R v Tennant - [2021] SADC 95

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TENNANT
Criminal Trial by Judge Alone
[2021] SADC 95
Reasons for the Verdicts of her Honour Judge Davison
13 August 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
The accused is charged with one count of aggravated assault and two counts of rape.
The complainant and the accused met in October 2018. They commenced a sexual relationship shortly thereafter. On 29 June 2018, the accused and the complainant struggled over a mobile phone and he punched her in the face. He then refused to allow her to leave his home. The following day, he carried her to the bedroom, physically restrained her and performed two acts of sexual intercourse upon her without her consent. The issue in respect of the rape charges was whether the prosecution had proved that he knew or was recklessly indifferent as to the lack of consent by the complainant.
Verdict
Count 1 - Guilty.
Count 2 - Guilty.
Count 3 - Guilty.
Juries Act 1927 (SA) s 7; Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(g), s 20(3), s 48(1); Evidence Act 1929 (SA) s 34M, referred to.
R v J, JA (2009) 105 SASR 563, applied.

R v TENNANT
[2021] SADC 95

Criminal

The complainant GSD and the accused met in October 2018 at a Halloween party and thereafter, commenced a sexual relationship. They had lived together for a short period of time. At the time of the alleged offending, GSD was living with her father but staying at the accused’s premises. It is alleged that on 29 June 2019, the accused assaulted her by punching her to the left side of her face using his right fist. The following day, it is alleged, he carried her into the bedroom and against her repeated protests, forcibly removed her clothes, performed cunnilingus upon her and then had penile-vaginal sexual intercourse with her.
The accused did not give evidence or call any evidence.
The accused elected for trial by judge alone.[1] The trial proceeded without a jury.
[1] Juries Act 1927 (SA) s 7.
The charges
First Count
Statement of Offence
Aggravated Assault. (Section 20(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Christopher Michael Tennant on the 29th day of June 2019 at Davoren Park, assaulted [GSD].
It is further alleged that Christopher Michael Tennant committed the offence knowing that [GSD] was a person with whom he was, or was formerly, in a relationship.
Second Count
Statement of Offence
Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Christopher Michael Tennant on the 30th of day of June 2019 at Davoren Park, engaged or continued to engage in sexual intercourse with [GSD] by performing an act of cunnilingus upon her, without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was not so consenting.
Third Count
Statement of Offence
Rape. (Ibid)
Particulars of Offence
Christopher Michael Tennant on the 30th of day of June 2019 at Davoren Park, engaged or continued to engage in sexual intercourse with [GSD] by inserting his penis into her vagina, without her consent to engaging in sexual intercourse, knowing or being recklessly indifferent to the fact she was not so consenting.
Elements of the offences
Each element of an offence must be proved beyond reasonable doubt by the prosecution in order to prove an offence.
The elements of the offence of aggravated assault (count 1) as they relate to the facts of this case are:
1.The accused applied force to GSD by punching her to the face.
2.The application of force was deliberate and voluntary, that is, it was intended by the accused.
3.The application of force was without the consent of GSD.
4.The application of force was unlawful.
The aggravating feature is established if the prosecution proves beyond reasonable doubt that the accused committed the offence knowing that GSD was a person with whom he was, or was formerly, in a relationship.[2] The prosecution allege that the accused and the complainant were in an intimate personal relationship in which their lives were interrelated and the actions of one affected the other. The defence took no issue with this element.
[2] Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(g).
The elements of the offence of rape (counts 2 and 3) as they relate to the facts of this case are:
1.The accused had sexual intercourse with GSD. ‘Sexual intercourse’ includes any activity consisting of or involving penetration of a person’s vagina by any part of the body of another person (count 3) or an act of cunnilingus (count 2).[3]
2.The accused had sexual intercourse with GSD without her consent. A person gives consent if they agree freely and voluntarily to engage in the sexual activity.[4]
3.The accused either knew that GSD was not consenting, or, was recklessly indifferent to GSD’s lack of consent. The accused is recklessly indifferent to the fact that another person does not consent to sexual intercourse if:
a.He is aware of the possibility that the complainant might not be consenting to the act but decides to proceed regardless of that possibility; or
b.He is aware of the possibility that the complainant might not be consenting to the act but fails to take reasonable steps to ascertain whether the other person does, in fact, consent before deciding to proceed; or
c.He does not give any thought as to whether or not the complainant is consenting to the act before deciding to proceed.
[3] Ibid s 5.
[4] Ibid s 46(2).
It is this element of counts 2 and 3 that are in dispute.
General directions
I give myself the following directions.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused is presumed innocent of the charges unless and until his guilt has been proved beyond reasonable doubt.
The standard of proof is beyond reasonable doubt. The accused cannot be found guilty of an offence unless the evidence which I accept satisfies me of his guilt beyond reasonable doubt. In these reasons, if I use the words ‘proved’, ‘established’, or ‘satisfied’, in each case I mean to an extent which excludes a reasonable doubt.
I must assess each witness as to their truthfulness and reliability. I must determine whether I can rely upon the evidence given by each witness. I can reject or accept all or part of a witness’ evidence.
