R v Taylor
[2025] SADC 93
•24 July 2025
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TAYLOR
Criminal Trial by Judge Alone
[2025] SADC 93
Reasons for the Verdicts of his Honour Judge Muscat
24 July 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
The defendant is charged with one count of indecent assault and one count of rape.
On 13 March 2024, the defendant attended the Crazy House Revue, an adult entertainment club in Adelaide, and paid for a private dance. The prosecution alleged that during this private dance, the defendant bit the dancer’s right nipple and then inserted his fingers into her vagina.
The complainant made a prompt complaint and there was evidence of distress.
There was DNA evidence that was explicable by either direct or secondary transfer due to the close personal nature of the dance.
The defendant denied the allegations when interviewed by police.
Verdicts: Not guilty of both counts.
Evidence Act 1929 (SA) ss 34M, 34P, 34R, referred to.
R v Barnes [2025] SASCA 53; R v Heng [2025] SASCA 57; R v Churchill [2025] HCA 11; R v Fergusson [2024] SASCA 63, applied.
R v TAYLOR
[2025] SADC 93Introduction
Adam John Taylor (‘the defendant’) has pleaded not guilty to one count of indecent assault and one count of rape and has elected to be tried by judge alone.
It is alleged that on 14 March 2024 during a private dance or ‘lap dance’ at the Crazy Horse Revue (‘the Crazy Horse’), an adult entertainment club on Hindley Street in Adelaide, the defendant bit a dancer on the right nipple and then inserted his fingers into her vagina.
The defendant admits that he paid for the lap dance but has denied the allegations that form the basis of the charges. The issue in the trial is whether these acts occurred.
The prosecution must prove the charges beyond a reasonable doubt for the defendant to be found guilty.
The defendant does not have to prove that he did not commit the offences as charged. He is presumed to be innocent of each charge unless and until the evidence I accept satisfies me that the offences charged have been proved beyond a reasonable doubt.
The prosecution case rests on the credibility and reliability of the complainant.
The defendant was arrested on 14 March 2024 at about 1:30 am and interviewed at about 6:30 am. He denied the allegations.
Background
The complainant
The complainant, C, is employed as a dancer at the Crazy Horse and has been working in this role for about a year and a half.[1] In March 2024, C was a new employee at the Crazy Horse and had been employed ‘not quite a month’.[2]
[1] T 18.
[2] T 19.
Venue manager
Kimberley McCoy was the venue manager of the Crazy Horse in March 2024.[3] The venue manager’s role involves a wide range of duties such as running the venue, daily operations, opening, closing, assisting different areas and back of house roles.[4] One part of this role includes conducting routine ‘safety checks’ of dancers in private rooms.[5] McCoy explained that this involves pulling aside the curtain slightly to look into the room to make sure that everyone is following the rules and maintaining a safe environment.[6]
[3] T 93.
[4] T 93.
[5] T 93, 102.
[6] T 93.
Role of a dancer at the Crazy Horse
C described the role of a dancer at the Crazy Horse as befriending patrons, having drinks with them, talking to them and performing private dances or ‘lap dances’.[7] These private dances involve stripteases in a private room.
[7] T 19
Pay structure
C explained the pay structure for dancers at the Crazy Horse.[8] Dancers pay a ‘house fee’ to the venue that is taken out of their pay at the end of the night. Patrons pay $85.00 per 10 minutes for private dances and the dancers keep $60.00 – $65.00 from that amount depending on whether the patrons pay with cash or card. The dancers will then keep any tips they make throughout the night.[9] C said that the ultimate goal in her role as a dancer is to sell private dances.[10]
[8] T 20.
[9] T 19.
[10] T 19.
Private rooms
When a dancer takes a patron for a private dance, the dancer will take them to one of the private rooms in the venue.[11] The usual layout of a private room includes a couch, mirror, chair or ottoman and a curtain for privacy.[12] Whilst they are described as a room, in reality they are better described as a booth. They are very small in size, as the exhibits demonstrate.[13]
[11] T 21.
[12] T 22.
[13] Exbibit P1 and Exhibit D2.
The Crazy Horse has various private rooms located on both the ground and upstairs levels of the venue.[14] Upstairs there is a cash register where patrons pay for private dances before going into a private room with a dancer.[15] There is ordinarily an attendant at the cash register.[16]
[14] T 21; Exhibit P6.
[15] T 21, 24.
[16] T 21.
Rules for private dances or ‘lap dances’
C said that when she first started working at the Crazy Horse, she was shown around the club by a ‘veteran dancer’ as an introduction to the role.[17] She was given instructions and tips on what to do during a private dance.[18]
[17] T 58.
[18] T 60.
C explained that there are rules for dancers performing private dances.[19] Patrons are told there is to be no touching of a dancer’s private areas, and that touching is to be kept to a minimum on other body parts. Patrons may touch parts of a dancer’s leg, but not higher than the knee, they can touch most parts of the arms but not the torso. Patrons are also told there is to be no recording inside the private rooms.[20] Before entering the venue, the patrons are also told that there is to be no touching of any dancers.[21]
[19] T 20.
[20] T 20.
[21] T 95.
C said it is her practice to personally tell patrons these rules before the start of a private dance. Generally, when C would perform a private dance, she would start with a striptease that would eventuate into a lap dance where she would sit or straddle the patron’s lap, facing them with her knees on either side of their legs.[22] If a patron is not following the rules, C said she will either require them to sit on their hands or she will kneel on their hands to stop them from touching her.[23] If something happens during a dance that makes a dancer feel uncomfortable, the standard and accepted practice is to end the dance and leave the private room.[24]
[22] T 22.
[23] T 21.
[24] T 45.
Although C was new to the role, she had performed private dances before the alleged offending on 14 March 2024.[25]
[25] T 60.
Evidence
On Wednesday 13 March 2024, C was working as a dancer at the Crazy Horse.[26] She started her shift around 8:30 pm and was scheduled to finish at 5:00 am the following morning.[27]
[26] T 22.
[27] T 22.
That night, C wore a black dress that tied up at the front, black lingerie, fishnet stockings and her dancer shoes.[28]
[28] T 27.
Around 11:00 pm,[29] C and another dancer, Zara, approached two male patrons in the main area of the venue.[30] They engaged in small talk with the men, having drinks with them and tried to convince the men to go for a private dance.[31]
[29] T 22, 54.
[30] T 23.
[31] T 23.
C identified one of these men as being the defendant.[32] She described the defendant as being tall, Caucasian and having facial hair. She said he was wearing a polo shirt with a company logo and jeans.[33] There is no dispute that C was engaging with the defendant.
