R v Thorpe
[2016] SADC 25
•11 February 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v THORPE
Criminal Trial by Judge Alone
[2016] SADC 25
Reasons for the Verdict of His Honour Judge Stretton
11 February 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused attended the complainant’s house unannounced late on the evening of 26 November 2014. It is alleged that he took up a kitchen knife and threatened to kill the complainant with it unless she agreed to have sex with him, and the complainant complied for that reason, having oral then vaginal sex with the accused. She said that she kept objecting, and cried throughout the vaginal sex. The accused gave evidence, saying that he ‘pestered’ the complainant for sex and had oral and vaginal sex with her, but denying that he threatened to kill her unless she complied. He was charged with one count of aggravated threatening life and two counts of rape.
HELD: The complainant’s evidence of events was compelling and true beyond reasonable doubt. All three charges are proven beyond reasonable doubt.
Criminal Law Consolidation Act 1935 ss 5, 19(1), 46, 47, 48; Evidence Act 1929 ss 34M, 34P, 34Q and 34R, referred to.
R v THORPE
[2016] SADC 25Introduction
On the evening of 26 November 2014 the accused Joshua Troy Thorpe attended the house occupied by the complainant and their 1 year old son Riley.
It is common ground that the accused had oral and vaginal sexual intercourse with the complainant prior to departing the house at around midnight.
Much of what occurred at the house that night and the nature and circumstances of the sexual intercourse are in dispute.
The complainant says that the accused threatened to kill her with a carving knife, that she did not consent to sexual intercourse, and that she only submitted to the accused’s demands for sex as he was threatening to kill her.
The accused gave evidence that he did not threaten the complainant, and although she initially refused him, he ‘pestered her for sex’ and she eventually consented.
The charges
The accused was arrested and charged with the offence of Aggravated Threatening Life[1], and two counts of Rape[2]. The particulars of the respective rape counts allege that the accused caused the complainant to perform oral sex[3] on him, and had penile-vaginal sex with her.
[1] Criminal Law Consolidation Act, 1935, s19(1).
[2] Criminal Law Consolidation Act, 1935, s48.
[3] Described in the Information as fellatio.
I have full regard to the charges as particularised in the information without setting them out in full here.
Elements of the charged offences
The elements of the offence of aggravated threatening life are:
1.That the accused threatened the life of the complainant;
2.Without lawful excuse;
3.Intending to arouse a fear that the threat would be or was likely to be, carried out or being recklessly indifferent to whether such a fear was aroused;
4.It is an aggravating factor if the accused used an offensive weapon when committing the offence.
5.It is an aggravating factor if the accused committed the offence knowing that the complainant was his former spouse.
The elements of the offence of rape are:
1.The accused had sexual intercourse with the complainant. Sexual intercourse is widely defined[4] and includes oral sex[5] and penile-vaginal penetration.
2.The complainant did not consent. Consent means a free and voluntary agreement to the sexual activity.[6] Without limiting that concept, the law also provides that a person is taken not to freely and voluntarily agree to sexual activity if the person agrees because of force or an express or implied threat of the application of force or a fear of the application of force to the person or to some other person, or an express or implied threat to degrade, humiliate, disgrace or harass the person or some other person.[7]
3.That the accused knew the complainant was not consenting or was recklessly indifferent as to whether she was consenting.[8]
[4] Criminal Law Consolidation Act, 1935, s5.
[5] Fellatio.
[6] Criminal Law Consolidation Act, 1935, s46.
[7] Criminal Law Consolidation Act, 1935, s46.
[8] Criminal Law Consolidation Act, 1935, s48.
The concept of “reckless indifference” as to consent
A person is recklessly indifferent to the fact that another person does not consent to an act if he or she (a) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but decides to proceed regardless of that possibility; or (b) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the other person does in fact consent, or has in fact withdrawn consent, to the act before deciding to proceed; or (c) does not give any thought as to whether or not the other person is consenting to the act, or has withdrawn consent to the act before deciding to proceed.[9]
[9] Criminal Law Consolidation Act, 1935, s47.