I must bring an open and unprejudiced mind in this case. This is particularly important in this case where the subject matter of the charges is so confronting. I must make my decision without sympathy or prejudice and not be influenced by public opinion in relation to this matter.
The evidence of GSD was given via closed-circuit television, in a closed court and with a court companion present. Her evidence was also recorded. I remind myself that no adverse inference can be drawn against the accused nor should these special arrangements influence the weight that I give to the evidence of GSD.
The accused is charged with three separate counts. Each of these counts must be considered separately and only in relation to the evidence that is admissible in respect of each.
The accused did not give evidence. That was his right. I cannot, and do not, draw any adverse inference against him or the case he presents for declining to give evidence.
The prosecution called expert witnesses being Ms Markham, Dr Hearnden and Constable Hill. It is for me to determine the significance and weight to give the evidence. I must not disregard unchallenged evidence capriciously. I should take into account the relevant qualifications, the impartiality or otherwise of the witness and the extent to which their evidence accords with other evidence that I accept.
The evidence
The primary prosecution witness was GSD. She gave evidence as follows. She is now 47 years old. She gave evidence that she met the accused at a Halloween party and a couple of weeks later, commenced a sexual relationship with him. She moved into his house in March 2019. During that time, neither she nor the accused were working. They spent the majority of their time together. They cooked and ate their meals together and one assisted the other in relation to day-to-day matters. She moved out of his house on 18 May 2019. She recalls this date as it was the date of the Federal Election.[5] She went to live at her father’s house but maintained a relationship with the accused and regularly stayed at his house.
[5] T222.
She was at the accused’s house on Friday, 28 June 2019. That afternoon, they went to the Elizabeth South Shopping Centre and then to the Elizabeth City Centre. They were waiting for the bus to come home when an unknown female approached them and started kicking and hitting the accused. His response was to walk away. The complainant followed him.[6] Having done that, the accused started to badger the complainant as to why she had not protected him in this attack. He maintained this rage even after they returned home. The complainant responded to him saying, ‘Well, what did you want me to do? Like, I’m not the type to get up and hit somebody. Like, what did you expect me to do?’.[7]
[6] T67.
[7] T69.
Eventually, she decided to leave his house and return to her father’s home. She took her belongings and went to the bus stop. At the bus stop, the accused appeared, grabbed her bags and walked off with them. She then saw him tipping her belongings onto the road. At that stage, she thought she had to go back with the accused and was particularly concerned about some keys belonging to her father. She gave evidence that she then walked back towards the accused, picked her belongings off the ground assisted by the accused and together they put them in the bags. She returned to his home.
GSD gave evidence that even after they returned to his home, the accused was still ‘going on’ about the girl at the bus stop whilst they were trying to sort out her belongings that had been damaged in the altercation. The complainant stayed at the accused’s house that night. They drank cider and smoked cannabis. Eventually they both went to bed. The complainant was wearing grey tracksuit pants and a blue cotton zip-up track top. They did not have sexual intercourse that night.
The following morning the accused was sitting in his recliner chair in the kitchen. She gave evidence that he started to have a go at her again about several different things including the girl at the bus stop. While he did this, she sat in the chair listening to him. She then got up, put on her sneakers and walked back into the kitchen and said to the accused, ‘I think I might go home and let you cool down for a bit’.[8]
[8] T74.
He responded by telling her that she was not going home. He got out of his chair, asked for her phone and started patting her down. He found her phone in her jacket pocket, took it out and smashed it on the table. While he was trying to get it from her, she was trying to stop him. He pushed her away and into the sink.
He then grabbed her with both hands on the front of her jacket and lifted her off the ground. She felt the pressure of her clothes under her arms and felt her feet leave the floor completely. He then body-slammed her onto the floorboards. She landed on her back. She suffered immediate pain. She rolled to her left‑side and felt her back. She said it hurt so much she was not sure if it was bleeding. When she was on her side, the accused knelt down, ripped off her sneakers and then pushed her back down. He tried to pin her down using his shins and knees on her upper body. His knee went into her throat, for what felt like a couple of seconds. He then placed his whole body on top of her and pinned her down. Whilst he was doing this, he was saying, ‘Come on, you want to fight? Let’s fight’.[9] She was resisting by thrashing her body around as much as she could. At one point, she pulled his hair and he responded by grabbing her hair saying, ‘So you want to pull hair now?’ and they just kept pulling each other’s hair, she said.[10]
[9] T80.
[10] Ibid.
GSD gave evidence that when she was first laying on the ground, the accused put his forearm over her face and pushed her face towards the left. She tried to defend herself by kneeing him in the ‘balls’, and he then punched her with his right fist hitting the left side of her face near her eye. She was so sore that she physically could not fight him any longer and gave up. He was still on top of her at that stage. He still had her face pinned down to the floor with his forearm. After they stopped fighting, he said, ‘So, you had enough now, dickhead?’.[11] He then grabbed her hand, pulled her up off the ground and shoved her into a chair.
[11] T81.
GSD gave evidence that although the accused had had what she called ‘baby tantrums’ in the past, he had never been physically violent towards her before. After this incident, she said she was in a ‘dream world’ of her own, trying to think how she could get out of there as the accused had told her that he was not going to let her go home.