[32] T 24.
[33] T 23.
C said that the defendant left for a private dance with Zara while C stayed with the other man.[34] When the defendant returned from his private dance with Zara, he approached C and asked her for a private dance.[35]
[34] T 24, 54.
[35] T 24, 62.
C took the defendant upstairs where the defendant paid for a 20-minute private dance at the cash register.[36] The VIP room attendant that night, Kelly, was at the cash register and processed the payment.[37]
[36] T 24.
[37] T 39.
C then led the defendant to one of the private rooms, ‘Room 1’.[38]
[38] This is the private room depicted on the right-hand-side of Exhibit P1 Image 002; T 24, 26, 63; Exhibit P2 at 00:03:31.
Layout of Room 1
In cross-examination, C was shown a portion of body-worn camera footage taken by attending police of Room 1 at about 1:30 am on 14 March 2024.[39] A screenshot of Room 1 was produced[40] from the body-worn footage.[41] The screenshot shows a small rectangular room with a yellow chair pushed against the left-hand wall and a couch pushed against the right-hand wall.
[39] T 81-82.
[40] Exhibit D2.
[41] MFI-D1.
C said that the furniture and set up, as depicted in the screenshot, was different to the furniture and set up of the room at the time she took the defendant inside for a private dance.[42]
[42] T 83.
C was also shown Exhibit P1, which depicted the room with the same chair and couch as depicted in Exhibit D2. C said the room was set up in the same way that night except there was an ottoman rather than a yellow chair and an additional table inside the room.[43]
[43] T 28.
C agreed there was a couch in the room, as depicted in Exhibit P1.[44] If facing the entrance of the room, the couch was positioned against the right wall and went the length of the wall.[45] It appears to be a fixed piece of furniture against the wall. C agreed that the gap between the couch and the chair was approximately half a metre.[46]
[44] T 28.
[45] T 73.
[46] T 65.
C said there was also a ‘pretty small’, square, glass top table inside the room.[47] It was small enough for people to place their drinks on. C said that the table would have been behind the wall in front of the couch, against the wall but to the right of the entrance.[48] This table is not captured in the body worn camera footage, as the police did not enter the room. If there was a table in the room as C said, then the free area in the room would have been extremely confined. The photographs adequately capture the small size of the room.[49]
[47] T 28.
[48] T 65.
[49] Exhibit P1.
C described the ottoman that was in the room as circular in shape.[50] She said that it was positioned against the back-left corner of the room and was freestanding.[51] During cross-examination, C said that she moved the ottoman during the dance to be positioned slightly away from the wall opposite the couch, and into the middle of the room.[52]
[50] T 63-64.
[51] T 64.
[52] T 78.
Despite the body worn footage showing a chair in Room 1, C maintained her evidence that there was an ottoman in the room and not a chair.[53]
[53] T 82.
Taking the defendant for a private dance
After leading the defendant to Room 1, C gestured for the defendant to go inside and directed him to sit on the couch.[54] When she entered the room the defendant was sitting on the couch.[55] She closed the curtain, placed her handbag on the table in the room and took off her shoes.[56]
[54] T 26.
[55] T 29, 54.
[56] T 27.
As C was taking off her shoes, she explained the rules of a private dance to the defendant.[57] C agreed that she went into the private room assuming that the defendant already knew the rules as he had just had a private dance with Zara.[58] However, she said she still went over the rules with the defendant.[59] C could not recall the exact words she used but said she told the defendant there was limited touching allowed.[60]
[57] T 28.
[58] T 65.
[59] T 65-66.
[60] T 65-66; In cross-examination, C admitted that in her affidavit to police on 21 March 2024 she said she started dancing and took off her bra before she told the defendant anything about the rules of the dance: T 67.
After explaining the rules, C started to do a striptease for the defendant and removed her dress. She explained that there was music playing throughout the club and that she was dancing to that music.[61]
[61] T 29.
C said she approached the defendant who was sitting on the couch in the private room. She straddled the defendant, positioning her knees on either side of the defendant’s knees.[62] At this point, she had taken off her dress but remained in her lingerie.[63]
[62] T 29.
[63] T 29.
While straddling the defendant, C removed her bra to expose her breasts.[64] She proceeded to dance while straddling the defendant.[65] In cross-examination, C said she did not remember whether during the dance she pressed her bare breasts into the defendant’s face but admitted that it was possible this happened.[66]
[64] T 30.
[65] T 30.
[66] T 55.
C said this is when the defendant started to get ‘handsy’,[67] touching her legs, thighs, waist and chest, including her breasts, with both of his hands.[68]
[67] T 30.4.
[68] T 30-31.
C said that she got off the defendant’s lap and reminded him of the rules of a private dance.[69] The defendant apologised. C said she made the defendant sit on his hands before continuing to dance.[70]
[69] T 30, 67.
[70] T 31, 68.
C agreed that the defendant was touching her in a way that was more than what she was comfortable with, including touching her breasts. C also agreed that she told the defendant if he did not stop touching her, she would walk out.[71]
[71] T 60.
The defendant remained sitting on his hands for a few seconds before pulling his hands back out from under him. C explained that even though the defendant pulled his hands out from under him, she was hoping he was not going to touch her again and that she gave the defendant the benefit of the doubt.[72] C then proceeded to straddle the defendant again.[73]
[72] T 69.
[73] T 69.
After this, the defendant started to touch C again.[74] C said she then knelt on the defendant’s hands to stop him from inappropriately touching her.[75]
[74] T 30-31.
[75] T 32; At T 31, C said the biting occurred after the defendant removed his hands from under him. Later at T 32, C said the biting occurred just after she knelt on the defendant’s hands.
Biting the complainant’s breast (Count 1)
C said that just after she knelt on the defendant’s hands, the defendant bit her right nipple.[76] C had piercings in both her nipples.[77] She explained that she went to pull away from the defendant but was concerned that if she did her piercing would have ripped out.[78] C said the defendant was biting ‘pretty hard’ directly onto her nipple and it hurt. She said the defendant’s teeth were around her nipple and piercing.[79]
[76] T 32.
[77] T 32.
[78] T 32.
[79] T 32.
When this happened, C said she told the defendant ‘You can’t do that’ and placed her hands on his chest and started to push him away slowly.[80] After about five seconds, the defendant stopped biting her nipple and apologised by saying ‘I’m sorry’.[81]
[80] T 33.
[81] T 33.