Trial by judge alone
The accused elected to be tried by judge alone.
Preliminary matters
I apply all the standard directions as to evidence, procedure, proof, and standard legal principles that would be delivered to a jury were this a jury trial. It serves no purpose to recite them all here.
It is of course fundamental that on the trial of any criminal charge against any accused person, the onus rests entirely with the prosecution to prove beyond reasonable doubt each and every element of any charge it levels against an accused person. Each charge must be considered separately, based only on the evidence relevant and admissible against the accused as to that charge.
In this matter, the complainant and the accused gave quite different versions of the events. It is important to recognise that it is not a matter of deciding which version of events is more convincing than the other, or more likely to be true. It remains at all times for the prosecution to prove its case beyond reasonable doubt against the accused.
There is no burden on the defendant to prove anything whatsoever. Whilst there was no obligation for him to do so, the accused gave evidence on oath at the trial and the law recognises that he deserves credit for taking that course, a course he was not obliged to take. Having given evidence, his evidence is to be assessed in the same way as the evidence of any other witness in the trial.
Uncharged acts and prior offences
The prosecution sought to lead evidence of some prior events that it alleged had occurred between the accused and the complainant. Some of that evidence was objected to. The evidence was admitted.[10]
[10] Reasons separately published.
When cross-examining the complainant, counsel for the accused introduced evidence of several other events, some of which involved the accused committing previous offences against the complainant. When the accused gave evidence in chief he also recounted his version of those other events that his counsel had introduced when cross examining the complainant.
That type of evidence can only support a prosecution case in a limited way. It was led by the prosecution to explain the nature of the relationship between the accused and the complainant, to put the alleged offending in its proper context, and to explain why the complainant reacted and behaved the way she did at the time of the alleged offending, including for example why she may have submitted to the accused’s sexual demands on the charged occasion.
It may not be used to support the prosecution case in any other way.[11]
[11] I also have regard to and apply Part 3 Division 3 of the Evidence Act 1929, and in particular ss34P, 34Q and 34R.
For example, it would be wrong to reason that simply because the accused may have acted badly towards the complainant on other occasions or committed offences against her on other occasions, that he committed the alleged offences on this occasion. It would also, for example, be wrong to reason from any of those other events that he is a bad person, of bad character or the sort of person who might or did commit any of the charged offences.
On the other hand, the court has had full regard to the evidence in terms of the submissions of defence counsel as to the ways the court might regard the evidence in support of the defence case.
Complaint evidence
Evidence of the initial complaint made by the complainant was given.
That evidence is also admissible only for a limited purpose. It is admitted to inform the court as to how the allegation came to light and as evidence of the consistency, or otherwise, of the conduct of the alleged victim. Importantly, it is not admitted as evidence of the truth of what was alleged.[12]
[12] I have full regard to the matters set out in s34M of the Evidence Act, and as set out in the Supreme Court’s judgments as to the interpretation of that section.
The prosecution case
I will summarise central aspects of the witnesses’ evidence; I will not repeat it all, however I have had regard to it all.
The complainant was 20 years old at the time of trial in January 2016.
She gave evidence that she formed a relationship with the accused Joshua Thorpe in October 2012, and a matter of weeks later discovered that she was pregnant to him. She said the two of them lived together briefly for at least one period in the course of the following months.
The complainant said that an incident occurred in January 2013 whereby they split up.
She said they were both staying at a property in Salisbury at the time. The complainant was texting a former partner, arranging for that former partner to pick up some of his things from the complainant’s mother’s house. The accused looked over her shoulder, noticed the text communications, and became very angry that she was communicating with her former partner. He demanded that she stop talking to him.
The accused then accused the complainant of hiding things from him and indicated that he thought that she might be trying to rekindle a relationship with that person. The accused started yelling at the complainant to stop talking to the former partner, left the room, returned with a knife, stood at the doorway of the bedroom and told her that if she didn’t stop talking to the former partner he would slit her throat.
The complainant gave evidence that she assured the accused nothing was going on and tried to calm him down, telling him that she was tired due to the pregnancy, had morning sickness and just wanted to rest. At that the accused left the room, wrote a suicide note in one of her books and spent the night on a couch.