She said they spent the rest of the day not really talking to each other. She went to and from the bedroom and the kitchen. She gave evidence that she was constantly at the bedroom window trying to see if she could alert someone who was walking past the house. GSD gave evidence that she knew she could not get out of the house as the doors were locked and the windows had screws in them. She made a couple of attempts to try to scream out to neighbours but was unsuccessful. That night, she waited for the accused to go to sleep and then looked around the house for the keys. She was worried that he would wake up. She had no luck finding the keys and eventually, lay down on the bed trying to work out how to get out of the house. She fell asleep. She remained in the same clothes she had been wearing that day.
When she woke up on Sunday morning, she was in a lot of pain with a swollen cheek and eye and a very sore back. Her whole body was aching. She went to the kitchen and sat in her usual chair. The accused was sitting in his usual recliner chair.
GSD gave evidence that at this time, she had her period. She said she did not have sexual intercourse with the accused when she had her period.
GSD gave evidence that the accused got up out of his recliner chair and walked over to her and lifted her, putting his left arm under her knees and his right arm around her shoulder, and carried her to the bedroom. When he picked her up, she said, ‘What are you doing?’ and he replied, ‘We’re going to make love’.[12] She said, ‘No, we’re not’ and tried to spring out of his arms but could not get out because he was gripping her too tight. He then threw her onto the bed and she landed on her back, with her head on the pillow and her feet towards the end of the bed. He jumped on top of her and grabbed her hands and twisted them. He crossed them over the top of her head. She said, ‘Let’s go for a walk’ and he said, ‘What? No, we’re going to make love’. She said, ‘No, we’re not’.[13] At that time, he was lying on top of her and holding her hands with his arms. She was still fully clothed. She was screaming at him to get off her and saying, ‘I’ve got my period’.[14] GSD gave evidence that the accused would not get off her so she started to get ‘really mad’ and tried to knee him in the ‘balls’. He said, ‘I told you not to hit me’ and he punched her again near the same place on her face as the day before but just a little bit lower.
[12] T85.
[13] T86.
[14] Ibid.
GSD gave evidence that she tried to touch her face and with that, the accused ripped off her pants, knickers, pad, and socks in one go. He then ripped her top off so that she was left just wearing her bra. He was saying, ‘You love it. You love it, babe. You love it’, to which she was constantly telling him to get off and screaming at him. At the same time, he was restraining her by twisting her arms and hands, and pushing her face down into the bed whilst constantly saying, ‘You love it babe’.[15]
[15] T89.
GSD gave evidence that the accused then changed his position and put his knee into her chest whilst holding her hand and arm underneath her back, and twisting her hand with his left hand. He then licked her vaginal area, turned back around and licked her left breast as he came up to her face. He tried to kiss her and she moved her head from side to side. He then used his forearm to push her face, with her left cheek touching the bed and gave her a love bite. He then said, ‘Now everyone knows we’ve made love, babe’.[16]
[16] Ibid.
He then started saying, ‘Put it in’. She was yelling at him, ‘No, it’s disgusting’ and he kept saying, ‘Put it in. Put it in, babe’. She said no several times before she stopped answering him. He then grabbed her right arm and twisted it further back and rammed his penis into her vagina. He ejaculated in her vagina, pulled out his penis and got off her.
He said, ‘Go have a shower, you feral’. She sat up and felt a ‘gush’ of fluid coming out of her vagina. The fluid went onto the white quilt. She was too scared to move but he insisted that she have a shower. She then picked up her clothes and ran into the bathroom. The door remained open with the accused walking in and out of the bathroom. She said she was standing in the bathroom shaking. She did not know what to do and then another ‘gush’ of fluid came out of her vagina and went on the bathroom floor. She was scared that he was going to see it so she cleaned it up.
The accused came in the bathroom and said, ‘Get in the shower’. She felt she had no choice but to do so. Whilst in the shower, she did not use shampoo or soap but told him that she had, because she had decided that if she ‘made it out alive’[17], she was going to report him. She was very frightened. She also had pain in her face, back, legs, arms and vagina. She dried herself with a red and white towel and placed it on the door handle in the accused’s bedroom. She put on the same clothes she had been wearing in the previous days. She then returned to the kitchen while the accused made pancakes. He asked her if she wanted some. She said, ‘no’. She went back to the bedroom while he made the pancakes and ate them. Whilst she was in the bedroom, she went to the window to see if anyone was walking past so that she could try and signal for help. The accused kept coming in checking on her. Later he came into the bedroom and lay on the bed. She was also laying down pretending she was going to sleep.
[17] T92.
GSD gave evidence that she still thought she could not leave the house at that stage because she had seen the windows screwed shut and the accused had locked the front and back door. She gave evidence that there were 8-foot gates in front of the doors so there was no way of her getting out, even if she could get out of the front or back door. At that stage, her belongings were in the accused’s bedroom and she thought her purse was on the floor near the bedroom door.
After a short time, she decided to get up, make coffee and take some tablets because her mouth was sore. At that time, she saw a handwritten note on the kitchen table. She recognised the handwriting as the accused’s. She did not read it but recognised it as what she called a ‘sorry note’. She gave evidence that she ‘…wasn’t up for taking the sorry this time’.[18] She gave evidence that the note was not in this position before she was assaulted by the accused nor when he was making the pancakes.