After pushing the defendant away, C said she stood up and started dancing on the other side of the room to try and keep some distance between herself and the defendant.[82] She said she was dancing with her back against the left side wall, opposite the couch.[83]
[82] T 33.
[83] T 72.
C explained that she had never walked out of a dance before so she was hoping the situation would just diffuse itself if she kept some sort of distance.[84]
[84] T 70.
Touching the complainant around the neck
C said she was dancing for around 15 to 30 seconds before the defendant stood up from the couch and approached her.[85] The defendant put his hand on her neck, around her throat, and began to push her towards the wall where the ottoman was positioned.[86] C described the force used as being hard enough to apply pressure, that it hurt, but that she could still breathe.[87] C said the defendant had his hand on her throat for a few seconds.[88]
[85] T 72.
[86] T 33.
[87] T 34.
[88] T 34.
C said the defendant then grabbed her by the shoulders, positioning one of his hands on each of her shoulders. He turned her around to face the wall opposite the couch.[89] C said the defendant then grabbed her hips with his hands positioned in a way that his thumbs were pointing up towards her back.[90] She said the defendant then used his thumbs to push her forward by pushing the joints of her hips.[91] C described her legs as being directly in front of the ottoman, her hands were on the ottoman and her head was faced down.[92]
[89] T 35; Under cross-examination, C’s first affidavit was put to her in which she stated that after the defendant had removed his hand from around her throat, he moved his hands to her hips and forced her to bend over by manoeuvring her hips. C accepted that this was different to her evidence but said that her best memory now is that the defendant had grabbed her around the shoulders, attributing any change to the passage of time: T 74.
[90] T 35.
[91] T 35, 75.
[92] T 35-6.
C agreed that there would likely have been staff outside the room and that security were never far away, but she did not scream because she froze in the moment.[93]
[93] T 75.
In cross-examination, C described her position in a way that if she walked backwards, it would have been towards the couch.[94]
[94] T 78.
Inserting fingers into the complainant’s vagina (Count 2)
C said that the defendant then got down on his knees behind her[95] and began inserting fingers into her vagina from behind.[96] C said this hurt.[97] She believed he inserted two fingers into her vagina but said that she could not see the defendant.[98]
[95] T 75.
[96] T 36.
[97] T 37.
[98] T 36.
C described feeling scared and frozen in this moment.[99] Neither she nor the defendant said anything.[100]
[99] T 36.
[100] T 36.
C said that the defendant did not have his fingers inserted into her vagina for long as she moved slightly away from him.[101]
[101] T 36.
C said that the defendant remained kneeling behind her. She said that she then felt his face pressed against her backside.[102] C agreed that the defendant was still kneeling down when she felt his face on her backside.[103]
[102] T 37.
[103] T 37.
C said that as soon as she felt this, she threw herself onto the ottoman in front of her. C said that she exclaimed ‘oi!’ forcefully, and directly after that, McCoy pulled the curtain over to do a ‘safety check’.[104]
[104] T 38; 97; Exhibit P2 at 00:21:52.
Safety check
C explained that security, staff or management will randomly open the curtain slightly as a safety precaution to see what is happening in a room.[105]
[105] T 38.
This safety check, described by C, is captured on the CCTV.[106] It shows McCoy opening the curtain slightly and looking inside the room for around two seconds before moving on.
[106] Exhibit P2 at 00:21:48-00:21:50.
C said that when McCoy conducted the safety check, she was sitting on the ottoman[107] and the defendant was still kneeling down behind her.[108]
[107] T 38, 56.
[108] T 81.
McCoy said that this was a routine safety check, she did not hear anyone yell out nor was there anything that caused her to conduct the check, this was just part of her job.[109]
[109] T 102-103.
McCoy said that the first thing she noticed when she looked into the room was that C and the defendant both looked at her when she opened the curtain.[110] McCoy thought this was odd as usually the dancer and patron are focused on each other.[111] McCoy said that she did not see anything that made her think something was wrong. However, she said there was ‘a very strange uncomfortable vibe in the room’.[112]
[110] T 96.
[111] T 104.
[112] T 96.
McCoy said that C was sitting on a chair across from the defendant who was sitting on the couch.[113] In cross-examination, McCoy agreed that had the defendant been kneeling on the floor that would have been very strange for her and she ‘probably would have told him to take a seat’.[114] McCoy agreed that if the defendant had been kneeling it was ‘most likely’ something she would have noticed.[115]
[113] T 96-97.
[114] T 103.
[115] T 103.
McCoy said she then went and found the VIP attendant that night and told her to conduct another safety check within the next couple of minutes because she was concerned with the ‘vibe’ that she felt.[116]
[116] T 97.
Leaving the private room
C said that she saw McCoy’s safety check as her way out of the private room.[117] She said that she stood up for a second or two to think about whether she should grab her things but then decided to run out of the room.[118]
[117] T 38.
[118] T 38; Exhibit P2 at 00:21:56-22:07.
When C left the room, she could not see anyone in the upstairs VIP area. She went to see if anyone was at the cash register, but no one was there so she ran to the changeroom.[119]
[119] T 38; Exhibit P2 at 00:22:08.
In cross-examination, after C was shown the CCTV footage, she admitted that she was not running but rather ‘hurried out’, ‘rushed out’ or was ‘speed walking’ out of Room 1.[120] She said that it was not a ‘full sprint’.[121]
[120] T 83-84.
[121] T 84.
C said that when she entered the changeroom she started to cry. C described feeling scared and violated in that moment.[122]
[122] T 39.
Soon after, Kelly, the VIP attendant, walked into the changeroom.[123] C said that she asked Kelly to go and get McCoy.[124]
[123] Exhibit P2 at 00:23:04.
[124] T 39.
The defendant remained in the private room.
First conversation
Shortly after, McCoy entered the changeroom.[125] C said she told McCoy she had to leave the dance because the customer had put his hand on her neck, put fingers inside her and ‘tried to eat [her] out’.[126] C explained this last expression, in the context of the defendant putting his face to her vagina, as her believing that the defendant was going to perform oral sex on her.[127] C said that she was crying while she spoke to McCoy.[128]
[125] Exhibit P2 at 00:23:30.
[126] T 39-40, 86.
[127] T 40.
[128] T 40.
When McCoy went into the changeroom, C was still naked, visibly distraught, crying and very upset.[129]
[129] T 98.
McCoy said that when she entered the changeroom, she asked C if she was okay and asked her what happened. McCoy said that C told her that a patron had pushed her back and gestured to her throat or neck area.[130]
[130] T 97.
C disagreed that when she first spoke with McCoy she only told her that the defendant had pushed her back.[131]
[131] T 87.
