allegations against a young man who was 17 years old at the time of the incident giving rise to the charges.
The accused is charged with three counts. Count 1 alleges an act of indecency contrary to s 60(1) of the Crimes Act 1900 (ACT). Counts 2 and 3 are counts alleging sexual intercourse without consent contrary to s 54(1) of the Crimes Act.
The complainant was also 17 years old at the time of the incident giving rise to the charges.
In order to protect the identity of the complainant (Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act) s 74) and the accused (Criminal Code 2002 (ACT) s 712A), persons and places referred to in these reasons have been anonymised by the substitution of different names in these reasons and where names appear in the evidence. The key to the anonymisation is contained in a schedule to these reasons, which will be provided to the parties, kept on the court file and not published on the internet.
Overview of the Crown case
The Crown alleges that on 27 April 2018 the complainant, Mary Jones, picked up the accused, John Smith, from an 18th birthday party that he was attending in Barton. She was to drive him home. The accused asked if they could stop at an oval on the way. The complainant parked the car in a car park next to the oval. The accused got out of the car and chased kangaroos which had been grazing on the oval. Both young persons returned to the car and engaged in consensual sexual activity in the back seat of the complainant’s car.
At one point, the accused asked if he could give the complainant oral sex. She said no. The young person opened the complainant’s legs and moved down as if he was going to do it. The complainant pushed him away and said no. He went down to do it again and licked the complainant’s thigh. This is the conduct alleged to make up count 1, the act of indecency.
Shortly thereafter, the accused is alleged to have tried to put his penis in the complainant’s vagina and went partly into it. The complainant pulled herself up and said “no”. That is alleged to constitute count 2, sexual intercourse without consent. The accused is then alleged to have inserted his penis into the complainant’s vagina repeatedly. The complainant said to him “No” and “Stop”. The accused is alleged to have replied to the effect “What? I can’t hear you”. The complainant is alleged to have pushed the accused away and he is alleged to have held her down. That conduct is said to constitute count 3, the second count of sexual intercourse without consent. After that, the complainant ceased resisting and cried. The accused then asked her whether she was being serious. He is alleged to have said that he thought that she was saying “no” but meaning “yes”. They then stayed at the oval car park for a period of time before the complainant drove the accused home.
The complainant is alleged to have made a complaint to her friend, Margaret Campbell, shortly after she had dropped the accused home. She is also alleged to have complained to her mother and then her father and another friend the next day.
Election
As a result of amendments to s 68B of the Supreme Court Act 1993 (ACT), an election could be made for a trial by judge alone in these proceedings, notwithstanding that they related to “excluded offences”: s 68B(3A)(b). Such an election was filed on 17 April 2020.
Directions
Under s 68C of the Supreme Court Act I am obliged to set out:
(a)the principles of law applied: s 68C(2); and
(b)the findings of fact which I make: s 68C(2).
I am also obliged to take into account any warning or direction to be given, or a comment to be made, that would have been made to a jury in the proceedings had the matter been tried before a jury: s 68C(3).
General principles
The Crown bears the onus or burden to prove the guilt of the accused. The Crown has asserted that the accused has committed a criminal offence, therefore the Crown must prove that the accused committed that offence. The accused does not have to prove that he did not commit that offence.
The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. The accused cannot be found to be guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt.
The accused is presumed by law to be innocent of the offence with which he is charged, unless, and until, the evidence which I accept satisfies me beyond reasonable doubt of his guilt. If the evidence which I accept satisfies me beyond reasonable doubt of his guilt, then he loses the presumption of innocence and the appropriate verdict is guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of his guilt, then he remains presumed to be innocent and the appropriate verdict is not guilty.
As I am the judge of the facts, as well as the judge of the law, I must bring an open and unbiased mind to the evidentiary material. I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the Crown and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will.
I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the events about which the witness has given evidence.
I must determine the relevant facts according to the evidentiary material, considered logically and rationally, without acting capriciously or irrationally.
I may use my common sense, my individual experience and wisdom, in assessing the evidence given by the witnesses.
I am not required by any rule of law, logic or common sense to accept a witness wholly or to reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance, I can reject everything that a witness has said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said I consider worthy of acceptance and reject the rest of what that witness said as I consider it unworthy of acceptance.
In a criminal trial the Crown must prove the essential elements of the charge beyond reasonable doubt. The Crown does not have to prove everything about which evidence has been given beyond reasonable doubt.
The accused gave evidence. He was not obliged to. His evidence is to be assessed like that of any other witness. Even if I reject his evidence, the burden remains upon the Crown to prove its case beyond reasonable doubt.
Directions particular to this case
I have also given myself the following directions.
Liberato direction: There was a significant conflict in the evidence between that given by the complainant and the accused. Even if I prefer the evidence for the prosecution, I should not convict unless I am satisfied beyond a reasonable doubt of the truth of that evidence. Even if I do not positively believe the evidence for the defence, I cannot find an issue against the accused contrary to that evidence if the evidence gives rise to a reasonable doubt as to that issue.
Murray direction: As the prosecution case is largely based on the evidence given by the complainant, I need to examine that evidence carefully. I am entitled to convict the accused on the basis of that evidence if I accept it. However, in order for the prosecution to establish the charges beyond a reasonable doubt, I would need to accept beyond a reasonable doubt the accuracy of that evidence. It is therefore important that I consider it carefully.
Markulevski direction: Each of the charges against the accused must be considered separately. If I am not satisfied beyond reasonable doubt in relation to one of the charges, I must consider what effect, if any, the doubts that I have about the complainant’s evidence on that charge have in relation to the other charges.
EMP Act: I have also given myself the directions that are required by the EMP Act:
(a)Directions about the manner of giving evidence: In this trial evidence was given by a pre-recorded interview as well as a recorded pre-trial hearing in court. That is the usual practice in the ACT. I must not draw any adverse inference against the accused and the evidence should not be given greater or lesser weight because the evidence was given in that way: EMP Act ss 57, 64.
(b)Delay in complaint: The absence or delay in making a complaint does not necessarily indicate that the allegation that an offence was committed is false. There may be good reasons why a victim of a sexual offence may not make, or hesitate to make, a complaint about the offence: EMP Act s 80B.
(c)Consent: A person is not to be regarded as having consented to a sexual act just because on that occasion, or an earlier occasion, the person had consented to engaging in a sexual act (whether or not of the same kind) with the accused person: EMP Act s 80C(d).
I must also give myself those directions which arise out of particular aspects of the evidence in this case:
(a)Good character: I must take the accused’s good character into account in his favour in two ways. Firstly, I must take the accused’s good character and reputation into account in his favour on the question of whether or not the Crown has proved his guilt beyond reasonable doubt. Secondly, I must take the accused’s good character and reputation into account in his favour on the question of whether or not to accept what the accused has said about the Crown’s allegation against him. The accused’s good character and reputation does not provide him with some kind of defence. People of good character and reputation do commit criminal offences. Every offender has committed a first offence and, before doing so, was a person of good character and reputation. The fact that the accused is a person of good character and reputation cannot prevail over, or provide a defence to, evidence of guilt, if the Crown has proved beyond reasonable doubt that the accused is guilty of the offence.
(b)Complaint: In relation to evidence of complaints made by the complainant after the event, if I accept that the complaints were made and that evidence is consistent with the evidence of the complainant, then I can use that evidence in two ways:
(i)First, I can use evidence of what was said in the complaint as some evidence that the incident did occur as the complainant said. The law says that because of the circumstances in which the complaint was made, I am entitled to use what was said in that complaint as evidence of the truth of what the complainant alleged against a person. I must consider whether I draw that conclusion in this particular case and so treat the complaint as evidence of the alleged incident by the complainant. If I do use it as some evidence of the incident that is the subject of the relevant count, then I must determine what weight to give it.
(ii)Second, whether I do use the evidence of complaint in that way or not, the fact that the complainant raised the allegation against the accused at the time and in the manner that she did may lead me to accept the evidence she gave. In other words, it makes her evidence more believable than if she had not raised the allegation as she did. If I use the evidence in that way, I must determine what weight the evidence should be given.
I must, however, bear in mind that the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasions.
Evidence of the complainant
The evidence-in-chief of the complainant was given in the form of an evidence-in‑chief interview conducted with police on 30 May 2018. She gave pre-trial evidence over three days on 28, 29 and 30 January 2020. That involved her watching the whole of her evidence-in-chief interview, giving some brief additional evidence-in-chief and a lengthy cross-examination.
The complainant gave evidence that on 27 April 2018 she picked up the accused from a party at the Canberra Club. She lived on the north side of Canberra and he lived on the south side. She had asked her brother, Chris Jones, to accompany her on this driving expedition, but he declined. She was unsure whether the Canberra Club was in Barton or Braddon, but knew it was near Parliament House.
When she picked up the accused, he was drunk. She was driving him home to his house on the south side of Canberra. During the trip he was using her phone to send pictures and videos using Snapchat. He asked if they could stop at an oval in the same suburb as his house because he was feeling sick. She stopped at the oval and he got out of the car and was chasing kangaroos that were on the oval. She stayed in the car for a few minutes and then got out, because it was funny watching him with the kangaroos. She then got back in the car and sat in the passenger seat. He went into the back seat and was feeling sick. He said he was feeling hot and he took his shirt off. They stayed there talking for a while.