[18] T123.

She then went into the loungeroom that is at the front of the house. She did that because she thought the windows were bigger and she might be able to get someone’s attention through the window. She saw the lady next door pull up in a red car. She waved her arms around at her. The lady got out of her car and went inside. She did not bang on the windows or otherwise draw attention as she thought the accused would hear her. Whilst she was in the loungeroom, the accused came in a couple of times. She told him that she was watching the next‑door neighbours having an argument. This was untrue. She gave evidence that the accused thought it was funny that they were fighting and said, ‘Come and lay back down, babe’.[19]
[19] T125.
GSD gave evidence that she was moving constantly from the couch to the window looking for help. She sat down on the couch and started praying. She said that was unusual for her. She then went back to the window and instead of looking out the window, she started looking at the window. She then realised there were no screws in it. She said there were two locks; a turn-lock and a slide lock. She undid both locks but the window still would not open. She described it being like a window that had been painted shut. A few minutes later, she saw a police car go past. It appeared to be slowing down. She thought that it was not going to be far up the road so, with the palm of her hand she pushed as hard as she could on the window. It came open. She jumped out and ran down the road to a female police officer. She asked the police officer for help. She told the police officer that the accused had had sexual intercourse with her and raped her. She pointed out the love bite on her neck, and wanted to make it clear that it was not a love bite, but a forced bite.
With reference to the Exhibit P10, GSD identified the injuries that were caused to her during the events of 29 and 30 June and the cause of those injuries.
In cross-examination, she confirmed that she had lived at the accused’s house for a short period of time before moving out to live with her father. She confirmed that she and the accused smoked marijuana on Friday night but not on Saturday or thereafter. It was suggested to her that the fences on the side of the house were about 5.5 feet high. She denied that. She confirmed that the lady who lived next door and drove the red car was a neighbour of the accused but someone he did not get along well with. She denied having any involvement with the keys that were seen in Exhibit P5, photo 6.
She was cross-examined about her relationship with the accused. She agreed that he had not been physically violent to her prior to the occasion in question, but he had done violent things like break her phone and rip her bags in the past.[20] She said that in this context, he would write many ‘sorry letters’ and there had always been apologies for the damage to her property.
[20] T150.
She was cross-examined about the altercation in relation to the phone on Saturday morning. She agreed that she had pushed the accused away from the phone and the two of them had gone back and forth about the phone before the accused picked her up and body slammed her to the floor. She said that they had pushed each other on occasions before this incident when he tried to take phones off her but he has never actually hit her or twisted her arms or done anything like that before. It was put to her,
QSo would it be fair to say that on this Saturday morning that was the first time that there started this physical exchange of pushing between you without there being an object that you were both physically fighting over.
ANo. It had nothing to do with the object and a lot to do with his attitude over the girl at the bus stop and that, and the phone came into it because I said that I was going to go home and let him cool off, and he didn’t want me to go home, so he’s ripped the phone out of my jacket.
QAnd he smashed it.
AYes.
QAnd then you pushed him.
AYes.
QAnd then he pushed you back.
AYes.
QAnd then you pushed him again.
AYes.
QAnd then he exploded.
AThat’s it, yes.[21]
[21] T153 Lines 4-23.
She agreed that it was difficult to reason with the accused when he was really angry and that when he ‘flipped out’ she said there was no sort of communication, but that she would try different ways to talk to him.[22]
[22] T154.
She was cross-examined about what occurred in the bedroom, and in particular, what occurred when he said, ‘Put it in, babe’ referring to his penis. It was put to her that she had said in a statement given on 22 July 2019 that the accused said, ‘Put it in babe, what’s going on? Put it in’. She accepted she said that to the police and accepted that the accused said those words to her. She was asked whether she had the impression that he was expecting her to put his penis into her vagina and was confused as to why she was not doing that. She said, ‘On his mind, we were meant to be making love, but yes’. She was asked, ‘…did it seem that he was confused as to why you weren’t putting his penis in your vagina?’, she answered, ‘I don’t know what he was thinking’.[23]
[23] T158.
She agreed she had had some contact with the accused after this incident in the hope that he would make admissions to raping her but the accused had not made those admissions.
Shaolyn Moran was called. She lived next door to the accused at the relevant time. She gave evidence that at about 3.00 p.m. on 30 June 2019, she drove her red Holden Commodore into her driveway. As she was pulling into her driveway, she saw a lady’s face at the window of the accused’s house. She described the lady as looking ‘a bit freaked out’ and waving at her. She described the woman having wide eyes, sort of waving and looking a bit panicky. She demonstrated by waving her hand in the same way as the woman. She said the woman was standing at what is the loungeroom window of the accused’s house. She had not seen this woman before.
Constable Mawhinney gave evidence that he attended the accused’s house on the afternoon of 30 June 2019. The accused had been arrested and was being removed. Prior to that, he had a conversation with the accused about obtaining his wallet. They went into the bedroom and the accused retrieved his wallet from between the mattress and the bed base. There was also a female’s purse in that position. This was recorded on body worn camera footage that was tendered and played to the court.[24]
[24] Exhibit P12.