McCoy left the changeroom and radioed for the security guard to remove the defendant from the venue.[132]
[132] T 98.
In cross-examination, McCoy agreed that C had not mentioned any sexual assault during this conversation. McCoy explained that if C had made a complaint about a sexual assault she would have reacted differently to the situation. She would have kept the defendant at the premises, asked C if she wanted to press charges and, if she did, would have called the police.[133]
[133] T 104.
After this, McCoy went to speak to the defendant outside Room 1, by which time the defendant was being spoken to by another member of staff and security. McCoy said that she spoke to the defendant and told him that he had touched a dancer inappropriately and that at this point, in her mind, she understood this to be more violent touching and not sexual touching. McCoy never made any allegation to the defendant about sexual assault because at that point in time C had not made such a complaint.[134] The defendant was saying that he did nothing wrong.[135]
[134] T 105.
[135] T 106.
The CCTV footage captures the defendant being spoken to and it is clear that he is being asked to leave the premises.[136] He is remonstrating with those speaking with him and is protesting against what he was being accused of. He was eventually convinced to leave the venue.[137]
[136] Exbibit P2 at 00:24:47-00:31:00.
[137] This is not captured on the CCTV footage as the recorded footage ends at 00:31:00.
Second conversation
C said that McCoy then left the changeroom to collect her clothing that she had left behind in the private room and that when McCoy returned, she ‘pretty much repeated’ what she had already told McCoy.[138] C said that McCoy asked her if she was okay.[139] C agreed that McCoy told her she would get security and have the defendant evicted from the venue.[140]
[138] T 40.
[139] T 49.
[140] T 87.
Once the defendant was removed from the venue, around ‘five or so minutes’ later,[141] McCoy said she returned to the changeroom. McCoy said that C was still very upset and seemed very shocked.[142] She asked C if she was okay again and asked her what happened.[143] C told her that she was in shock. McCoy then asked C if the customer had pushed her back by the neck. McCoy said that C told her words to the effect of ‘yes’ and that he had also inserted his fingers into her.[144]
[141] T 99.
[142] T 98.
[143] T 98.
[144] T 98.
During cross-examination, McCoy said she could not recall whether C told her that the customer had bit her nipple, however, admitted that it did ‘ring a bell’.[145] McCoy did not recall whether C said anything about the customer trying to ‘eat her out’.[146] McCoy said she was trying to act fast in the moment and that she did not retain all the information C mentioned.[147]
[145] T 106.
[146] T 106.
[147] T 106.
C then went directly from the Crazy Horse to the police station.[148]
[148] T 47-48.
Evidence of discreditable conduct on the part of the defendant
This case involves the defendant being present at a well-known adult entertainment venue and paying for back-to-back lap dances with two dancers at the venue. It is accepted that this does not amount to discreditable conduct within the meaning of s 34P of the Evidence Act 1929 (SA).[149]
[149] R v Barnes [2025] SASCA 53.
Insofar as the evidence discloses that, during the lap dance performed by C, the defendant breached the ‘rules’ by touching C, this does amount to discreditable conduct. The relevance of this evidence lays in the necessity to place into context the conduct or behaviour that forms the basis of each count. This evidence cannot be used to suggest that the defendant, by engaging in this type of conduct, is the sort of person who is more likely to have committed the conduct that forms the basis of each count, and I direct myself accordingly.[150]
[150] Evidence Act 1929 (SA) s 34R.
The evidence of the defendant standing up after he is alleged to have bitten C on the nipple, grabbing C around the throat, before turning her around and bending her over forcefully before inserting his fingers into her vagina is also evidence of discreditable conduct.
However, this evidence is so intrinsically linked to the conduct that forms the basis of Count 2 as to be part of the res gestae of that count such that it would not engage s 34P of the Evidence Act.[151]
[151] R v Heng [2025] SASCA 57.
Insofar as the evidence of the separate conduct forming the basis of each count amounts to discreditable conduct, given the close temporal connection between the alleged conduct, while it is relevant to place the conduct into context, I direct myself that is the only relevance of the evidence and that it is not used to reason that the defendant is the type of person who is more likely to have committed the conduct that forms the basis of each count.[152]
[152] Evidence Act s 34R.
Evidence of consistency of conduct on the part of C
C left the private room shortly after McCoy conducted the safety check and without taking any of her belongings which she left behind in the room. The CCTV footage shows C leaving the room naked and heading straight to the changeroom where she remained.[153]
[153] Exhibit P2 at 00:21:56-00:22:07.
C said she was crying, and McCoy confirms when she first spoke with C in the changeroom, C was still naked, visibly distraught, crying and very upset. McCoy said that when she next spoke with C, during which time C disclosed that she had been sexually assaulted, C was still very upset and seemed very shocked.
The evidence of C leaving the private room naked, without her belongings and of her observed state of distress immediately afterwards, is evidence of conduct or behaviour on C’s part. This is consistent with C’s evidence that she was sexually assaulted by the defendant and may therefore be used to support the credibility of the evidence C gave about being sexually assaulted.[154]
[154] R v Churchill [2025] HCA 11; R v Fergusson [2024] SASCA 63.
In relation to what C disclosed to McCoy about being sexually assaulted, there is a difference between the evidence given by C and McCoy and, importantly, a difference about when it was that C first disclosed being sexually assaulted.
I accept McCoy’s evidence over C’s that while there were two conversations between them, C only disclosed being sexually assaulted during the second conversation.
First, the CCTV footage reveals that when McCoy first entered the changeroom and spoke with C that took only 12 seconds, which is hardly enough time for C to have told McCoy what happened, even if C is accepted that when she told McCoy what happened she was ‘talking very fast’.[155]
[155] T 87.
Secondly, I accept McCoy’s evidence that if she had been told by C that she had been sexually assaulted by the defendant, McCoy’s response would have been very different. McCoy said that she would have confronted the defendant about the allegation and prevented him from leaving and called the police if C wanted to press charges.
The CCTV footage of the interaction between the defendant and McCoy supports McCoy’s evidence that she had only been informed by C that the defendant had grabbed her around the throat, an allegation McCoy said the defendant denied when it was put to him. Moreover, rather than attempt to leave the venue the defendant was arguing the point with McCoy and the other members of staff supporting an inference that he had not been confronted with any sexual allegations involving behaviour on his part against C.
Nevertheless, C’s disclosure to McCoy relating to her being sexually assaulted by the defendant, amounts to evidence of complaint pursuant to s 34M(3) of the Evidence Act.