The complainant said she had hoped that was it was just a one-off, that it had just been said out of anger and that everything would be OK. Nonetheless she wanted a few days away to try and clear her head, but she found she could not get over the fear of what he had said to her, so she decided to just break up with him and leave the relationship.[13]
[13] T 46-47.
The complainant said that they started talking again the following month, on a date in February when she went to court to relax a restraining order against him, and they resumed what she described as “on and off again” contact. She said they would see each other, then they would fight, or he would do something, get angry and threaten her so they would break up and not talk to each other “and then it was just very on and off again and unpredictable”.[14]
[14] T 48.
The complainant said that the accused would threaten her, mainly in relation to having sex. She said that if she did not want to have sex with him the accused would raise his fist to her, threaten to leave her to be a single mother, or threaten to accuse her of playing a part in him breaching his restraining order so she might lose her domestic violence house that he was not meant to be attending.[15]
[15] T 48-49.
The complainant gave the example of a particular incident that occurred when she was 26 weeks pregnant. It was in around May or June 2013. She was living in a domestic violence house in Andrews Farm when she received a phone call from the accused saying she needed to come and get him from a named street otherwise he was going to find her and kill or hurt her.
The complainant accordingly drove to where the accused was and picked him up. The accused was angry. The accused brought his pillow into the house, and started asking the complainant to “make him feel better” and “take away the pain”, by having sex with him. The complainant refused and the accused became angry and started threatening her with physical violence. He said words to the effect of “I will bash your head in” and “don’t make me hit you, don’t make me force you”. This went on for several minutes. She was scared both for herself and for her pregnancy.
The complainant said that for the first time she did not know how to get out of the situation and was terrified, “so to calm him down I just submitted to him and I just had sex with him and I remember feeling disgusting, I did not want to be doing what I was doing, I couldn’t see another way out”.[16]
[16] T 50-56.
The complainant gave evidence that their son Riley was born in August 2013, and shortly after that the accused moved into the house at Andrews Farm, with the relationship proceeding on an “on again, off again” basis at several addresses. The complainant said that the accused “officially moved out” from living with her in late April 2014.
There still continued to be “on again, off again” contact until November 2014.
The complainant gave evidence that on 24 November 2014 she was at the house of her earlier former partner Michael at Elizabeth Vale. He was having a look at a problem she had been having with her car. The accused started repeatedly ringing her, saying he had discovered that another friend, James Darling, had stayed at the complainant’s house, and said that he wanted to know the truth about what had happened and that he was going to kill the complainant if she did not tell him.[17]
[17] T 58.
The complainant drove home, and as she got close to home she noticed the accused’s vehicle, a blue Audi, two cars behind her. She became worried. She messaged Mr Darling on Facebook that the accused was behind her. She noticed a roundabout ahead and turned the opposite way from her home, but the accused followed her, now immediately behind her, and tailgated her.
The accused started gesturing at her to pull over but she did not. The accused drove onto the wrong side of the road, overtook her then stopped straight in front of her on the one lane (each way) road, such that she had to ‘slam on’ her brakes to stop in the middle of the road behind him to avoid a collision. The accused alighted from his car and yelled at the complainant to pull to the side of the road. Other traffic was banking up behind them, with those drivers getting angry, so she pulled to the left, off the road, and so did the accused.
He alighted from his car and got into the passenger seat of her car and demanded the complainant’s phone. She refused and the accused started threatening to kill her. He got very close to her, raised his fists to her, and she was very scared. He was yelling at her, telling her he had a machete in his car, and that he was going to bash her head in unless she gave him the phone, telling her “don’t make me do this, I don’t want to have to do this”. He ordered her to drive and she complied.
He said he was going to kill himself, and she eventually gave him her phone. He began to go through the phone and read the messages to and from Mr Darling, and then the accused appeared to be himself messaging Mr Darling. The complainant drove back to where the accused’s car was.