The initial complaint made by GSD was to a police officer, Constable Blackmore who attended at about 3.30 p.m. in Cockshell Street. She was in that location in relation to an unrelated matter at 17 Cockshell Street. She saw the complainant who she described as upset, shaking, crying and could barely get a word out. She noted bruises to her face and her neck, and then activated her body worn camera. That was activated at about 3.38 p.m. and the footage from the camera was tendered as Exhibit P1 and the transcript as MFI P2. The footage shows the complainant visibly distressed and upset. Not all the footage is admissible in relation to this matter. I have used the footage in relation to the distress and will come to the use of that in due course and in respect of the initial complaint. The footage is also admissible in respect of the injuries that are visible although not the explanation by the complainant as to how she received those injuries.
During the course of the conversation, GSD said that the accused raped her and he said it was making love. She said he pinned her down on the bed and she has bruises all over her from where he pinned her down. GSD went on to say the accused said she would not be able to prove it because it looks like they had made love. She said she arrived at his premises a couple of days ago. She then described the argument that led to the events, and said that she had seen the police car and jumped out the window. She also told the police that there was a bath towel hanging on the bedroom door because she had her period. She said she was saying ‘no’ and screaming. She said the accused made her have a shower, ‘he literally chucked me in there’, she said. She said the accused held her down on the bed by ‘all sorts of body parts’ and twisted her arms. She demonstrated how the accused did that. She said she was trying to get her leg up and push him off but he pinned her down. She then turned her head and demonstrated how she was trying to stop him.
Constable Blackmore said that after the body worn video was turned off, she asked the complainant what penetration had occurred and the complainant said there was penile-vaginal, and also said the accused went ‘down on her’, which I accept is common parlance for an act of cunnilingus.
This material constitutes the initial complaint.[25] Her distress can also be used to buttress her credit in respect of counts 2 and 3. The complaint is evidence from which I can be informed how the allegation first came to light and to assess the consistency of conduct by the complainant in making her allegation at that time and the words that she used to convey the complaint.[26]
[25] Evidence Act 1929 (SA) s 34M.
[26] R v J, JA (2009) 105 SASR 563.
Further evidence was called that may be put under the topic of forensic evidence.
A crime scene investigator attended at the premises that afternoon. She took photographs[27] and examined relevant items. She located a towel hanging on the door handle of the master bedroom. She noticed some markings that appeared to be blood. She tested to the area and received a positive result to the presumptive test for blood. A towel in the bathroom also returned a positive result. She examined some items on the bed that I do not consider relevant to my consideration.
[27] Exhibit P5.
In the wheelie bin outside she located a white quilt that tested positive for the presumptive test for blood and took a swab of the area. She tested a blue blanket also found in the wheelie bin. There appeared to be no blood but there were areas of luminescence under the pollilight. She photographed these items and explained the significance of these findings.[28]
[28] T50.
A toxicology summary report was tendered in relation to samples taken from GSD.[29] Urine and blood had been collected during the course of a medical examination that occurred on 30 June 2019 by Tracey Markham at the Royal Adelaide Hospital. The results indicated the presence of a number of substances in the urine and blood. One of these substances was a benzodiazepine, another a drug used in the treatment of major depressive disorders and codeine to treat mild to moderate pain. There were also some metabolites detected. Each of these substances was within the reported therapeutic concentration range and consistent with the evidence of GSD that she had consumed these substances during the period of 48 hours prior to the collection of blood or urine.
[29] Exhibit P7.
In addition to this, tetrahydrocannabinol (‘THC’) was located. This is consistent with the evidence of GSD that she had consumed cannabis on the evening of Friday 28 June 2019.
A toxicology summary report was received in relation to the accused.[30] Blood and urine was taken from him. Codeine and THC were located in his urine and in his blood. The presence of THC is consistent with the evidence of GSD that the accused consumed cannabis on the evening of 28 June 2019.
[30] Exhibit P6.
During the course of the examination of GSD at the Royal Adelaide Hospital, samples were taken including an endo-cervical swab, high vaginal swab, low vaginal swab and labial swab. These were examined at the Forensic Science Centre. A report entitled Evidence Recovery Investigative Report was tendered, Exhibit P8, reports that sperm was observed in each of the swabs. It was in low levels on the endo-cervical and labial swabs and medium levels on the high and low vaginal swabs.
Evidence was called from Dr Phillippa Hearnden, a forensic scientist currently working in the biology section of the Forensic Science Centre of South Australia.
Dr Hearnden gave evidence that the finding of whole sperm on the swabs taken from the endo-cervical swab and high vaginal area is consistent with intercourse having occurred for up to seven days prior to the taking of the swabs. The presence of whole sperm on external areas such as low vaginal and labial swabs is unusual more than three days after intercourse. Her evidence was that the findings of high levels of sperm in the regions where they were located is consistent with penile-vaginal intercourse having occurred 10 hours or so before the swabs were taken.