He asked her to come into the back seat and she went into the back seat. They started kissing. He then started “fingering her”. He then asked if they could have sex. She said no. He asked why and she said “You’re drunk. Like, we’re in a car park”. He stopped fingering her and they started kissing. Then they stopped and talked for a little bit. They were Snapchatting with friends. She said that he was Snapchatting with his friend Edmond Purcell who had been picked up by a friend of the complainant’s, Jane Williams. He said “Edmond and Jane are fucking, so we can”. She laughed and said “No, like, we’re not.” She said that he was Snapchatting friends of his and she was taking Snapchats of him in the car. It was a bit awkward for a while. She perceived that he expected her to change her mind about having sex and was no longer interested in “kissing and stuff”. Then they started kissing again for a while and he pulled her hand down into his pants and she started giving him a “hand job”. Then he pulled his pants off completely. She was wearing grey tracksuit pants and a pink nightgown. The tracksuit pants were off, but she still had her underwear on. After she stopped giving him a hand job they were just kissing and he was on top of her. He quickly pulled her underwear off and said “Can I lick you out?”. She said “No” and suggested that they should go home. She was lying on the back seat and he was over her. He opened her legs and went down to “lick her out”. She pushed his head away and said “No, stop. Like, we’re not doing it”. He said “I can’t hear anything” and went to do it again and licked her thigh. She sat up and pushed his whole body off of hers and said “Stop, like, let’s just go home, because I don’t want to be driving home late anyway”. He then said he was sorry and would not do it. She described that when he said “I can’t hear anything” he was being a “smart arse about it” and said it in “a joking way”.
Then they started kissing again. He took his underwear off. As they were kissing “he went to go down again”. She was still on her back and lifted her arms and shoulders and told him to stop. She started to get mad at him. He kept going and she grabbed his hair and told him to stop. He then pushed her shoulders down back onto the back seat and she felt him trying to put his penis in her. She then pushed him off and put her legs back together and said “Stop” and started getting angry at him. He pushed her legs back open and “put it all the way in”. She then said that they ended up wrestling in the back of the car. Every time she sat her body up, he would push her back down and she would then try to put her legs back together. He would open them up and she would sit back up. She was telling him “No, stop. Stop.” She said that he kept saying “What? I can’t hear anything. Nothing is happening. I can’t hear anything”. She said that went on for five minutes. Subsequently in her evidence she said it went on for “a couple of minutes” and “ten minutes”, “ages” and “10 minutes” again. Later she said “It felt like a long time, however it could have been shorter”. She said she ended up scratching him a bit and that she was getting “really nervous and scared”. She said that he would push her down and hold her shoulders tighter and tell her to stop. She described that when he first entered her it was painful. It was less painful subsequently but never “got to the point where it ever felt nice”. She said there came a point where “I just, um, like, let him go and, like, I turned my head and, like, just let him go”. He was kissing her neck for about 15 seconds and then he “just started, like, going really, really quick” and she stopped fighting him back. By that stage she was crying. He then said “What - were you being serious?” She told him that she was and that she had said no. He kept asking her whether she was being serious and he “was freaking out”. Then he started punching himself and she told him to stop and that she would take him home.
He asked her to get out of the car. He got out of the car and put his pants and belt on. She put her tracksuit pants back on and got out. He came around and tried to hug her. She was crying. Her vagina and lower abdomen hurt when she stood up. He tried to wipe away her tears and she told him not to touch her and that she would take him home. He said that he thought she was trying to tease him, saying “no” but meaning “yes”. She said that he knew she was being serious. He apologised and asked how he could fix it.
After about five minutes they got back in the car. She sat in the driver’s seat and he got in the front passenger seat. When she had got back into the car earlier in the evening, she had left her keys on the floor of the passenger side where she sat. She asked him for the keys. He grabbed the keys and said that he wanted to talk about it. They were then sitting in the car for about 40 minutes, during which he kept saying sorry and hitting himself. He asked whether she thought he had raped her. She kept saying “I don’t know. I don’t know”. He then expressed concern as to who she was going to tell. He said that he did not think it was rape, that he did not know and that he thought she was kidding. He made her promise that she would not tell her friend Margaret. He then asked her whether she would tell her parents or whether she would tell Greg Brown, a mutual friend. She said she was not going to tell anyone, and he ended up giving her the keys. She dropped him home at around 1:30am or 1:45am. He asked her to message him when she got home.
After she had dropped him off she pulled off down the street. She was crying hysterically and hyperventilating. She tried calling her cousin who lived in Melbourne who did not answer. She tried another friend in Melbourne who did not answer. She sat in the car crying and then started driving again. She got herself past the local shops and down onto the Tuggeranong Parkway. She pulled over further down the road and tried calling her friend Margaret. Margaret answered. When she answered she “started bawling my eyes out”. It took ages to explain what happened because she was crying. Margaret got her mum, who the complainant was also close to, and they both helped calm her down. She said she was on the phone for about 20 minutes. They suggested that she drive to their house and they would take her to hospital and the police tonight. The complainant declined their offer. When she started driving again, she started to regret calling Margaret because she did not know what she wanted to do and felt bad for telling on the accused when she said she would not. She did not go to their house. Instead she went home to sleep. She got home around 3:30am. She said that the accused had sent her Snapchats which she opened when she got home, including an apology saying sorry. These were in the forms of black screens with text. None of them were saved. She reassured him that she would not tell anyone. The next morning she messaged Margaret, telling her not to worry about coming over.
She said that the next morning her mother, Alison Jones, found her crying and she explained that she had watched a sad movie. Her mother suggested they go out for breakfast. When they were out at breakfast Margaret’s mum rang and asked whether she had told her mother yet. At that point the complainant started crying and so she hung up and told her mum.
The complainant’s mother rang her father, Sean Jones, and said “I need you to come home from work right now”. She gave her mother a brief rundown on what happened. When they arrived home her dad was there. Her mother asked her to explain to her father while she called Margaret’s mum. She gave a limited explanation of what happened to her father. He said he was going to make some calls. He contacted a friend of hers, Greg Brown, to get the accused’s name, address and number. The complainant sat in her room telling her mum more of the story. She heard her father “going ballistic on the phone” talking to Greg. Her dad said that he was going to the accused’s house that day and she told him not to. She fell asleep and her friend Margaret came over. They watched movies and her friend Greg came over for dinner. They were trying to be normal. Margaret stayed the night.
On the Sunday she and her mother went to the Calvary Hospital. The complainant said that she did not want to make a report to police. She received medical treatment. She described being confused about the distinction between a report to police and “the forensic thing”, not realising that they were two different things.
She subsequently blocked the accused on social media.
She described a conversation between her father and the accused’s mother, Elizabeth Smith, which occurred on the Saturday. Her father had rung the accused’s phone. The accused’s mother answered. She said “I’m fully aware of what happened last night between them and … I’d prefer you talk to me than go through my son”. She described that the pair were kissing and “Mary freaked out halfway through and … John stopped”. Her father then got “really mad” and the complainant took the phone from him. She described her side of the story and the accused’s mother said that was similar to what the accused had described, “only he said that you never said no”. The complainant told her that she did say no and that she had Snapchat messages from him. She then heard the mother ask the accused and she said “Oh, yeah, sorry. Like, he’s just told me that he did know you said no. I didn’t know that before”. She said that the mother made reference to the accused’s football contract and that they needed to know whether she was going to the police. The complainant said that she was not going to the police. She said that her father “went ballistic again” and took the phone from her.
The complainant was told that subsequently her father spoke to the accused’s father, who was “really professional about it” and assured him that his son “wouldn’t have purposely ever done anything”. The complainant’s father then made threats against the accused.
She went to the police on Tuesday, 8 May 2018, a week and a bit after the incident. She went to the Gungahlin Police Station. The police subsequently came over to her house and then organised an evidence-in-chief interview. She said her mum put the clothes that she had been wearing on the night of 27 April 2018 in a bag and gave them to police. She thought that her underpants had been put in the bin and were not found. Her evidence‑in‑chief interview was conducted on 30 May 2018.
The cross-examination was lengthy, covering 111 pages of transcript.
In cross-examination the complainant said that she was “fairly sure” 24 February 2018 was the first day that she met the accused. There was then a period of frequent Snapchatting between them.
She agreed they were not “dating”. She agreed that on a couple of occasions they met up at Mount Ainslie and that there was sexual activity on those occasions. They would each drive up to Mount Ainslie and get into one of their cars and “chat and hang out”. The complainant did not remember the details of the events at Mount Ainslie, but she agreed that there were occasions when the accused put his hand under her pants and put his fingers into her vagina. She said that she always consented to everything that occurred at Mount Ainslie. She also agreed that on an occasion she put her hands down his pants and started to manipulate his penis. She did not remember performing oral sex on the accused. She said “I one hundred percent remember using my hand on John. I don’t remember giving him oral sex up at Mount Ainslie”. She positively denied that there was an occasion when she had given him oral sex and he had ejaculated in her mouth.
She denied sucking his penis on the evening of 27 April 2018. She said the reference to using her mouth in the Snapchat message of which she had taken a photograph (exhibit P1) would have been a reference to using her mouth to spit on his penis for lubrication. She remembered doing that on more than two occasions whilst they were seeing each other. She did not recall putting his penis in her mouth.
She agreed that in the week before she went to police, she had done a Google search on her phone for a sexual assault forensic examiner report template. She was wanting to prepare a false document to tell her friends that there was support for her allegations. She agreed that, to that extent, she was prepared to fabricate evidence for her friends to support them in believing her. She told her friends that there was forensic evidence that supported her allegations and did so knowing that was a lie.