The accused was at that stage demanding to know what had happened with the former partner Michael, and the complainant was trying to convince him that nothing had happened, and so the complainant suggested she ring Michael and speak with him on loudspeaker to convince the accused nothing had happened, which she did. That did not satisfy the accused, who said that it had not proven anything.
The accused appeared to become suicidal again. He then switched to asking if the complainant was going to call the police, and told her that if she did and he went to gaol he would bring her down with him, that he would kill her, and that even if he was in gaol he knew people outside of gaol who he would send after her who could harm her.[18]
[18] T 59-64.
Eventually the accused got out of her car and went to return to his own car, but then returned to her car, saying that this was the last time he was going to see her, and he did not want to leave on those terms. Then he left.
The complainant said she was worried that the accused would actually kill himself so she rang the accused’s grandmother to express her concerns. Then she drove to her father’s place.
Facebook screenshots from the complainant’s account were tendered as P2, showing the complainant’s 6.05pm message to Mr Darling that the accused was behind her, and a 6.40pm message from that same phone to Mr Darling “your fucked you cunt”. These messages appear consistent with the complainant’s evidence on oath that she did message Mr Darling that the accused was behind her, and that later the accused appeared to be messaging Mr Darling on her phone.
The complainant then gave evidence as to the events of 26 November 2014.[19]
[19] T 68-88.
The complainant said she was alone with her son at her Paralowie home. At about 9pm she recalled a knock at the front door. She called out ‘who is it?’, and an accented voice replied that it was her neighbour and that her dogs had got out. She did not think that was possible so she repeated her question ‘who is it?’ and the voice replied ‘it’s your neighbour, your dogs are outside. Come get your dogs’, and she recognised it was in fact the accused’s voice. The complainant said she became terrified because of what had happened the last time she had seen the accused. The accused then said ‘let me in you cunt’, and she saw the front doorhandle moving. Then she heard a ‘crunch type noise’ and the handle went all the way down. She moved towards the door to give the appearance that she had been about to open the door. She heard a really loud bang that sounded like the accused kicking the door, and it flung open violently striking her hand as it did so. The accused came ‘barging in’.
The accused immediately went all though the house, as if looking to see if anyone was there, including searching the wardrobes. She said he was angry, agitated and fidgety. She was scared and shocked and didn’t know what to do. The accused was saying things to her. She noticed that her dogs had gotten out, and was sure that the accused had let them out through the adjacent roller door, so she went out to get them and put them back in the backyard. The accused came out and helped her do that.
The house and the roller door are shown in photos tendered as P1.
Back inside the house, the accused was angry and agitated and was pacing up and down in her bedroom saying things like ‘what would you do if I did something really bad?’ The complainant noticed that the accused was sunburnt and covered with mud, and at that, and because of what the accused was saying, she feared that he’d killed and buried someone. She replied ‘what have you done, what is it that you’ve done?’ The accused would not tell her, but then started telling her stories, would then change the story, then tell her he was joking, for example at one stage saying that he had taken $10,000, then saying he was just joking.
The complainant repeated that he needed to tell her what he had done or leave, and at that the accused grabbed the complainant’s phone. The complainant grabbed it back and pulled it into her stomach area to keep it from the accused. At that the accused became very angry and held her down on the bed. The accused picked up a pen, saying ‘I wonder how a pen would feel in the back of the head’ and that if she didn’t give him her phone he would stab her in the back of the head with the pen.[20]
[20] T 73.
The complainant said she screamed and cried and begged the accused to stop acting the way he was acting. The complainant said that at that, ‘he switched’ and started asking her why she needed to be like this, why couldn’t she just be honest with him, and they could be together.
By this time the complainant’s son had woken up. The complainant tried to go and tend to him, but the accused would not let her unless she gave him her phone. So she gave the accused her phone so that she could get a bottle for her son, which she did.
When the complainant returned the accused was reading her messages, and had found out that the complainant had had sex with someone else and that she thought she was pregnant. She was worried at how the accused would react to that, so she tried to keep the accused calm by saying that the baby could potentially be his.
The accused started asking if she could make him feel better, if they could have sex, and the complainant replied that she did not want to have sex with him, and that her father was going to be there soon. At that the accused became very angry again. The complainant heard a noise out the front, and went and looked.