Dr Hearnden gave evidence that a presumptive test for saliva was taken from the labial and breast swabs. The labial swab gave a positive result. The breast swab was negative. Dr Hearnden gave evidence that just because there was a negative swab in respect of saliva on the breast, does not mean that licking did not occur. It means that it was not detected. She gave evidence that activities such as showering and washing would have an effect on the results of the test.
The table of the DNA results was tendered.[31] The swab from the vagina had a sperm fraction that contained DNA, which was a mixture from two donors. One of the contributors was the complainant. Dr Hearnden gave evidence assuming that the DNA result is greater than 100 billion times more likely to be obtained if the accused is the other contributor and that equates to extremely strong support for the evidence. In respect of the same swab epithelial cell fraction, she gave evidence that it was 1100 times more likely to obtain the DNA result if the accused was a contributor and that amounts to very strong support. Similarly, in relation to the labial swabs both the sperm fraction and the epithelial fraction resulted in extremely strong support for the finding that the accused was the contributor to the mixed DNA profile.
[31] Exhibit P14.
There was no cross-examination of Dr Hearnden.
Ms Tracey Markham gave evidence. She is currently employed as a forensic nurse practitioner at Yarrow Place Rape and Sexual Assault Service. She graduated with a Bachelor of Nursing in 2003, and in the same year, completed a Graduate Certificate in Forensic Nursing. In 2008, she completed the provision of medical care course at Yarrow Place and in 2011, completed an online sexual assault nurse examiner program through the Duquesne University in the United States. In 2018, Ms Markham completed a Masters of Nurse Practitioner.
On 30 June 2019, she saw GSD at the Royal Adelaide Hospital where there is an after-hours forensic service. She conducted a full body examination, recorded injuries on body charts and took photographs of them. She noted a number of injuries to the face including a 6.5 by 5.5 cm dark red bruise to the left‑hand cheek that was tender to palpation and swollen. There was also redness under the right eye and swelling to the upper lid and a purple bruise to the left orbital floor and slight swelling to the left upper lid. In addition to this, there was redness on the left side under her lip. These injuries are also plainly visible in the photographs that were taken.[32] The evidence of Ms Markham was that these injuries are consistent with GSD being hit twice to the left-hand side of her face, although she was unable to say whether those punches occurred at the same time or different times. She also gave evidence in relation to petechial bruising and a red purple bruise to the neck of GSD, and that it was consistent with a love bite to that area and to pressure being applied to the neck.
[32] Exhibit P10.
There were also other injuries located on the hands and wrists of GSD including a cluster over the back of the hand and wrist that was tender on palpation and consistent with GSD’s hands and wrists being forcefully grabbed and pinned down. In addition to this, there were numerous injuries in the form of bruises to her legs consistent with force being applied by the accused to that area in the form of blunt force trauma. There were also injuries to the area under her arms. These injuries, said Ms Markham, were consistent with clothing having been pulled up and causing abrasions. She noted no injuries to the vagina or genital region upon examination. She did, however, observe that GSD had her period at that time and the presence of menstrual bleeding affected her ability to see the vaginal walls and cervix. She took samples from GSD.
In cross-examination, she was asked about the bruising to the neck and the possible mechanisms for the injuries that were observed. She was asked whether there remains a whole constellation of possible causes for the resulting injury. She answered that it is an unusual place to get an accidental injury. She opined it was caused by some kind of blunt force trauma but would not be able to say whether it was with hands, mouth or another object, including a knee. She agreed that any one of those possible causes could apply. She also said that she would not be able to say whether the injuries occurred at different times over a 24 to 48 hour period and said they could be consistent with a struggle between two people grappling and wrestling with each other. It was put to her that the fingertip bruising that was observed around the arms and hands may be consistent with a struggle of two people wrestling on the floor as opposed to two people fighting on a bed. Ms Markham said she could not say in which scenario those bruises had arisen. She agreed that the injuries to the leg and knees of GSD could be consistent with an individual being involved in a fight or wrestle on the floor and trying to knee someone else or use their knee to push the other person away.
She was then asked in re-examination about medications.
Brevet Sergeant Sargeant gave evidence. He is the investigating officer. He first dealt with the accused at the Elizabeth Police Station on 30 June 2019. He did not note any injuries to the accused. He said the accused is 190 cm or 6’3” tall, and his weight is recorded as 80 kg. He took buccal swabs from him and was aware that the towel and bedding were seized but not submitted to the Forensic Science Centre, as a decision was made that it would not further the evidence in relation to this case to do so.
The accused did not give evidence nor did he call any evidence.
Both the prosecution and defence addressed. I have taken into account what each of them said.
The defence position in relation to count one was that the complainant had been a consistent witness and there were no issues that went to the question of the lawfulness of the accused’s alleged behaviour that gave rise to a reasonable doubt in respect of the offence. There was also a concession in relation to the circumstance of aggravation being proved.
In respect of counts 2 and 3, it was submitted that there was no challenge to the factual matrix as outlined by the complainant but that the real issue was whether the third element of each charge had been proved. This in large part, came from the description of the complainant of the explosive type behaviour of the accused during the day that proceeded the events the subject of the counts and during the events. It was put that the evidence of the complainant in relation to the accused’s calm and explosive moods when contrasted, paints a picture of a man with little capacity to reason in relation to his actions when in a heightened state. It was submitted that the comments made by the accused of ‘making love’ and his actions at the time, are such as to give rise to a reasonable doubt the he knew the complainant was not consenting or was recklessly indifferent as to her lack of consent in respect of both counts.