She was cross-examined about some messages that she had exchanged with a boy called Charles Bannister. In those text messages she said that she had the evidence that she needed. She went along with the story that she had gotten a swab done. She said that she did so because she wanted “the conversation dropped about me lying about it”.
Further, while she provided other instant messaging exchanges with Mr Bannister to police, she deliberately did not send that portion of the message conversation that included the reference to the forensic material. She agreed with the proposition that she did not want the police to know that she was going around lying about what evidence there was, because she was worried that they might have some doubts about whether she was telling the truth if they found out that she was prepared to make up evidence.
She also agreed that on an occasion when she was drunk and upset at a party, she did say that she wished something bad would happen to the accused. She said “I wish I wasn’t the only person who was hurt in that situation”.
She also agreed that she had lied in an instant message communication with Mr Bannister about having evidence of “trauma to my private area and his cum was in me”.
She denied the suggestion that she had ever alleged that the accused had punched her. However, she agreed that she is still very angry with the accused.
She was cross-examined about an incident that occurred at Batemans Bay prior to her being hit on the back of head and hospitalised.
She was cross-examined about whether or not, when going to pick up the accused, she thought that she was picking up just him, or possibly him and “the boys”.
It was suggested to her that he was not drunk when she picked him up, which she denied, saying “he was acting very drunk”.
She denied any knowledge of an email sent to a rugby union team with which the accused had some association. She was asked by police about the email and she did not know about it. She had a heated argument with her parents about it. They denied any involvement with it until the police could prove that it came from their home IP address. Her mother then admitted involvement with it. She denied any knowledge of what was in the email or having any conversation or discussion with her parents prior to it being sent.
Alison Jones
Alison Jones is the complainant’s mother. Her evidence was that she was at home with her daughter on 27 April 2018 before she went out. She said the complainant told her she was going out to collect the accused and a couple of friends. She left between 10:30pm and 11pm. The next day at 9:30am there was a note on her daughter’s door not to wake her up, as she was meant to be working with her dad that morning. She subsequently heard her on the phone crying. Her mother went in and she was on the phone to her friend Judith. The complainant asked if they could go to breakfast. Her mother thought that she wanted to tell her something because she loved working with her dad (and hence would have gone out with him) and also because of her “mother’s instinct”.
They went out to breakfast at a café. At the café, the complainant’s eyes filled with tears and told her that the accused had raped her. She said that she had picked him up, that they had gone to an oval, that they were kissing, that he had pulled her pants off and that she had said “No, no, no” and then laid there and cried. She said that she had tried to push him off, but he was too powerful. She had subsequently dropped him home.
The mother of the complainant’s friend Margaret called Ms Jones and told her to take the complainant to the hospital.
She called her husband and told him that he needed to come home. When at home, Mr Jones was there and she said to the complainant “You need to tell him”. She did not hear what the complainant said to Mr Jones.
She did not hear the phone call between her husband and the accused’s mum clearly.
On Sunday, she went to the hospital with the complainant. She said they got confused because she and the complainant thought that the reference to a forensic test would involve police coming to take the samples. The complainant did not want the police involved at that stage. For that reason, she refused a forensic examination. She had antibiotics at the hospital in case of a sexually transmitted infection.
In cross-examination, she agreed that she had had many conversations with her daughter about the incident, mainly arising from the fact that her daughter was “slashing herself” and had stopped counselling.
Ms Jones was cross-examined on differences between the terms of her statement made to police in October 2018 and the oral evidence that she gave. In particular, the reference in her oral evidence to the possibility of picking up the accused as well as “a couple of friends”. She denied that she was aware that that was an issue in the case. She agreed that she had 100% faith in the truth of what her daughter told her. She agreed that her witness statement did not include the word “rape”, but it did include the word “sexual assault”. She also agreed that her witness statement did not include reference to the complainant attempting to push the accused off. She said in cross-examination that she had been told that by the complainant on Saturday, 28 April 2018, and not subsequently.
In relation to the conversation between the complainant and her grandfather (a former police officer), she said she did not know what they talked about. She did say that the complainant did not want to complain to the police at that stage.
She was asked about threats made by her husband to the accused and his father. She had some knowledge of them. The effect of her evidence was that they reflected her own hostility towards the accused.
She admitted preparing an email that was sent under a false name to the accused’s rugby union team and the Canberra Times and then initially lying about the preparation of that email to police. Her evidence was consistent with the complainant’s, insofar as she said the complainant did not participate in the production of the email and only became aware of it after police investigated it.
She corroborated the complainant’s evidence about what happened at Batemans Bay, when the complainant was struck in the back of the head and taken by ambulance to hospital.
Sean Jones
Sean Jones is the complainant’s father. On 28 April 2018 he was called by his wife who said “You need to come home right now”. When he arrived at home his wife said to the complainant “you’re going to have to tell him” and then walked out. The complainant told him that “he forced himself on her that night” but did not go into exact detail. Mr Jones went into a rage. He wanted the telephone number of the accused. He only persuaded the complainant that afternoon to given him the number, on the basis that she would be next to him when he called the number.
He called and had a conversation with the mother of the accused. She said that the accused had told her that something had happened but had not told her what. He said, in intemperate language, what he said that the accused had done. He then said that the complainant grabbed the phone from him and walked off so that he could not hear what transpired. Later on that afternoon he spoke to the father of the accused, who had only just got home. Mr Jones said he was yelling, ranting, raving and screaming at the accused’s father until his phone went dead and the conversation ended.
When Mr Jones was told that the police were coming to the house he got the clothes that the complainant had been wearing out of the garbage bin because he thought they might help in the case.
In cross-examination he agreed with propositions that he told the father of the accused he would take the accused “out bush” if he ever saw anything on social media about the complainant. He agreed that he was implying a threat of physical harm, not of killing the accused, but of leaving him there in the bush.
He denied knowing about the sending of the email by his wife before it was sent. He recalled being asked by the complainant who had sent the email. He could not recall the conversation with Senior Constable Bensley when she asked him about the email.
He agreed that the conversation with the mother of the accused occurred at about 1:30pm. A version of the conversation was put to him. His recollection of the specific words that were said was poor. He accepted that, because of his anger at the time, there were things he just did not remember about the conversation.
He agreed that he had sent a number of messages to the father of the accused. He could not recall the details. He had made the communications with the intention of giving the father of the accused the impression that he was stalking his son. He said that there came a point where he promised that he would never contact the accused or his father again.
He also agreed that there was a telephone call with the father of the accused where he got very angry and aggressive and made a number of threats, including a threat to kill the accused. He denied offering anybody $5000 to assault the accused.
Mr Jones had a rough manner and was somewhat hostile to the questioning by counsel for the accused. This was entirely consistent with what the evidence disclosed about his level of anger and volatility on 28 April 2018.
Chris Jones
Chris Jones, the complainant’s younger brother, gave evidence in the form of an evidence-in-chief interview. He was not required for cross-examination. He gave evidence that the complainant asked him to come for a drive to pick up the accused from a party. She explained her radio was broken, implying that she wanted some company. He declined that offer. He said that this was because he had just finished work and he had school the next day, so he was tired. (As the events occurred on a Friday evening the reference to having school the next day must have been a mistake.)
He said that he had first met the accused at “Skyfire” (a well-known fireworks event in Canberra). He knew that the accused played rugby and the school that he went to, but otherwise did not know him. He did not know his last name. He did not know precisely the relationship between his sister and the accused. He described it as being “between a relationship and friends”.
Senior Constable Cilla Bensley
Senior Constable Cilla Bensley was the informant. She works in the Sexual Assault and Child Abuse Team.
On 8 May 2018 she spoke with the complainant and got a brief outline of the complaint. She seized various items of clothing worn by the complainant on the evening of the incident.
She conducted the evidence-in-chief interview with the complainant on 30 May 2018.
On 14 August 2018 she did an Aceso download of the complainant’s mobile phone. The report of that download identified times of text messages in Greenwich Mean Time, to which 10 hours needed to be added to obtain the correct time in Canberra. It did not download the contents of the Snapchat app.
She obtained medical records in relation to the complainant’s visit to Calvary Hospital on 29 April 2018.
She also obtained a case note prepared by the officers who initially met with the complainant at the Gungahlin Police Station.
On 7 September 2018 she offered the accused, through his father, an opportunity to participate in a recorded interview. That offer was declined.
In cross-examination she was asked about communications with the Jones family after the initial complaint. She gave evidence that on 14 June 2018 the complainant’s mother indicated that the complainant was not sure if she wanted to proceed with the complaint. On 9 August 2018 Senior Constable Bensley wrote to the complainant indicating that if she did not get in contact then the case would not proceed. This was a case in which the nature of the allegation was such that, unless the complainant wished to proceed, the police would not investigate it further.
Her evidence was that she believed that, at the time, there were no records relating to the accused on Promis, the AFP intelligence database.
On 7 September 2018 she collected the records from Calvary Hospital. She also spoke to the accused’s father. He indicated that he had been receiving threatening messages. He said that he wished to tell her something “off the record” and she declined that offer. She invited both he and his wife to make statements.
She also spoke to the complainant’s mother that evening. Ms Jones subsequently informed the officer that the complainant did wish to proceed. Senior Constable Bensley asked the complainant to forward through any communications with anyone in relation to the matter. It was that which led the complainant to forward through the communications with Charles Bannister, which became exhibit D1. The officer was not aware of the other parts of that conversation, which became exhibit D2.