This evidence is relevant as informing when and how C’s allegations that she was sexually assaulted by the defendant first came to light and as evidence of the degree of consistency of her conduct.[156]
[156] Evidence Act s 34M (4)(a). As the trier of fact, I am also permitted to take into consideration that when McCoy first spoke to C that C did not make an immediate disclosure of being sexually assaulted, only that the defendant had pushed her back and gestured to her throat or neck area: R v Jones [2018] SASCFC 80; R v Van Wyk [2018] SASCFC 138.
C’s disclosure to McCoy is not evidence of the truth of what she stated about the sexual assault.[157]
[157] Evidence Act s 34M (4)(b).
There may be varied reasons why C made her complaint to McCoy (and not, for example, to Kelly) when she did.[158]
[158] Evidence Act s 34M (4)(c).
Yarrow Place examination
The next day C attended Yarrow Place for a forensic medical examination.[159] She was examined by a nurse some 13-14 hours after the incident.[160]
[159] T 48.
[160] T 89.
C said that she noticed she had a couple of small bruises on her arm from the defendant grabbing her the previous night.[161] C conceded that she was unable to say exactly what the bruises were from other than she did not have the bruises before the incident happened.[162]
[161] T 48; Exhibit P3.
[162] T 49.
C said that she urinated before going to Yarrow Place but did not shower.[163]
[163] T 54.
In cross-examination, C said that during her medical examination she mentioned that she bruises very easily.[164] She agreed that the defendant used a lot of pressure when he grabbed her, but she did not end up with any other bruises.[165]
[164] T 88.
[165] T 88.
Registered nurse Annette Brown conducted the forensic examination of C.[166]
[166] T 114.
She conducted an external examination of C’s vagina and it appeared normal.[167] She did not conduct an internal examination of C’s vagina.[168]
[167] T 114.
[168] T 115.
She took a number of forensic swabs and specimens from C and collected the clothing C said she was wearing on the night.[169]
[169] T 124.
A buccal swab was taken from C’s mouth and swabs taken from the mons pubis, labia, low vaginal area, right breast, neck and abdomen.[170]
[170] T 124.
The single swab of C’s right breast was taken from the nipple, areolae and around the breast generally. Separate swabs were not taken from those individual areas of the breast. The left breast was not swabbed.[171]
[171] T 125.
Nurse Brown noticed two very small bruises that were next to each other on the right forearm near the elbow that were yellow in appearance. She said that the colour of the bruises suggested they were likely over 18 hours old.[172] Photographs were taken of the bruises.[173]
[172] T 122-123.
[173] Exhibit P3.
It is difficult to place any weight on the evidence of these two bruises in support of C’s allegations. While C claimed she did not have the bruises before the night of the alleged incident, she did not assert that the defendant grabbed her forcefully on the arms to leave bruising during either of the alleged conduct involved in the charged offences. If C bruised easily, as she asserted in her evidence, then it is surprising there were no other bruises detected on her body particularly around the throat and especially around the waist where she said she was held tightly when forced to bend over by the defendant.
Further, the bruises are likely to be older than the alleged incident given their coloration and the evidence of Nurse Brown.[174]
[174] T 121-122.
I make the observation that the bruises are very small and in an area on the arm where it would be difficult for C to have detected them. In my view of the evidence, I cannot exclude as a reasonable possibility that the bruises are not connected to the alleged offending conduct.
Nurse Brown said that she asked C if she had consumed alcohol on the night of the alleged offending and was told that she had not. In her evidence C denied that she told the nurse she did not drink any alcohol on the night of the incident.[175]
[175] T 89.
The complainant’s mental health and personal history
In cross-examination, C said she has been diagnosed with Borderline Personality Disorder.[176] She explained that some of the symptoms she suffers include with personal relationships, severe co-dependency and suicidal ideations.[177]
[176] T 89-90.
[177] T 90.
C also described experiencing dissociative episodes where she ‘zones out’ in high stress situations and her brain will switch off with stress.[178] C said that she remembers what happens after these episodes.[179] C admitted that around two years before the alleged offending, she was admitted to the Modbury Hospital as a result of a self-harm incident.[180] She explained that she had a lot going on and was on the wrong medication.[181] Prior to this, she had been told that there was a possibility that she had Borderline Personality Disorder but was not formally diagnosed until after her admission into hospital.[182]
[178] T 90.
[179] T 90.
[180] T 90.
[181] T 90.
[182] T 91.
C agreed that police asked her to provide details of any doctors or other professionals that she may have sought treatment from for her mental health. She admitted she was asked and refused to provide them with that information as she did not consider it relevant to what happened on the night.[183]
[183] T 91-92.
I have not placed any weight on this evidence in my consideration of proof of the charges. There is nothing in the evidence that raises even a possibility that C was experiencing a dissociative episode or that her disorder affected either her reliability or credibility as a witness.
DNA evidence
The evidence samples taken from C and the defendant were analysed for the presence of DNA and then compared to the known DNA profiles of C and the defendant.
Mr Luke Volgin, a forensic scientist employed at Forensic Science South Australia, gave evidence of the results of comparisons made between DNA obtained from the various evidence samples taken from C and the defendant with the known DNA profiles of C and the defendant.
A chart was produced and tendered in evidence that sets out the results of the comparisons and provides a statistical weighting.[184]
[184] Exhibit P4.
A summary of this interpretation, including Volgin’s description of each statistical weighting, has been included below:
Sample description DNA profile description Person Hypothesis/ interpretation Statistical weighting Descriptive weighting SAP2400071060PE0009: Forensic Evidence Collection Kit (relating to TAYLOR) (SE1597)
Examined at FSSA. The kit contained lip swabs, left hand swabs, left fingernail swabs, right hand swabs and right fingernail swabs.
2.03-01 Swabs - left fingernails Mixed DNA profile - three contributors including TAYLOR C H1: C is a contributor
H2: C is not a contributor
750 000
(in favour of H1)Very strong support[185] 2.05-01 Swabs - right fingernails Mixed DNA profile - three contributors including TAYLOR C H1: C is a contributor
H2: C is not a contributor
540
(in favour of H2)Strong support[186] SAP2400071060PE0011: Forensic Evidence Collection Kit (relating to C) (VE3365)
Examined at FSSA. The kit contained a low vaginal swab, labial swab, mons swab, left abdomen swabs, bilateral neck swabs and right breast swabs. Sperm were not observed on microscope slides prepared from the low vaginal swab and labial swab. The right breast swabs tested positive to amylase (present at high levels in saliva). The left abdomen swabs tested negative to amylase. Y-STR analysis (targeting male DNA) was performed on the mons swabs.