Discussion
The accused is charged with three offences. Count 1 is alleged to have occurred the day before counts 2 and 3. Counts 2 and 3 are alleged to have occurred within a very short time of each other. The prosecution rely primarily upon the evidence of the complainant, GSD. Her evidence they say, is supported in material particulars by other evidence.

GSD was a most impressive witness. Despite the fact that her evidence was punctuated by lengthy delays[33], she clearly articulated the events that she said occurred from Friday 28 June to Sunday 30 June 2019. She was consistent in her evidence and appeared to have a very good recall of the events. Her evidence is supported to a large extent by other evidence that was called by the prosecution. This includes the findings of the presumptive tests in relation to blood on the quilt, and the towel that she said she used after showering, being consistent with menstrual blood mixed with ejaculate.
[33] There were difficulties with the accused attending on each day of the trial. His mental state was examined at the request of his counsel during the course of the trial.
The complainant’s evidence is also consistent with the injuries that were observed by Ms Markham and the testing done by the Forensic Science Centre in relation to the swabs taken from her by Ms Markham. In addition to this, the evidence of her waving from the window to attract attention is supported by Shaolyn Moran, who observed a woman who was unknown to her at that time, waving from the same window.
The evidence that she gave about the events in the house is supported to a large extent by her level of distress when she confronted Constable Blackmore on the street and complained about the sexual offending of the accused. GSD’s evidence is entirely consistent with the evidence of complaint. It is also supported by the mere fact that she thought it necessary to escape from the house via a window at the front of the house. This is extreme action taken by her that I am satisfied emanated from the terror that she felt at the hands of the accused. I have used the evidence of her complaint and distress in relation to counts 2 and 3.
I accept the evidence given by GSD. Her evidence was clear, coherent and cohesive. She was a thoughtful witness. She was not contradicted in any significant way.
It was not suggested by the defence that GSD had exaggerated her evidence or was untruthful in her evidence. Rather, the defence relied upon the requirement that the prosecution prove all elements in particular of the offence of rape.
The complainant’s evidence in relation to count 1 was not challenged. I am satisfied beyond reasonable doubt that the accused deliberately punched GSD in the face during the altercation on Saturday 29 June 2019. Further I am satisfied that GSD suffered injuries to her face as a consequence. There was no lawful excuse for the force that he applied. I am also satisfied that at the time of the assault the accused was in a relationship with GSD insofar that they were intimate partners whose lives were interrelated. I find that they supported each other in terms of domestic duties, various appointments and general living arrangements although they were not cohabitating at that time.
The submission of the defence in respect of counts 2 and 3 focused upon the third element of the offences and the necessity of the prosecution to prove that the accused knew or was recklessly indifferent as to the complainant’s lack of consent. It was suggested that I may not be satisfied of this element beyond reasonable doubt in relation to either or both charges of rape. My attention was drawn to the cross-examination on pages 155‑8.
QAnd it was while you were sitting in that chair I think that your evidence was that Mr Tennant picked you up and carried you towards the bedroom.
AYes, he did.
QAnd you asked him what was going on.
AYes.
QAnd he said ‘We’re going to make love’.
AThat’s correct.
QYou suggested to him that maybe you could go for a walk.
AYes.
QAnd he said ‘No, we’ll go for a walk after we’ve made love’.
AYes.
QAnd then you described that you were asking him to get off you, were you. He put you on the bed and you were asking him to get off you.
AYeah.
QYou said to him ‘Stop’.
AYes.
QAnd he said ‘Take your top of, dickhead’.
AYes.
QAnd then you gave evidence about then you say there was some more hitting and he was physically holding you down and twisting your arms –
AYes.
Q‑ while he was performing various sex acts on you when you were saying he was licking your vagina, and giving you a love bite and that sort of stuff.
AYes, different positions, was twisting of the arms and that, yes.
QAnd was it your evidence that when he gave you the love bite he said ‘There, now everyone's going to know we made love’.
AYes.
QAnd it’s the case, isn’t it, that after he gave you the love bite he said to you ‘Put it in, babe’.
AYes.
QReferring to his penis.
AReferring to his penis, yes.
QAnd you didn’t respond to him when he said ‘Put it in, babe’.
ANo. I said ‘No’ a couple of times but I felt like he was getting off on it by saying ‘Put it in, babe’, so that’s when I didn’t answer him and he's just rammed it in himself.
QIs it the case that he said ‘Put it in, babe’ that you didn’t answer and then he said ‘Put it in, babe. What’s going on? Put it in’.
AHe said it a couple of times, yeah.
QIt’s just that particular exchange I want to ask you about. You gave a statement to police about this matter - it would be the first statement - on 22 July at Elizabeth at 10.30 a.m. to Brevet Sergeant Sargeant.
AYes.
QAnd after giving that statement you read through it to check that it was correct to the best of your memory.
AYes.