When she returned the accused had taken a kitchen knife from the kitchen and was holding it towards his own forearm. The complainant yelled ‘what are you doing?’
At that, the accused held the knife to her throat and said he was going to slit her throat. This is the allegation comprising count 1 in the information.
The complainant tried to calm the accused down, saying things like ‘What are you doing? It’s okay, like, you don’t need to do this’.
The complainant said that eventually the accused must have calmed down as he pulled the knife away from her, and she grabbed it from his hand and threw it onto the adjacent counter. The complainant said that the accused became calm again, and said he wanted to hold her and kiss her and have sex with her, saying things like ‘can you make me feel better, can you take this pain away’.
The complainant said she was terrified and disgusted at this point, but she kept trying to calm him down. She said to him ‘No, I just don’t feel like having sex, I’m not in the mood. No, I don’t want to have sex with you’. The accused got very angry again and started to kick and throw things around.
The complainant managed to calm the accused down again, and the accused took the complainant over to the lounge area of the house. He pulled her down on top of him and was wanting her to hug and kiss him. The complainant started crying. The complainant’s phone rang and the complainant said that they saw that it was the complainant’s father calling. The accused would not let the complainant answer it. The complainant had earlier said that her father was coming over. The complainant said that it was also approaching midnight and she was aware that the accused had a midnight P-plate curfew.
She said that the accused was becoming more and more agitated and started making it very clear that he wasn’t going to leave until he had sex. The accused got up, went into the bedroom and called her in. He sat down on the bed, pulled out his penis and told the complainant he wanted her to suck it. The complainant told him again that she did not want to have sex, saying ‘No, I don’t want to, I don’t want to be doing this, I don’t want to have sex’.
At that the accused got very angry again, stood up, and pushed the complainant down by her shoulders onto the bed. As he held her down on the bed he was swearing at her and kept repeating things like ‘You are going to do this, you whore, you are going to have sex with me. If you can have sex with someone else that you don’t know– that you barely know, you can have sex with me, you will.’
She told the accused she did not want to have sex. The complainant said that she was crying and scared. He was pinning her down. She repeated that she did not want to, but said that she would give the accused head, to which he replied ‘I don’t want head, I want your vagina’.
The complainant gave evidence that at that point the accused ‘switched again’, got off her, and said ‘if you don’t have sex with me I am going to fucking kill you, I will go back and get that knife, I am going to go back and get that knife’.
The complainant said that she felt terrified. She did not like knives anyway and was terrified of being stabbed, and in her own words:
QThen what happened.
ASo then I knew I wasn’t getting out of this. If I didn’t do something, he was going to get a knife and I was going to be stabbed or killed, slit – my knife – my throat slit, so …[21]
[21] T 83.
The complainant essentially capitulated at that point. She got up, turned off the kitchen light, returned to the bedroom and turned off the bedroom light. There was still some indirect light coming from the bathroom.
The accused had pulled his pants down again and asked her to suck his penis again. The complainant said ‘I don’t want to be doing this, I don’t – don’t make me do this’, to which the accused replied ‘… don’t make me make you do this’. So the complainant sucked the accused’s penis for ‘a minute or so’.[22] This is the allegation that comprises count 2 in the information.
[22] T 84.
The complainant said that the accused then pulled her up, and she took her pants off and went to lay down on the bed. She put saliva on her vagina as she was not aroused and did not want the vaginal intercourse to hurt. The accused then told the complainant to get on top of him, saying ‘no, you are getting on top because if you are on top it is not rape’. The complainant moved on top of the accused who then inserted his penis into the complainant’s vagina.[23] This is the allegation that comprises count 3 in the information.
[23] T 85.
The complainant said she leant forward, as that type of intercourse hurt her if she sat up straight, and she said the accused knew that. The accused however pushed her back up into the sitting position, and the complainant said ‘no’. The accused started moving the complainant’s hips with his hand and thrusting, and each time she tried to lean forward the accused pushed her back up. It was hurting the complainant and she was crying and sobbing.