1.02-01 Swab - low vaginal Not submitted for DNA profiling. Male DNA is not present, or the concentration is too low to detect. 1.03-01 Swab - vaginal Not submitted for DNA profiling. Male DNA is not present, or the concentration is too low to detect. 1.04-01 Swabs - mons
(Y-STR analysis)Limited profile information. Not analysed. 1.05-01 Swabs - left abdomen Mixed DNA profile - four contributors including C TAYLOR H1: TAYLOR is a contributor
H2: TAYLOR is not a contributor
> 100 billion
(in favour of H1)Extremely strong support[187] 1.06-01 Swabs - bilateral neck Mixed DNA profile – three contributors including C TAYLOR H1: TAYLOR is a contributor
H2: TAYLOR is not a contributor
110
(in favour of H1)Strong support[188] 1.07-01 Swabs - right breast Mixed DNA profile – three contributors including C TAYLOR H1: TAYLOR is a contributor
H2: TAYLOR is not a contributor
> 100 billion
(in favour of H1)Extremely strong support[189] [185] T 135.13-135.15.
[186] T 135.27-135.28.
[187] T 139.31-139.33.
[188] T 140.15-140.16.
[189] T 141.2-141.3.
The results provide limited evidential support for C’s allegations relating to the charged conduct. C was naked while performing her private dance in a very small room. She was naked while straddling the defendant’s lap and performing her dance. There is no dispute that the defendant touched C with his hands on various parts of her body, including her breasts. C accepted that she possibly pressed her breasts in the defendant’s face as part of her dance.[190]
[190] T 55.
Given the close personal nature of the private dance, as described by C, there is likely to be contact DNA between the defendant and C as well as the likelihood of secondary transfer of DNA between them.[191]
[191] T 130, 142.
The labial and low vaginal swabs were not submitted for DNA profiling, either because there was no male DNA present, or the concentration was too low to detect. The mons swab was not analysed for male DNA because of limited profile information.[192]
[192] T 137.
The right breast swab tested positive to amylase, an enzyme present in high levels in saliva. Amylase is also present in lower concentrations in other bodily fluids such as breast milk or faeces.[193]
[193] T 136, 145.
The test that was conducted was an RSID (Rapid Stain Identification) saliva test, a presumptive test similar to a pregnancy or Covid-19 test.[194]
[194] T 137
Volgin said that the positive RSID test appeared at the outer time limit suggesting either that there was only a very small amount of saliva present, or it might be the product of a false positive test.[195]
[195] T 146.
As there were three contributors to the mixed DNA profile obtained from the swab taken from C’s right breast, Volgin said that it could not be determined which individual was the source of the amylase.[196] Further, as saliva provides a rich source of DNA it can be easily deposited through secondary transfer.[197]
[196] T 144.
[197] T 144.
Volgin said that if C had rubbed her breasts on the defendant’s face and if there was contact between the skin of the breast and the defendant’s mouth, he would expect there to be a deposit of saliva on the breast.[198]
[198] T 144.
While the DNA results of the swab taken from C’s right breast provides some support for her evidence that the defendant had bitten her nipple, the weight to be attached to this evidence is clearly limited.
The defendant’s record of interview
The defendant was interviewed by police at 6:35 am on 14 March 2024.[199]
[199] Exhibit P5.
During the interview, the defendant:
·Denied the allegations that during the private dance he became quite violent, that he had bitten C on the nipple and then placed his fingers inside her vagina;
·Said he had consumed approximately five or six beers during the course of the night across different venues, including at the Crazy Horse;
·Admitted paying for a ‘lap dance’ with C;
·Said C told him she was new at the venue;
·Admitted that C was performing the dance on his lap;
·Stated that when the lap dance finished C left the room;
·When C left the room, he remained in the room waiting for her to return;
·Believed that the dance was ‘cut a little bit short’, and was having words with the bouncers about that when they approached him in the room;
·Specifically denied that he had bitten C on her nipple; that he grabbed her neck or that he inserted his fingers inside her vagina;
·Admitted that during the course of the lap dance he would have touched C, and he backed off when she told him ‘no touching’;
·Admitted that C’s breasts may have come into contact with his face around his mouth and lips during the course of her performing the lap dance while straddling him;
·Admitted that he was asked to leave the venue by the bouncers; and
·Admitted that he was upset because the lap dance had ended early and this would be captured on the CCTV with him and the bouncers insulting or ‘slinging off’ at each other over it.
Defendant did not give evidence
The defendant elected not to give or call evidence. No adverse inference can be drawn against the defendant for this decision.
Exhibit P2 – CCTV footage
Description Time stamp C and defendant come upstairs 00:02:21 Defendant pays for private dance at cash register 00:02:49 C and defendant enter Room 1 00:03:28 McCoy conducts safety check 00:21:48 – 00:21:51 C leaves Room 1 00:21:56 C enters changeroom 00:22:07 Kelly enters changeroom 00:23:04 Kelly exits changeroom to get McCoy 00:23:17 McCoy enters changeroom for the first time 00:23:30 McCoy exits changeroom 00:23:42 McCoy radios for security 00:23:47 Security opens curtain to Room 1[200] 00:23:59 Kelly and another dancer enter changeroom 00:24:21 McCoy enters Room 1 to get C’s items[201] 00:24:25 McCoy exits Room 1 and remains outside with security guard 00:24:33 Defendant exits Room 1[202] 00:24:47 Kelly exits changeroom 00:25:05 McCoy leaves security guard and defendant 00:25:12 McCoy hands C’s items to employee at cash register, Michaeli, and heads downstairs 00:25:15 Michaeli hands C’s items to Kelly 00:25:16 Kelly enters changeroom with C’s items 00:25:22 Kelly exits changeroom 00:25:34 Second security guard comes upstairs and joins first security guard and defendant[203] 00:25:57 Kelly enters changeroom 00:27:12 Kelly exits changeroom and goes downstairs 00:28:40 McCoy comes upstairs and rejoins group speaking to defendant 00:29:30 Dancer exits changeroom 00:29:37 CCTV footage ends[204] 00:31:00 [200] McCoy is with the security guard at this stage.
[201] It appears that McCoy removes C’s items from the left-hand corner where the chair is said to be positioned in the private room. However, it is noted that the chair is not visible in the CCTV footage.
[202] The defendant remains standing outside Room 1 speaking to the security guard and McCoy.
[203] It appears they are asking the defendant to leave the premises.