QThen you signed it.
AYes.
QDo you recall telling Brevet Sergeant Sargeant, this is at para.26, he said ‘“You love it” and then he gave me a love bite on the right side of my neck. After this he said “Put it in, babe”. I didn’t answer and he said “Put it in babe, what’s going on? Put it in”’. Firstly, do you recall telling Brevet Sergeant Sargeant that that’s what Chris had said while he was having sex with you on the bed.
AIt is what he said.
QSo do you accept that is what he said.
AYes.
QSo when he said ‘What’s going on?’, when he said ‘Put it in, babe, what’s going on? Put it in’, did you have the impression that he was expecting you to put his penis in your vagina and he was confused as to why you weren’t doing that.
AOn his mind, we were meant to be making love, but yes.
QThat’s what I’m asking about, in his mind, did it seem that he was confused as to why you weren’t putting his penis in your vagina.
AI don’t know what he was thinking.[34]
[34] T155 Line 27 – T158 Line 23.
I am satisfied beyond reasonable doubt that by the stage the accused engaged in sexual activity with the complainant he had, on the previous day, smashed GSD’s phone, slammed her to the floor by lifting her body off the floor by her clothes, thrown her onto the floor, punched her to the face, pinned her face to the floor, pulled her hair and laid his entire body weight upon her. GSD had tried to defend herself against his physical assaults at that time. He had locked her in the house, such that she thought she could not leave. I am satisfied beyond reasonable doubt that the accused had done all these things because GSD told him that she wanted to go home and he did not want her to leave.
I accept that when the accused picked up GSD to take her to the bedroom, he said that they were going to ‘make love’. In some circumstances, it may be possible to infer from this comment, a state of mind in which the accused thought he was engaging in a mutual act of consensual intercourse. Even if this was the accused’s state of mind at the time he said those words, the following events satisfy me that the accused knew GSD was not consenting to any sexual activity with him.
·the complainant immediately said ‘no we’re not’;
·she immediately struggled trying to escape;
·he threw her on the bed;
·he jumped on top of her;
·he grabbed her arms and restrained them over the top of her head;
·she repeatedly told him ‘no’ in unequivocal terms;
·she told him she had her period;
·she physically resisted;
·he punched her in the face; and
·he ripped her clothes off.
I do not accept there was any possibility that the accused, even with his limitations, did not know that GSD was not consenting to any form of sexual activity.
I am satisfied beyond reasonable doubt that immediately prior to the acts of sexual intercourse, the accused picked up GSD in his arms and said, ‘We’re going to make love’ to which she responded, ‘No, we’re not’; that GSD tried to ‘spring out’ of his arms but could not get out because he was gripping her so tight; and that the accused then threw her on the bed, jumped on top of her, grabbed her arms and twisted her arms and hands over the top of her head. He then lay on top of her with his face towards her, holding her arms with his arms whilst she was screaming at him to get off her and saying, ‘I’ve got my period’.
I am further satisfied that when the accused did not get off her she got ‘really mad’[35] and tried to knee him in the scrotum. He told her not to hit him and then he punched her again to the left side of her face but a little lower down than the day before. He then physically ripped her clothes off, damaging her clothes in the process.
[35] T86.
I am satisfied beyond reasonable doubt that GSD constantly told him to get off and was screaming at him whilst he was restraining her by twisting her arms and hands. It was in this context that he committed the act of cunnilingus and then gave her a love bite that he said showed that they had ‘made love”. He then started saying ‘put it in, put it in’ to which she responded, ‘No, it’s disgusting’. I am satisfied that the accused then forced his penis into her vagina and engaged in sexual intercourse with GSD until he ejaculated. When he completed this act, he said, ‘Go have a shower, you feral’.
I am satisfied beyond reasonable doubt that the conduct of the accused demonstrates quite clearly and forcefully that he knew the complainant was not consenting to any of his sexual advances.
In making this determination, I have taken into account the accused does have, as the complainant described, an explosive behavioural disorder but even bearing that in mind, there was nothing about GSD’s behaviour, demeanour or the circumstances of the events as described by her, that I accept, from which it is possible that the accused did not know of her lack of consent to the sexual activity. There is no suggestion in this case that conduct of this type was a part of the usual sexual contact between the accused and GSD.
I find that the comment by the accused in relation to giving her a love bite so that ‘everyone knew they made love’, was made in an effort to justify his actions and to attempt to dissuade the complainant from taking the matter further or making a complaint. Further, his statements of ‘put it in babe, what’s going on’ were made at a time when the complainant was saying ‘no it’s disgusting’ and ‘no, no’ and the accused then grabbed her ‘…right arm and he’s twisted it a hell of a lot further back and he’s just rammed his penis into my vagina and, you know, felt like forever’.[36] I am satisfied that there was no misunderstanding or confusion on the part of the accused, rather the accused knew GSD was not consenting when he had sexual intercourse with her by committing an act of cunnilingus and then penile‑vaginal intercourse. In making this finding, I have taken into account the personal attributes of the accused.
[36] T89.
I am satisfied that the prosecution have proved the elements of the charged offences beyond reasonable doubt. I, therefore, find the accused guilty of each charge.