She said she was not aware that the complainant was considering fabricating documents or that she had made false statements about what had occurred.
On 19 December 2018 she received a report from Alison Jones that the complainant had been down the coast, had been bashed by some of the accused’s friends and been in hospital overnight. She requested information such as the police job number. She contacted the father of the accused, who told her that at the time the accused was in Scotland and that he and his family were considering obtaining “AVOs” to protect them from the Jones family. She spoke to a Constable Turner at Batemans Bay police about the allegations.
In relation to the email sent by the complainant’s mother, that was raised with the complainant and her mother and father, and each denied any knowledge of it.
She indicated that she was not able to pursue recovery of data from Snapchat.
On 14 May 2019 she spoke to the complainant to indicate what had happened at the first return date in relation to the proceedings against the accused. She subsequently received a telephone call from the complainant’s mother who confessed that she had written the email to the rugby union team.
Margaret Campbell
Margaret Campbell was a friend of the complainant. She met her in Year 9 at Amaroo School. In the early hours of the morning of Saturday 28 April 2018 the complainant rang her. She called out to her mother and then answered the phone. The complainant was in “complete hysterics”. She could not work out what she was saying. She thought that perhaps the complainant’s brother, Chris, had died. She said the complainant was hyperventilating and that she could not understand what was happening. Her crying was “horrible”, like a person crying at a funeral. The complainant said “I said no” and “He stuck it in me”. She asked whether she was referring to the accused. The complainant said “He just stuck it in. I couldn’t do anything”.
Gradually, during the course of the conversation, she picked up some other details: she had picked the accused up from a party, he was drunk, they had gone to an oval and pulled over in the car park.
Ms Campbell learned that they were touching each other. The complainant said that she was giving him a “hand job” and that led to him trying to “do stuff to her which she felt uncomfortable”. She said she was not looking whatsoever presentable and that he went on and continued and started to finger her to which she said “No”. Then he continued and she said she just laid there helpless. He then went down and she said “No”, and it became extremely forceful and he tried to have sex with her. Then on the phone the complainant just started crying again and said “I said no”.
Ms Campbell said that the complainant said that after this had occurred, she got back in the front seat and turned her head out the window because she could not face him and was crying. He said “We need to talk about what’s happened”. She could not talk, faced the other way and started crying. Then she drove him home.
The complainant said that before she rang Margaret she rang her friend or cousin, either Jeff or Judith.
The complainant said that she could not see the road. Ms Campbell asked whether the complainant wanted to come to her house but the complainant said that she needed to go home.
Because of a medical condition, Ms Campbell felt extremely sick after the call. She called her mother in and told her what had happened and then went to sleep.
Exhibit P5 was an exchange of text messages, which included text messages sent and received between her and the complainant on the morning of 28 April 2018. These text messages appear to have been exchanged after the initial conversation, as the complainant was driving home. In the minute and a half after 2:24:45am, the following text messages were exchanged between the two:
Campbell: ARE YOU OKAY
Campbell: I TRIED
Campbell: CALLING YOU AGAIN
Complainant: my phones stuffing up x
Complainant: i’m okay x
Complainant: i can hardly see
Complainant: i can’t stop shaking
Campbell: Are you almost home? c
Complainant: and crying and it’s so hard to breathe properly
Complainant: idk what to do
Complainant: sort
Complainant: sorta
Complainant: i’ll talk soon
Campbell: Okay drive safe please
At 2:43am the complainant texted Margaret that she had arrived home. There are then some supportive messages sent between the two.
At the complainant’s mother’s request, Ms Campbell went over to the complainant’s house the next day. Alison Jones was in tears and thanked her for being there.
Ms Campbell gave some evidence about the telephone call between Mr Jones and the mother of the accused. She recalled the phone going from Mr Jones to the complainant. When the complainant returned from the call, she said that the accused’s mother had said “You know you’re going to ruin his life. What are you going to do about it and would you like me to get a lawyer?”. She said that after the call ended the complainant came back with a completely different mental attitude or mental state, she was quite taken aback and was quite frightened. Ms Campbell’s evidence was:
She said that “Well I did eventually let him do things to me” in regards to not sex but other stuff like finger her and she said so although she said no to that she told me that she eventually just laid there while he was fingering her and then on from that she always stuck by saying no to having sex even after the conversation with her mum - his mum, she stuck by saying no to having sex but it was just “I could have done more. We have been talking. Maybe he got the wrong impression”, however and - but she did repeat “I did say no to sex” and she said that to his mum.
Exhibit P5 contains text messages between the two on 29 April 2018, in which Ms Campbell asks why the complainant had not blocked the accused on her private Instagram where she had apparently posted something that indicated that she was at the hospital. The complainant indicates that he is blocked from her “story” on Instagram, but she wanted to see if he posted anything. She agreed that she could have blocked him and let Ms Campbell see if he posted anything.
In cross-examination Ms Campbell was asked about the process by which the police prepared her statement. She indicated that she was not provided with a copy of the statement at the time it was made. She said that everything she had said in her evidence in court she had told the police officer, even if that was not fully reflected in the statement. She agreed that the statement in her witness statement of what the complainant told her she said to the accused, “I was trying to say no”, was probably more accurate than her recount in the witness box that the complainant told her “I said no, I said no, I said no”. She agreed with propositions that the complainant told her she was wearing a dressing gown and did not feel that attractive and was not comfortable with him sticking his hand down her pants.
She agreed that she did not get her mum on the phone while the complainant was driving home. She did not remember asking the complainant to come to her house. The accused’s version of the conversation between Mr Jones and the mother of the accused was put to her. She agreed with propositions that the mother of the accused said that the sexual intercourse was just for a few seconds and then they stopped, and that Mr Jones said words to the effect of “Your son did it for 15 minutes while she was screaming no”.
John Smith
The accused gave evidence that at the time he was doing a school-based apprenticeship. This involved one day attending work, one day attending a technical college and three days at school at Buckley College. He was in a school rugby union team. He was all also in another rugby union team. He met the complainant in January or February 2018 at an under 18 Raiders rugby league game. They kept in touch via Snapchat. He said that on 24 February 2018 he had collected the complainant from a party and gone with her to Lanyon McDonald’s. He dropped her back at the party and gave her a kiss goodbye. Subsequently there was another party, to which they were both invited, and he spent the whole night with her. They ended up in a bedroom at the house kissing and he was “fingering” her. On another occasion the complainant, Greg Brown and his girlfriend were at Goodberry’s (a frozen custard shop) and the complainant invited him to join them.
There were occasions when they went to Mount Ainslie to hang out. The first time that involved kissing and fingering the complainant. The second time it involved kissing, her giving him a “hand job” and him fingering her. He said she offered to “suck his dick”” and she did so and he ejaculated in her mouth. They then went to McDonald’s at Majura Park and ate ice cream. There was a third occasion when they went to Mount Ainslie. This was a couple of nights before the accused went to New Zealand. They kissed, he fingered her and she gave him a hand job.
He went on a rugby tour to New Zealand between 12 and 24 April. He spent about 45 minutes to an hour with her on the day before he left for New Zealand.
On 27 April he had spent time with the complainant in the morning prior to a meeting with his rugby manager at 1pm.
His evidence about the 18th birthday party was that he had been dropped there by his mother. There were about 50 people there. He said he had four to six beers and then soft drinks. He said that his mates who were over the age of 18 would buy him beers.
He denied that there were any pre-event drinks. During the course of the evening the complainant offered to drive him home and, as a result, he told his mother that she did not need to collect him. He said that at no stage was there any likelihood that other people would be getting a lift with him.
He said that he was directing the complainant how to drive to his house and that the mood was “Perfectly fine”. They mutually agreed to hang out prior to going home. He directed her to the car park. He said that there were kangaroos on the oval and he did chase them. When he returned to the car he was in the back and she was in the passenger seat. He denied having spoken to Edmond Purcell during the rest of that night. He agreed that he took his shirt off. They started talking, kissing and feeling each other up. He fingered her and she gave him a hand job. He pulled his pants to his knees and she also pulled hers down. He said that she did not have her pink dressing gown on.
She was giving him a hand job and he was fingering her. She said “Do you want me to use my mouth?” he said “Yes if you would like” and she started giving him oral sex. He denied that she had ever spat on his penis.
He said that he asked her whether she wanted to have sex and she said “but you’ve been drinking”. He said he was totally fine with it as long as she was.
He said that he was on top of her kissing. Her vagina was wet. His penis went in without being guided in and they had intercourse for “at most… 10 seconds”. He said they were still kissing “then like I just stopped because I – one, I didn’t have a condom on, and two, it – it just got real awkward. We both sat up and like-just laughed and started talking.” He denied that any stage she said “No”, that she scratched him or that she pushed him. He denied ever asking if he could “lick her out” and denied licking her inner thigh.
He said that they then sat for 40 minutes to an hour having a general chat (as opposed to a chat about what had just occurred). They then decided it was a good time to take him home. He denied holding the keys from her and said that they were at all times in the centre console.
He said she was quiet when she dropped him at his house. She said it was not how she wanted it to happen. He gave her a hug and a kiss and then went home to sleep.
He said that the next day he had a missed call from her. He had no idea that something was wrong. She said that she had not slept well and that that was not how she had wanted sex to happen. She said that he should tell his parents what happened.