[204] The defendant remains standing outside Room 1 speaking to McCoy and the two security guards.
Consideration
Proof beyond a reasonable doubt is an exacting standard and necessarily so, because of the consequences that follow a conviction for a serious criminal offence.
For the prosecution to prove either or both charges against the defendant, the court must accept the evidence given by C beyond a reasonable doubt, while also excluding the defendant’s denials in his police interview as a reasonable possibility.
The focus of the counsel’s addresses was naturally on the credibility and reliability of C’s evidence and whether the defendant’s denials could be rejected as being reasonably possibly true.
While the conduct that forms the basis of each count is alleged to have occurred within a span of about 30 seconds, each count must still be considered separately and only on the evidence that relates to each count, even though there is much in common between the counts.
Bruises on the forearm
The defence submitted that C’s dogged attribution of the two small bruises on her forearm to being caused by the defendant is an example of C attempting to advance a case against the defendant, rather that C giving honest evidence.[205] The bruises could have predated the alleged offending. There were no other bruises on any other part of C’s body. In the circumstances C described, of the defendant grabbing other parts of her body and C’s claim that she bruises easily, it would have been expected for C to have other bruises on her body. C said she did not have the bruises on her forearm begore the incident.[206] C said she thought the bruises were ‘most likely’ caused during the private dance when the defendant started grabbing parts of her body.[207] C was simply unwilling to countenance the possibility that the bruises were pre-exiting ones. It was submitted that attributing these bruises to the defendant demonstrates C attempting to advance a case against the defendant, particularly in circumstances where the bruises on her forearm formed no part of her allegations of being sexually assaulted by the defendant.
Alcohol consumption
[205] T 179-180.
[206] T 49.
[207] T 49.
It was also submitted that C’s denial that she told the forensic nurse she did not consume any alcohol on the night of the incident, affects her credibility.[208] This is because in her own evidence C admitted drinking three Vodka Red Bulls while engaging with the defendant and his friend before the private dance.[209]
Running out of the private room
[208] T 89, 119.
[209] T 23.
Similarly, it was submitted that C’s description of her ‘running’ out of the room was contradicted by the CCTV footage and C’s attempts to describe what the footage disclosed was disingenuous affects her credibility. In cross-examination, after C was shown the CCTV footage, she admitted she was not running but rather ‘hurried out’, rushed out’ or was ‘speed walking’.[210] I accept that C was not running but used the word to describe leaving the room in a hurried state.
Remaining in the private room
[210] T 83-84.
The defence also submitted that C’s credibility was affected by C’s implausible account of her cautions in the private room. In particular, C’s actions in continuing to straddle the defendant and removing her underwear after she had to warn the defendant to stop touching her and failing to walk out of the room, or at least call out, when she knew there would likely be someone outside. I do not accept that this impacts C’s credibility. C was a new dancer at the venue, and she explained that she had, up until that point, never had to walk out during a dance before. I accept C’s evidence that she gave the defendant the benefit of the doubt when he apologised and that she was hoping the situation she found herself in would diffuse through the various tactics she adopted.
I have taken these matters into consideration. In my assessment they do not, either individually or in combination, materially impact on C’s credibility. Overall, I found C to be a satisfactory witness.
However, as will become apparent, there were a number of issues that affected her reliability and the plausibility of the conduct occurring as described in her evidence, particularly in relation to Count 2.
Furnishings in the private room
Ordinarily, matters relating to the furnishings in a room would have little impact upon an assessment of what occurred in that room. However, given the extremely small dimensions of this room, what it contained becomes important to a consideration of the plausibility of the events described by C and, in this way, affects her credibility.
C was adamant that the private room she entered with the defendant contained an ottoman rather than a chair. She was also clear about there being a table inside the room immediately to the right of the entrance where she said she placed her shoes and clothing as she removed them during the dance.
McCoy’s evidence was that the room contained a chair positioned where it is depicted in Exhibit P1. The body worn camera of the police who attended the venue at 1:37 am shows the room as containing a chair[211] that is identical to and is in the same position as the chair depicted in Exbibit P1.
[211] MFI-D1.
Having considered all of the evidence, I do not accept C’s evidence that there was an ottoman and not a chair in the room. C’s evidence about the room’s furnishings is contradicted by the evidence given by McCoy and importantly by what is recorded on the police body worn camera. The importance of this difference impacts on the plausibility of her evidence as to where she and the defendant were positioned when he is alleged to have penetrated her vagina.
The chair, as depicted in Exhibit P1 and as recorded on the body worn camera, is larger than the ottoman C described in her evidence and, as such, the chair would have occupied more space in the room. The area between the chair and the couch upon which the defendant was seated would be very confined.
The area between the chair and the couch is clearly depicted in Exhibit D2. I accept that a reasonable estimate of the distance between the front of the chair and the couch would be half a metre. The distance is likely to have been greater if the room contained an ottoman of the dimensions described by C in her evidence.
Additionally, the free space in the room would also be reduced if, as C said in evidence, the room contained a table. C said the table was positioned immediately to the right as one entered the room. C said this is where she placed her shoes and clothing on. C described the table as having a glass top and was square in shape.[212] She described it as ‘pretty small … enough for people to put their drinks on’.[213] C said that the table was ‘around the same size as the seat (ottoman), if not slightly smaller’.[214]
[212] T 28.
[213] T 28.
[214] T 28.
I have reservations about C’s reliability relating to there being a table in the room and whether she placed her shoes and belongings on it as she claimed. The CCTV footage shows McCoy entering the room after C had left it to retrieve C’s shoes and clothing.[215] McCoy is clearly moving towards the area where the chair is positioned as depicted in Exhibit D2 and not where C said the table was positioned immediately to the right of the room as one enters it. I am satisfied on the evidence that C’s shoes and clothes were not on the table as C said they were but were on the chair.
Sequence of events in the private room
[215] Exhibit P2 at 00:24:25.
C’s description of the events that happened after the defendant is alleged to have bitten her nipple – the defendant standing up and grabbing C around the throat, turning C around by the shoulders and forcing her over onto the ottoman –changed during the course of C’s examination and cross-examination.
Initially, C said she was standing in the small space between the ottoman and the couch facing the defendant when he stood up from the couch and grabbed her around the throat. C said she was taken hold of by the defendant who grabbed her around the shoulders and turned her around so that she was facing what she described as the back wall, that is the wall directly opposite the couch.
The defence pointed to an inconsistency between C’s evidence of being taken hold of by the shoulders and what is contained in her affidavit where she stated that the defendant after removing his hand from her throat, moved his hands to her hips forcing her to bend over the ottoman. I acknowledge this inconsistency. C said in evidence that this is what she stated in her affidavit, however, her best memory when giving evidence was that she had been grabbed hold of by the shoulders and turned around. C attributed the change in account to the passage of time. I do not consider such an inconsistency impacts upon my overall assessment of C’s evidence. C remained consistent about being turned around by the defendant even if her memory of the mechanism differed.
C said she was then bent over the ottoman by the defendant using his thumbs to manoeuvre her hips forwards causing her to place her hands on the ottoman. C said the defendant remained behind her. She said that she was still bent over the ottoman and the defendant was kneeling behind her when he inserted his fingers inside of her vagina.
The area C said that this occurred in is extremely confined, as the photographs readily reveal. Whilst I acknowledge the limitation of using photographs in assessing the size of a room, with reference to the furnishings it is clear that Room 1 is an incredibly small and confined space. It is difficult to envisage there being enough room for C to have been bent over the chair or ottoman, as she described, and for the defendant to be kneeling behind her in the position C claimed he was in.
C’s evidence then changed and she said she was dancing against the wall alongside the ottoman close to the curtain, when the defendant grabbed her around the throat and turned her around. C said she was then facing the wall with the mirror when she was bent over the ottoman. On this version, if the defendant was kneeling behind her when he inserted his fingers inside her vagina, he would have had his back to and been close to the curtain.
Ultimately, C’s evidence reverted to her being bent over the ottoman facing the back wall with the defendant kneeling behind her positioned in the gap between the couch and the chair or ottoman. This is the gap that C acknowledged would have been around half a metre wide.
I acknowledge that C’s change in position demonstrates a degree of unreliability, but this has not, of itself, caused me to doubt the credibility of her description of the defendant penetrating her vagina with his fingers.
What I have had difficulty in determining is the likelihood of the act occurring in such a confined space as C described.
C’s evidence was clear that she uttered ‘oi’ forcefully when she threw herself onto the ottoman as the defendant penetrated her vagina. C said she could see that the defendant was still kneeling on the floor when this happened. C said it was at this moment that McCoy conducted the safety check.
McCoy said when she conducted the safety check and looked into the room C was sitting on the chair and the defendant was sitting on the couch. McCoy’s evidence contradicts what C said about the defendant’s kneeling position at that time, either between the chair and the couch on C’s first version or between the chair and the curtain on the other version. There can be little doubt that if McCoy had observed the defendant kneeling behind C when she conducted the safety check that she would have acted upon that.
This has caused some doubt in my mind as to the defendant’s position at the critical moment when McCoy conducted her safety check. While I do not find that C has lied about this, I cannot exclude the defence submission that there exists a reasonable possibility that the defendant did not have sufficient time, and without any warning that a safety check was about to happen, to manoeuvre himself from the kneeling position C has him in, to the seated position on the couch that McCoy observed.
Despite the evidence of complaint, distress and C walking out of the room naked, each of which supports C’s credibility, I find myself left with a reasonable doubt about the conduct that forms the basis of Count 2. I cannot reconcile C’s evidence with the objective evidence relating to the furnishings in the room and McCoy’s observations during the safety check. Further, I cannot exclude the defendant’s denials as a reasonable possibility. I also acknowledge the force of the defence submission that the defendant’s own conduct by remaining in the room waiting for C to return to finish the lap dance, his protestations about having behaved in any improper manner toward C and refusing to leave the venue when confronted by security and McCoy are inconsistent with the sexual allegations made against him by C.
Presence of amylase
In relation to Count 1, the evidence that the defendant bit C on the right nipple is supported by the presence of amylase on the swab. However, the evidence of Volgin and the actions involved in the lap dance itself, where C admitted of the possibility that her breasts made contact with the defendant’s face during the lap dance, and the defendant’s similar concessions in his police interview, means that the weight to be attached to this evidence is significantly diminished, as previously discussed when summarising this evidence.
Complaint evidence
I have already discussed the difference between the evidence of C and McCoy in relation to what C disclosed and at what point in the night.
It was C’s evidence that she told McCoy everything the first time McCoy entered the changeroom and that she repeated it again when McCoy returned later.
I find that C is mistaken about this. I do not consider that this has any material effect on C’s reliability, nor do I consider it impacts her credibility. It is perfectly understandable that in C’s state of distress and shock that she may have been mistaken about what she told McCoy the first time McCoy entered the changeroom.
I accept McCoy’s evidence that when she first spoke with C there was no disclosure or complaint of sexual impropriety by the defendant. The only matter C told McCoy was that the defendant had pushed her back and in saying this C gestured to her throat or neck.
It was only during McCoy’s second conversation with C, at a time after the defendant had left the venue, that C mentioned being sexually assaulted. The defence has submitted that in C’s recount of this conversation with McCoy, C did not say that the defendant bit her nipple, and this demonstrates a degree of inconsistency on the part of C in the complaint that was made. While McCoy’s recollection of C saying something about the patron having bitten her nipple was elicited during cross-examination by McCoy saying that ‘it rings a bell’, this is not quite the same as McCoy having a solid memory of that being said by C and the topic was not the subject of any re-examination. Further, McCoy acknowledged that in her affidavit, when recounting what C said to her, she did not mention C saying that the patron had bitten her nipple.
I consider the evidence does not permit me to make a positive finding that C did in fact make a disclosure to McCoy that the defendant had bitten her nipple.
Nevertheless, viewed globally, the evidence of C’s complaint, distress and walking out of the room without taking her clothes are each consistent with the occurrence of the conduct she has alleged.
There remains, however, the difficulty that I expressed earlier that I find myself unable to exclude the defendant’s denials as a reasonable possibility and that the defendant’s conduct after C left the room in, first, remaining in the room seemingly waiting for C to return, secondly, denying any impropriety against C when spoken to, and, finally, protesting against the request that he leave the venue, are each inconsistent with him behaving in the manner described by C, insofar as it relates to the allegations the subject of the charged offences.
I am therefore left with a reasonable doubt as to the conduct the subject of Count 1.
I previously stated that proof beyond a reasonable doubt is a high standard. It is not sufficient for the court to decide the case on what probably happened during the lap dance or to hold suspicions, even strong ones, about that.
The verdicts should not be seen as a finding that C has deliberately lied in her evidence or that the defendant has positively told the truth. This is one of those cases where, on an assessment of the whole of the evidence, it is not possible to be satisfied beyond a reasonable doubt that the charges have been proved.
Verdicts
I find the defendant not guilty of each count.
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