He told his mother in a general sense what had happened. He told her that they had had sex and that she had told her parents. He felt awkward discussing it with his mother. The telephone call from the complainant’s father came about an hour later. His mother answered it. He overheard his mother’s side of the conversation with Mr Jones and the complainant. He gave evidence that, a few months later, he had subsequently received a telephone call from the complainant’s father in which he heard him swearing and yelling and had just hung up.
After the call he did not talk to or otherwise contact the complainant.
He denied that he had ever received a Snapchat message as long as the message in exhibit P1.
He gave evidence about other people asking him about what had happened and being told that there was a threat of violence against him.
He gave evidence about being told of the email sent to his school, the rugby union team and the Canberra Times.
He gave evidence that he was overseas at the time when the incident at Batemans Bay occurred.
In cross-examination he said he was positive that he had only four to six drinks. He was shown the videos taken at the oval and denied that he was obviously intoxicated in those videos. He denied his memory was affected by alcohol. He agreed that for three months he had been doing things like kissing, fingering, receiving a hand job and getting the complainant to give him oral sex and that at all times he was patient and respectful. He agreed that he had thought about having sex with her and he said that they had discussed it.
He denied that the video in exhibit D8 of him taking a photograph down his pants involved him taking a photograph of his penis and denied that he was holding his pants open.
He denied that the Snapchat message in exhibit P1 was a message sent to his Snapchat account. He denied that his Snapchat account or Snapchat name had an “@” at the start of it. His evidence was that it was possible to change the display name to anything and hence it was not necessarily a message sent to him. He therefore could not account for that message at all.
He agreed that there was no awkwardness between the two of them when they were kissing, when he was fingering her, when she was giving him a hand job or, on his version of events, when she was giving him oral sex.
He said that he still had an erection after he had sex with her for 10 seconds and still had an erection when he was putting his pants on afterwards. He agreed that in a physiological sense, there was no awkwardness in terms of what his body was doing. He said “Maybe not my body, but in my mind, yes.”
He repeated his evidence about the conversation that had occurred in relation to having sex. He said that occurred whilst he was fingering her and she was giving him a hand job.
He said the conversation that he had with his mother was “My friend picked me up… Some stuff happened - some sexual stuff happened, we ended up having sex, and then apparently her dad is going to call me. She told me to tell you.” He agreed that there was absolutely no reason for her to tell her parents as far as he was concerned.
He denied that there was any discussion of whether his friends needed a lift. He denied that he wanted to stop at the oval because he was sick or wanted to sober up. He agreed that he chased kangaroos. He agreed that at one point he was crawling on the oval and grabbing the complainant’s legs when she was filming him. He agreed that he took his shirt off. He said that there was always some form of sexual activity happening. He denied that the fingering stopped because she felt bad because he was drunk. He denied that he was hoping to be able to have sex with her that night. He said that she put her hand down his pants rather than he taking her hand and putting it on his penis. He then said that they discussed the awkwardness of the position and he pulled down his pants. He agreed that on his version of events the complainant was initiating every bit as much as he was. He said that she offered to use her mouth. He denied asking to “lick her out” or attempting to do so. He denied that she ever said “No” or “Stop”. He denied “pushing the envelope because this was the first time that [the] two of you had had sex”. He agreed that the complainant had never previously meant yes when she said no. He denied ever saying “I can’t hear you. What?” He denied that she ever scratched him, said no or pushed him. He also denied that she ever cried. He denied having sent her a Snapchat message in the morning saying “Do you think it’s rape?” or saying “I thought you were teasing me by saying no”. He denied that the Snapchat message in exhibit P1 was sent to him.
He was asked a series of questions about the accuracy of evidence that he had given that the complainant was wearing a black t-shirt. Counsel for the Crown subsequently withdrew her submission in relation to that evidence, because it turned out to be substantially consistent with something that the complainant had said in her interview with police.
He disagreed that the video in exhibit D8 was of him taking a photograph of his penis or of his crotch. Rather he said it was a photo “From my shoulders down”.
Elizabeth Smith
Elizabeth Smith is the accused’s mother. Prior to 28 April 2018 she had heard of the complainant, but did not know of any relationship between her son and the complainant. She took him to the birthday party in Barton. It was her intention to collect him, but he texted her during the evening and said that he had arranged a lift. The following day the accused had a conversation with her. The details of that conversation were not elicited. She was told that the complainant’s parents might call.
Subsequently she answered the accused’s phone and it was the complainant’s father. He suggested that he call back when the accused was there. She said that she was aware of the situation and was happy to speak with him. She said that the accused had explained that the two of them had done things in the car and that her understanding was that the complainant was happy with what had happened. Mr Jones said that the accused had gone to the oval, that he was chasing kangaroos and that they had had sex. She said that she was aware of that. He said that this had happened on a number of occasions previously but did not involve sex. She said that she understood the accused had tried to have sex, that he had put his penis in, but took it out because it was awkward. Mr Jones then got angry and said that the accused had had intercourse for 15 minutes while the complainant was screaming “No”. Ms Smith said that the accused had told her that the complainant was happy and that she had instigated it. He did not accept that and was angry and yelling. She heard the complainant say “Dad that’s not what happened… you never listen to me Dad, that’s not what happened”. He asked whether Ms Smith wanted to speak to the complainant.
The complainant took the phone and apologised for the behaviour of her father. Ms Smith said the accused had told her what had happened between the two, and that the complainant was happy with it. The complainant agreed with her. She agreed that it only happened for a very few short seconds. Ms Smith asked the complainant if the accused forced her or hurt her or anything and she said no. Ms Smith said she really needed to explain to her parents exactly what happened because “this was a very big deal for her father to be saying this about John”. The complainant said that the accused was her friend and a good guy, and said “He’s not a rapist” and “he’s just not like that”. Ms Smith said she needed to sit down with her parents and make sure her father understood exactly what happened because it was a very big accusation for him to be making. The complainant agreed with her. The complainant said thank you for listening and apologised again. The call ended.
She denied there was any discussion about football. She denied making any threats to the complainant. She said the complainant sounded upset, stressed and very apologetic. When she hung up the phone she felt better after speaking to her. Ms Smith had said in the phone call that it was not a good idea for her and the accused to see each other anymore. She said she felt just as angry at the complainant as Mr Jones felt towards the accused.
There was a subsequent conversation in which the complainant’s father spoke to Ms Smith and said that the accused should not have anything to do with the complainant. She suggested that the complainant not contact the accused. He got very angry and, as a result, she had her husband take over the telephone call. She told the accused to block the complainant on all social media and not to talk to her.
In cross-examination she denied saying that the complainant would ruin the accused’s life. She denied asking whether the complainant wanted them to get a lawyer. Ms Smith said that the complainant told her that she was not going to the police, but prior to that she had not thought about it. She also denied mentioning the accused’s rugby, saying that at that stage he was just doing Year 12.
Charles Bannister
Charles Bannister gave evidence that he had been at school with the accused up until Year 9. He then moved to a different school, but they became “mates” again at the end of Year 12.
He gave evidence about what the complainant had told him at an 18th birthday party in July 2018 which was held at the Lyneham Hockey Centre. He said that the complainant was drunk and crying and said “Your mate raped me”. He said the complainant said that he punched her and that “they found evidence of his come [sic] inside of her and blood on her back seat”. He said that he was under the influence of alcohol at the time as well. He said she said her dad would give him $5000 to break the accused’s legs. He said that after that he found out more about it from “Edmond, who’s a mate of John’s”. He also had communications with the complainant about it on social media.
He said the messages in exhibit D2 were from a different Instagram account of the complainant to those in exhibit D1. He was not able to say which of the communications came first. His evidence was “I wanted to clarify her story again because, as I said, we were under the influence of alcohol. I wanted to make sure she was telling the same story. So yes, I just wanted to clarify exactly what she is saying”.
He gave evidence that he went to a “coasties” event with the Buckley College boys at Malua Bay. He said that the complainant messaged him before the event and said “Don’t let me near John”. He said that he said that the accused was overseas. He gave evidence that the complainant and three of her friends turned up uninvited to a party at Edmond Purcell’s house. He told them to leave. Edmond Purcell told them to leave. He said that the complainant said “Your mate’s a rapist. As soon as he gets back in Australia he’s getting arrested. As soon as he gets in the airport he’s getting arrested and taken to gaol.” He said that the front door was closed and, shortly after, a window of the house was smashed.
In cross-examination he agreed that he did not think that the complainant was telling the truth. He said that he remembered the evening of the party “clear as day”. He denied that the messages in exhibits D1 and D2, to the effect that “no one believes you” and that the allegations were not true, amounted to harassment. He agreed that he had never believed the complainant’s allegations.
In re-examination he said he had not spoken to the accused about the issues until Australia Day 2019.
Edmond Purcell
Edmond Purcell was at school with the accused. He went to the 18th birthday party on 27 April 2018. He said that he had “two drinks or something”. He said that he left at about 11pm or 11:30pm and that he went home with “a girl”, who he identified as Jane Williams. He thought that the accused went home. He did not know about anything adverse at the time. He said that he did not have any further communications with the accused that night and that his “phone died”.
In cross-examination it became clear that he had no real reason to recollect the Snapchat communications that he may have engaged in that evening or whether his phone was alive or dead at the relevant time. In re-examination, he reasoned that he was “with a girl” and, as he “was occupied”, he did not think he would have engaged in Snapchat communications that evening.
I formed the view that Mr Purcell’s evidence was unreliable.
Exhibits
The following exhibits were admitted into evidence. Where it is appropriate, I have included some commentary about the significance of the exhibit.
(a)P1: The photograph of the Snapchat message sent to a person with the account name “@John Smith”.
This is the message the complainant said she sent to the accused prior to blocking him. The accused denied that this was his display name. The text of the message is set out below at [182].
(b)P2: Photographs of the clothing worn by the complainant on the evening of the incident. There was evidence that, in addition to the clothing in the photograph, the complainant was wearing a singlet and a sports bra.
(c)P3: Text messages between the complainant and Greg Brown on 28 April 2018.
These text messages are significant complaint evidence and are discussed later in these reasons.
(d)P4: A note typed by the complainant on her phone on 23 May 2018 at 12:11am.
This is a note typed by the complainant to herself describing how she felt three weeks after the incident. It is consistent with the evidence about the sense of confusion felt by the complainant in the period after the incident.
(e)P5: Text messages between Margaret Campbell and the complainant on 28 and 29 April 2018.
These text messages were sent and received shortly after the telephone call in which the initial complaint was made to Margaret Campbell. They are consistent with Ms Campbell’s evidence about the emotional state that the complainant was in when she spoke to her.
(f)P6: Hospital records from Calvary Public Hospital in relation to the attendance by the complainant on 29 April 2018.
The “ED Referral/Discharge Summary to GP and Specialist” records the history given to the doctor in the emergency department. This complaint evidence is discussed later in these reasons.
(g)P7: Australian Federal Police Case Note recording the complaint made on 8 May 2018.
This records a summary of the complaint made to police when the complainant attended the Gungahlin Police Station with her mother on 8 May 2018.
(h)P8: Witness statement of Mary Campbell dated 29 October 2018.
Ms Campbell is Margaret Campbell’s mother. The statement records that she was woken up at about 3:16am on 28 April 2018 as a result of a text message from her daughter complaining that she felt she was going to vomit. It explains that Margaret has a medical condition where she feels nauseous frequently. When she checked on Margaret, Margaret told her that the complainant had rung and told her that she had been raped. She also told her that she had arrived home. Later that morning she called the complainant to check in on her and was told that she was having breakfast with her mother and was in the process of telling her. She then spoke to the complainant’s mother. Both the complainant and her mother were crying. The evidence corroborates Margaret Campbell’s evidence about the complaint made to her, and also the complainant’s version of what happened at breakfast with her mother on 28 April 2018.
(i)D1: An email from the complainant to Senior Constable Bensley, attaching communications between the complainant and Charles Bannister.
The email was sent in response to a request from Senior Constable Bensley that she be provided with communications with other people concerning the incident. The chat messages attached included Mr Bannister saying “U know know one believes u and ur getting a bad name about it” and the complainant replying “honestly I couldn’t care a lot a what people think since it’s the polices job to figure out who’s telling the truth & ive got the evidence i need now anyways”. He then asks what the evidence is and she declined to tell him. The email explained that she replied the way she did “hoping it would at least stop people talking about it which so far it has”.
(j)D2: Further communications between the complainant and Charles Bannister on the complainant’s private Instagram account.
Mr Bannister says “Is that shit with… [JS] true apparently it’s not”. As part of her response she says that the accused and his parents know “but they don’t know that i’ve gone to the police & hospital to get the forensic test because at that time i was so against going”. Consistently with the evidence of Mr Bannister about what he was told at the party in July 2018, he asks “R ur parents seriously getting someone to fuck him up” and she says that she was drunk and upset when she spoke to him and she wanted something bad to happen to him. She says “but it’s been just over 3 months so it’s been a while”. Later in the chat she also says, falsely, that “oh well he’s gonna be the one explaining why i had trauma to my private area & his cum was in me if i decide to go forward with it”.
(k)D3: Google maps satellite images of the location of the car park where the incident took place.
(l)D4: A photograph of the back seat of the complainant’s vehicle.
(m)D5: Text messages between the complainant and Margaret Campbell (a subset of the messages in exhibit P5).
(n)D6: Text message communications between the complainant and the accused on 24 February, 3 March, 14 March, 17-18 March, 13 April, and 18 April 2018.
The communications on 24 February 2018 show arrangements between the complainant and the accused for the accused to pick her up from a party that she was attending.
(o)D7: Text messages between the complainant and Sandra Peters on 16 March and 28 April 2018.
The text message communications between the complainant and Ms Peters on 16 March 2018 involves Ms Peters encouraging her to engage in sexual acts with the accused. In the text message conversation, the complainant says “surely only sleep with people you’re actually with” and “I still reckon only if you’re dating & especially at this age”. There are also communications in the early hours of 28 April 2018 where the complainant declines to provide much information about what happened with the accused.
(p)D8: Short videos and still photographs from Snapchat from the complainant’s phone.
Among the photographs and videos are:
(i)a video taken by the accused when travelling in the complainant’s car showing him in an elevated mood;
(ii)a video of him crawling on the grass on the oval and grabbing the complainant’s legs with much hilarity;
(iii)a video of him in the back of the car jokingly telling the complainant not to photograph him;
(iv)a video of both of them saying good night to Margaret;
(v)a video of him pulling his pants away from his body and taking a photograph down his pants with much amusement.
These videos, taken on the night of 27 April 2018, show the accused in an elevated mood either as a result of a degree of intoxication or otherwise.
(q)D9: Email chain attaching the email sent by “Amanda Watching” to the accused’s rugby union team.
This is the email that was created by the complainant’s mother in October 2018 and sent under a false name. It purported to be a complaint about what the author had been told by her daughter about something that happened to one of her friends. It names the accused and suggests that to see the accused represent Australia prior to “this young lady” having her day in court would be a disgrace.
Elements of the offences
Section 60 of the Crimes Act provides:
60Act of indecency without consent
(1) A person who commits an act of indecency on, or in the presence of, another person without the consent of that person and who is reckless as to whether that other person consents to the committing of the act of indecency is guilty of an offence punishable, on conviction, by imprisonment for 7 years
…
(3) For this section, proof of knowledge or recklessness is sufficient to establish the element of recklessness.
The elements of this offence are:
(a)the accused commits an act;
(b)the act is indecent according to the standards of morality and decency held by ordinary members of the community;
(c)the act is committed on, or in the presence of, another person;
(d)the other person does not consent to the act; and
(e)the accused is reckless as to whether the other person is consenting to the act.
Section 54 of the Crimes Act provides:
54Sexual intercourse without consent
(1) A person who engages in sexual intercourse with another person without the consent of that other person and who is reckless as to whether that other person consents to the sexual intercourse is guilty of an offence punishable, on conviction, by imprisonment for 12 years.
…
(3) For this section, proof of knowledge or recklessness is sufficient to establish the element of recklessness.
The elements of engaging in sexual intercourse without consent are:
(a)the accused engaged in sexual intercourse with another person;
(b)the other person did not consent to the sexual intercourse; and
(c)the accused was reckless as to the consent of the other person.
The definition of sexual intercourse includes, relevantly, the penetration, to any extent, of the genitalia of a person by any part of the body of another person: s 50(1)(a). It also includes the continuation of such intercourse: s 50(1)(f). It therefore covers penile penetration of any part of the female genitalia or the continuation of such penetration.
Because recklessness for the purposes of s 54(3) includes knowledge or recklessness, this element may be satisfied by establishing beyond reasonable doubt:
(a)knowledge on the part of the accused that the complainant did not consent to sexual intercourse;
(b)awareness that there is a possibility that the complainant was not consenting: Banditt v The Queen [2005] HCA 80; 224 CLR 262; or
(c)a failure to consider whether the complainant consents or not, reflecting an indifference as to whether or not she consents: R v Stevens (No 2) [2017] ACTSC 296.
Assessment of the evidence
The complainant
At the time of the evidence-in-chief interview the complainant was 17 years old. By the time of the trial she was 19 years old. The complainant’s demeanour was impressive, particularly during the course of her cross-examination. I remind myself of the caution that must be applied to not place too much emphasis on a witness’ demeanour when assessing the reliability of the witness’ evidence.
Notwithstanding a lengthy cross-examination, her answers were usually very clear and responsive to the question that was asked. Even when dealing with intimate and awkward topics and giving evidence which would not necessarily advance the Crown case, she answered clearly and without defensiveness. She made clear what she could recollect and what she could not.
The effect of her evidence was that in the days following the incident she had great uncertainty in working out how she felt about what had happened and whether or not to pursue it by making a complaint to police. This uncertainty as to what to do about the incident was entirely credible. It explained her reluctance to tell her parents about what had happened to her and the approach that she took in the discussion with the mother of the accused after her father had blown up in the early stages of his conversation with her. It is consistent with her reluctance to make an immediate complaint to police and the reasons for her confused approach to undergoing a forensic medical examination when she attended the Canberra Hospital. It also explains, to an extent, the ambivalence about whether to proceed with the police investigation after the evidence-in-chief interview. Rather than undermining the credibility of the complainant, the confusion, guilt and ambivalence appeared to me to be indicative of a truthful complaint.
The attack on her credibility related to collateral matters, the principal ones being:
(a)whether she had performed fellatio on the accused at Mount Ainslie or on the evening in question;
(b)the terms of the conversation that she had with Elizabeth Smith;
(c)her apparent uncertainty with Senior Constable Bensley as to whether or not she wished to pursue her complaint;
(d)her errant behaviour following the incident, including:
(i)her investigation of the possibility of falsely creating a forensic report;
(ii)the statements made to Mr Bannister at the July 2018 party about the evidence available and her feelings towards the accused;
(iii)her false statements in her instant messaging communications with Mr Bannister;
(iv)the evidence about her behaviour at the “coasties” event at Edmond Purcell’s parents’ house;
(v)her selectiveness in her communications with police.
It is not necessary to make detailed findings of fact about some of these matters. It is important, however, to note the complainant’s willingness to make admissions about engaging in conduct which might be seen as damaging to her credibility, in particular, in relation to the items at (d) above.
However, I did not consider the false or misleading statements made by the complainant to be particularly damaging to her credibility. As the complainant pointed out during her evidence, the context in which the messages were sent is important. When it was suggested that she lied in the message in exhibit P1, just as she had lied to Mr Bannister, the complainant said:
There’s a big difference between those messages. Telling John what I had told my parents happened and trying to stop ongoing harassment by yes, lying, but with the intention of stopping the harassment and the bullying that was going on at school. There is a very big difference.
I accept that at all times she wished to be believed, a sentiment which is unsurprising, and that this remained important for her at the time of her cross‑examination. I consider that it is likely that after her refusal to have a forensic examination at the hospital she came to significantly regret that, as she learned the significant corroborative value that such an examination would have had. Her state of mind was not assisted by the attitude of her father, whose volatility and anger manifested itself in threats of violence.
Generally, I consider that her post incident conduct is consistent with anger at what had occurred, a strong desire to be believed, an unpleasant social environment in which hostile intermeddlers such as Mr Bannister confronted her and a level of emotional turmoil reflected in the self-harm referred to by her mother.
The complaint evidence
The complaint evidence was very strong.
Complaint to Margaret Campbell
The strongest complaint evidence is that of Margaret Campbell. Her complaint to Ms Campbell took place shortly after the accused was dropped home. The evidence of the complainant was that almost immediately after dropping the accused home, she was crying hysterically. She then tried to call a cousin and a friend in Melbourne. Neither answered. She started driving and when she was on the Tuggeranong Parkway she called her friend Margaret. Margaret’s evidence of hysterical crying was such that she thought that the complainant’s brother had died. After about five minutes the complainant said “I said no, I said no. He stuck it in me. I said no”. She agreed in cross-examination that her most accurate recollection was that the complainant said “I was trying to say no”. Ms Campbell did not know who she was talking about until the complainant subsequently managed to explain things more slowly.
This evidence was very credible. It is inconsistent with mere regret at a brief incident of consensual intercourse. It is consistent with there having been sexual intercourse which was expressly not consented to. The subsequent text messages corroborate the making of the complaint and the emotional state that the complainant remained in even after the conversation concluded, with the complainant messaging that she was crying and shaking to an extent that it made it difficult to drive.
I accept that Ms Campbell’s evidence as to the complaint extended to a complaint that the accused “started to finger her to which she said no”. I do not consider this discrepancy between the complaint evidence and the evidence given at trial to be of significance. There are a variety of possible reasons for the discrepancy. In my view, it does not undermine the force of the complaint in relation to non-consensual penile‑vaginal sexual intercourse, having regard to the circumstances in which it was made and the nature of the complaint. I regard the complaint evidence concerning the complaint to Ms Campbell as being significant evidence that the sexual intercourse was not consented to and that it involved the use of some force. It is also evidence which supports the credibility of the complainant.
The complaint must be assessed against the background that the complainant had previously engaged in consensual sexual activity with the accused. This included the incidents of mutual masturbation at Mount Ainslie. In light of this previous consensual activity, it makes it more likely that the complaints of sexual assault were made in circumstances that involved a significant departure from prior consensual conduct. It is clear that even after the incident, the complainant recognised that she really liked the accused (telling Mr Brown “I liked him so much”). The previous consensual sexual activity and her feelings towards the accused make it less likely that the complaint arose out of a brief period of consented to but later regretted sexual intercourse, as opposed to non-consensual intercourse.
The other complaint evidence is significant but, having regard to the dramatic circumstances of the complaint to Margaret, it has relatively less weight.
Complaint to Alison Jones
The complaint was made by the complainant to her mother when they had gone to the café. Her mother had earlier heard her crying and found her on her phone to a friend in Melbourne called Judith. The complainant then requested, or her mother suggested, that they go out for breakfast. It was then that her mother described her making the complaint “that John raped her”. The description given by her mother was consistent with the Crown case, in that it involved her saying “No, no, no”, that she tried to push him off but he was too powerful, and that she lay there and cried. The fact of making the complaint to her mother is significant, in that it is consistent with something of enough traumatic significance to have occurred that it would warrant the disclosure of intimate sexual activities with a boy by a 17-year-old young woman. Her obvious upset in the circumstances reinforces the credibility of the complaint evidence.
Complaint to Sean Jones
The complaint to her father is of less use, as he only obtained the most rudimentary of details before losing his temper. However, the making of the complaint to him soon after the incident in question is generally consistent with the complainant’s evidence as to what occurred.
The complaint made at hospital
The visit to the hospital only took place as a result of the complainant talking to her grandfather, a retired police officer. Those circumstances, and the lack of desire for police involvement, support the proposition that the complaint of non-consensual sex was a truthful one. The medical records indicate that the complaint was as follows:
-came accompanied by her mum to have medical check up and +_Prophylaxis
----after early Saturday morning 36 hrs ago-alleged sexual assault
was out with her male friend Friday night, states that that sex was not consensual
refuses to take legal actions against offender-AFP or sexual assault group involvement
Given the medical records indicate that the complainant already had a form of contraception, had the only concern been “regretted sex” and a concern about possible sexually transmitted diseases, then the complainant would not have needed to have described the sex as non-consensual. I do not accept the hypothesis that following the reaction of her father to the initial complaint made to him, the complainant felt bound to propound a false narrative about the sexual interaction. That case theory appeared to me to be an unrealistic assertion inconsistent with the variety of evidence put forward supporting the genuineness of the complaint.
Complaint to Greg Brown
Mr Brown was a friend of the complainant. The complaint made to him is significant. It occurred after some basic details had been reported to Mr Brown by the complainant’s father. It occurred at a time when the complainant did not intend to go to the police and when she was feeling very confused about what had occurred. It was a private communication which occurred in circumstances where it is likely to have been unaffected and honest. The conversation took place at about 12:55pm on 28 April 2018, that is, before the conversation with Elizabeth Smith. It included the following:
Complainant: i’m guessing dads rang you
Brown: Are you okay
Complainant: i am but idk at the same time
Complainant: i’m just confused
Complainant: like i said no over and over again and pushed him off and told him to stop
Complainant: but he said he misunderstood
Complainant: I just stop saying no and stop and lied there while he was doing it and then he stopped after a while and said sorry heaps and started hitting himself saying he fucked up over and over again
Brown: What the duck [sic] that’s not okay
Brown: That’s not okay are you feelin okay
Complainant: I just feel really sick
Complainant: it’s so hard to explain i feel like guilty and dirty idk how to say it
Brown: :((( that’s so fucked up
He then suggests that the complainant give her father the number of the accused. The complainant then does so and tells him. After the conversation between Mr Jones, the complainant and Ms Smith, there is a further text conversation at about 3:15pm in the afternoon:
Brown: What happened
Complainant: dad rang him and spoke to his mum then i spoke to his mum and just told her what happened
Brown: And what happened ??
Complainant: and then she just wanted to know if we were going to the police or not and I told her we wouldn’t
Brown: That’s so messed up
Brown: I hope your [sic] okay
Complainant: thank you
Brown: What did she say
Complainant: i don’t even remember she just wanted to know everything that happened it was so awkward to explain
Brown: That’s so bad I’m sorry that happened Mary
Complainant: i liked him so much
Brown: Mary :(
Complainant: and now it’s all ruined and idk what to do
Complainant: or think or feel or say
Complainant: like it’s hard to explain
Brown: You don’t have to do anything
Brown: That’s fucked up
Brown: Mary your dad wants me to do something about this do you want me to
Complainant: nah it’s okay dads just mad don’t listen to him
There are five points about these communications:
(a) First, for the reasons I have given above, this complaint is significant because, having regard to the circumstances in which it is made and the person to whom it is made, it is very likely to be both honest and accurate.
(b) Second, the first part of the conversation is significant because it discloses details of the incident consistent with the Crown case.
(c) Third, it discloses that after the incident, and prior to the conversation with the mother of the accused, the accused had communicated to the complainant that he misunderstood.
(d) Fourth, the statements about the complainant’s confusion and her sadness because “i liked him so much” are entirely credible and lend weight to the credibility of the complaint in the messages.
(e) Fifth, the complainant’s dismissive rejection of her father’s approach to the problem is inconsistent with the theory propounded on behalf of the accused that, having made the complaint, she was so heavily influenced by the approach of her father and mother that she pursued a false complaint.
Snapchat message
Exhibit P1 is a photograph of the complainant’s phone. It shows a message sent using the Snapchat app. The portion that is photographed is part of a “chat” which comprises a mixture of text messages and “snaps”. The screen shows that the photographed text message was sent from the complainant prior to at least two other snaps which had been opened by the recipient. The recipient of the message is identified as @John Smith. The accused denied having a Snapchat account with the @ symbol prior to his name. The message appears to recount what the complainant told another female (“i told her that…”) and then contains a recitation of the events relevant to the present charges.
doing stuff & i told her that i was using my hand and mouth & you had used your hand and that you asked if we could have sex & i said no because you’ve been drinking & that you ended up on top of me & you were just moving up and down & whenever i felt it was about to go in i told you no and to stop & then you went down to use your head but i pushed your head away & you came back up and we kept kissing and going on with that and then you put it in & i said no a few times but then you didn’t so i just stop saying and lied there but then you stopped and realised i was actually being serious when i said no and stop
The photograph was taken at 12:57pm on Saturday, 28 April 2018. The message, which is photographed, was sent sometime prior to that. It therefore reflects a message sent prior to the conversation with the mother of the accused. The complainant’s evidence was that it was a recitation of what she had told her mother about what had occurred. It is consistent with the complainant’s version of events. It is a communication consistent with what might be expected when the complainant was still communicating with the accused and trying to work out how she felt about what had occurred, in circumstances when she knew her father was angry and wanting to call the accused.
In his oral evidence the accused denied that he ever had a display name with the @ symbol in front of it. He also denied having received a message as long as that from the complainant. The suggestion that this was not his address, or involved a message that had been concocted, was not squarely put to the complainant in cross‑examination.
The inconsistency that was pointed out on behalf of the accused in cross‑examination was that there was a reference to the complainant using her mouth. The complainant denied any fellatio and explained this reference as being a reference to spitting on the accused’s penis in order to lubricate it. This was not a convincing explanation.
Consistently with the complainant’s evidence and the content of the messages with Mr Brown, the terms of this text message are consistent with it having been communicated to the accused prior to the telephone conversation initiated by the complainant’s father. It is consistent with the explanation by the complainant to the accused of what she had told her mother about what happened. It is consistent with him having understood that the complainant remained upset about what had happened the night before and being given advance notice that her parents were going to call his parents. It is not necessary to make any final finding of fact as to whether or not it was received by him. I am, however, satisfied that it is a contemporaneous document created by the complainant recording her version of events.
Evidence of the accused
Although the evidence as to any previous criminal history was inadequate, the parties appeared to approach the matter on the basis that the accused was a person of good character. I approach the assessment of his evidence on the basis that he is such a person, consistently with a direction that I have set out earlier.
The accused was not a particularly impressive witness. However, I remind myself not to place too much weight on his demeanour in the witness box or the manner in which he gave his answers, as opposed to the content of those answers. His denial that he was taking a photograph of his penis or holding his pants open in the Snapchat video within exhibit D8 did not reflect well on his credibility.
Ultimately, there was little dispute about the basic narrative of events on that evening given by the complainant. So far as what occurred in the car, the areas of dispute were whether or not the complainant had performed fellatio upon him, whether he had offered or attempted to “lick her out”, whether there was a conversation in which the complainant expressly consented to sexual intercourse, the duration of sexual intercourse and whether the complainant said “no” or otherwise resisted during the course of that sexual intercourse.
On the central issue in the case, the accused said that the complainant positively agreed to sexual intercourse, which then commenced but stopped after about 10 seconds because “it just got real awkward”. He then withdrew his erect penis and put his pants back on. He then said that the two of them spent 40 minutes having a general chat. This version of events seems to me to be positively implausible. There was no adequate explanation of why matters “got real awkward” or why a fully aroused 17-year-old boy who had been engaging in mutual masturbation would cease intercourse after 10 seconds with a young woman who, on his version, was fully consenting. The reference to the absence of a condom seems to me to be an ex post facto rationalisation which did not fit with the assertion that there had been an explicit conversation earlier about sexual intercourse. I do not accept the accuracy of the evidence given by the accused about what occurred in relation to the sexual intercourse.
Because of my rejection of his evidence on the central issue as to consent to, the nature of and duration of sexual intercourse, his other evidence about matters going to the complainant’s credit, such as the performance of fellatio at Mount Ainslie, do not cause me to have a doubt about the accuracy of the complainant’s version of events.
Evidence of Elizabeth Smith
I formed the view that Ms Smith’s evidence was generally reliable, although likely to be affected by the passage of time and her obvious desire to believe her son. I consider that her recollection of the phone conversation is more likely to be accurate than that of the complainant. It is notable, in relation to the complainant’s recollection, that even shortly after the conversation with the accused’s mother, her text messages with Greg Brown indicate she did not have a good recollection of what had been said.
I do not consider the content of the conversation to be damaging to the credibility of the complainant. That is because it must be borne in mind the circumstances in which the conversation occurred. So far as the complainant was concerned, she was a 17-year-old girl who alleged sexual impropriety, but was at that point trying to work out in her own mind how serious the conduct was. She had, as a result of her father’s determination to make the telephone call and then his volatile, aggressive and inappropriate conduct of the call, been put in a position where, unexpectedly, she was talking to the mother of the accused, an adult, who she had never met. It is unsurprising that in those circumstances she was apologetic for her father’s conduct, was conciliatory, played down what had occurred and indicated that she had no intention to go to the police. It is also unsurprising that, having had Ms Smith calmly but firmly remind her of the gravity of the allegations that she was making, that Ms Campbell observed her to be taken aback and quite frightened after the call.
Evidence of Charles Bannister and Edmond Purcell
The evidence of Mr Bannister was largely accepted by the complainant. For the reasons that I gave earlier, I do not consider that the evidence is of great significance for the credibility of the complainant. As indicated earlier, I did not consider that the evidence of Mr Purcell was reliable and it was not of significance.
Conclusion and findings
I accept beyond reasonable doubt the evidence of the complainant that the sexual intercourse occurred without her consent. That evidence was consistent with her conduct, including her complaints to Ms Campbell, her parents and Mr Brown after the incident. That is also consistent with the attitude that she had previously demonstrated to Ms Peters.
I have rejected the accused’s evidence about the critical events in the car. That evidence does not cause me to have a doubt about the complainant’s evidence that she did not consent and did not have a conversation in which she indicated that she consented either to sexual intercourse or to being “licked out”.
I accept beyond reasonable doubt the complainant’s evidence that the accused requested that they have sexual intercourse and that she said no. I accept that he asked if she wanted to be “licked out”, that she declined and that he went down as if to do so and licked her thigh. I am satisfied that this was indecent in the relevant sense. Because I am satisfied that the complainant had declined the offer made by the accused, I am satisfied beyond reasonable doubt that she did not consent to the licking of her thigh and that the accused was as least reckless as to her lack of consent. I am satisfied that each element of count 1 has been proven beyond reasonable doubt.
I am satisfied beyond reasonable doubt that sexual intercourse did occur. That finding is uncontroversial having regard to the evidence of the accused.
I accept the complainant’s evidence that, following on from the mutual masturbation, the accused was positioned over her and penetrated her vagina, and that she said “No” or otherwise verbally indicated that she did not want this to occur. I accept her evidence that he penetrated her vagina again and that once again she said “No” or otherwise verbally indicated that she did not want this to occur.
I do have a doubt about the complainant’s evidence as to the duration of the sexual intercourse. Her evidence ranged from it being a couple of minutes through to 10 minutes, but most consistently fixed on the period of 10 minutes. The doubt that I have arises from the absence of a coherent explanation of what might have been occurring during that 10 minutes which would also be consistent with the accused desisting from further intercourse when he observed the complainant to give up and cry. I accept the complainant’s evidence about giving up, turning away and crying beyond reasonable doubt. I have a doubt about her explanation of what was occurring during the period of intercourse prior to that, as her description of the interaction appears to be inconsistent with the enthusiasm of the accused waning so decisively when he observed her to be crying.
I am satisfied beyond reasonable doubt that the intercourse continued for a period until the complainant turned her head and started crying, after which the intercourse continued only for approximately a further 20 seconds. During the period prior to the complainant turning her head and crying, I have a doubt as to whether the accused deliberately used force upon her for a period of minutes. There is no doubt that he was on top of her, was stronger than her and was in a position to exercise a degree of physical control over her during the intercourse. However, I have a doubt as to whether he deliberately used that strength to subdue her.
I am satisfied beyond reasonable doubt that the accused was reckless as to the complainant’s consent. She had previously declined to have sexual intercourse with him. She is not taken to have consented to sexual intercourse because she was prepared to engage in mutual masturbation or even perform fellatio on him. I am satisfied beyond reasonable doubt that the previous refusal of consent, and the absence of express consent immediately prior to intercourse, gave rise to a possibility in the accused’s mind at the point where he first penetrated her that the complainant was not consenting. After he had penetrated her, she indicated her lack of consent and the continuation of the intercourse at that point was at least reckless. My finding is at least recklessness, because there is a possibility that he was prepared to discount her statements that she did not consent. However, I am satisfied beyond reasonable doubt that he recognised the possibility that she was not consenting.
At the point where the complainant simply gave up and cried, the attitude of the accused changed and he ceased to have sexual intercourse. He was not prepared to continue the sexual intercourse when it became obvious to him that the complainant was upset to the point of tears. I am satisfied beyond reasonable doubt that the accused then recognised that he had gone too far and had proceeded in circumstances where the complainant had not consented to the sexual intercourse. It is that which provides the reason, consistent with the complainant’s evidence, for him wishing to discuss what had occurred with her, in the hope of reducing or eliminating any upset on her part and thereby protecting his own interests.
I am therefore satisfied that the elements of the offences charged in counts 2 and 3 have been proved beyond reasonable doubt.
The accused is guilty on counts 1, 2 and 3 on the indictment.
| I certify that the preceding two hundred and five [205] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 4 June 2020 |
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