The accused was not wearing a condom, so as she felt the accused begin to ejaculate she jumped off. She could feel his sperm on her vagina and she went to the toilet and tried to get anything that was in her out of her. She sat on the toilet crying. The accused then called out asking what he could wipe himself with. As the complainant returned to the bedroom she saw the accused had a beach towel and was wiping his penis and his stomach with it. [24]
[24] Depicted in photos 9 and 10 of exhibit P1.
The accused left the room and the complainant noticed her phone so checked the time, it being close to 12 midnight. She noticed she had messages but the accused returned to the room at that point, saying ‘what are you doing…are you going to call the police to tell them I raped you’, jokingly. The accused sat down and said to the complainant that he felt like he had raped her or that she only had sex with him because she was scared of him. The complainant said she was trying to get the accused to leave, and so she told the accused that her father was coming, that he needed to leave, and that it was almost his P plate curfew time.
At that, the accused got up and went to the front door, but then went to kiss the complainant goodbye. The complainant resisted and turned her head away, and the accused got angry again. The accused asked the complainant to be his girlfriend again, and she told him that they couldn’t be together. The accused then tried to fix the front door lock as he left, she describing the lock as being pushed or jammed in. The accused got the ‘little clippy thing’ out, but she later found it would still stick again when the handle was pulled down again. The accused walked off down the road.[25]
[25] T 89.
The complainant then put a status update on Facebook, with what she described as a ‘cry for help’, at which Mr Darling contacted her and asked what was wrong, and she eventually told him. The Facebook message sent by the complainant to Mr Darling at 4.49am was tendered as P3. Later, in cross examination the defence tendered the brief messages leading up to that as D3.
The message is a brief summary of the events, and while not exactly the same, is broadly similar to the evidence given by the complainant. After indicating that she was far from OK, and some other lead up discussion,[26] Mr Darling repeated his request that the complainant tell him what had happened and at 4.49am the complainant messaged:
Well he came over knocked on the door I asked who it was and he said your neighbour your dog’s got out. I thought it sounded like him so I panicked … I sat in silence. He got angry then yelled open up the fucking door. I froze so he kicked it in and barged in. Pacing everywhere looking to see if I had a guy in here. My phone was up on the counter in my room and he grabbed that and I snatched it off him.. then he got violent and said we can do it the hard way and that if I didny (sic) give it to him he would stab me in the back of the head with a pen and bear (sic) the shit out of me. After about 10 minutes of begging him to stop and give up he started getting serious so I gave him my phone and went to make sure riley (sic) was okay because he had woken up. I feel fucking horrible … He saw shit he didn’t like so he started going crazy kicking shit around the house and hitting me. He then got a knife out and was saying he c (sic) was gonna (sic) slit his throat if I didny (sic) remain calm and stop screaming and if I call the cops somehow or if they get called by someone else he will make me watch him slowly kill himself. He then changed and went into apologetic mode and started trying to hold me and kiss me but I obviously didn’t want to. Everytime I rejected him he would get made (sic) and say what you can fuck my best made (sic) and kiss him but you can’t with me. And he would start hitting me and shit again. But I wasn’t allowed to cry or yell out. So I tried calming him down and he made me cuddle and kiss him. I just wanted to protect myself for rileys (sic) sake. Then he asked for sex and I begged him not to make me do that.. And he got angry of course and started up again. Then forced me to the bedroom and told me he is gonna fuck my mouth and “pussy” no matter what I say. That if I could do it with other guys I have to do it with him. Then got naked and started trying to force me… Then said I had to stop crying again and enjoy it or I would die. So … I had to have sex with him. And I hate myself for it. Then after he was done he got up and tried to sorry (sic) out our feelings and see if we could be together. … and eventually left. I haven’t stopped crying since.[27]
[26] See D3.
[27] Exhibit P3.
The complainant gave evidence that at about 11am the next day the accused rang her and asked if she would like to go to the park with him and their son Riley, to which she responded ‘you’ve got to be kidding me, just leave me alone and I don’t want to speak to you or see you again’ and asked for him to just leave her alone. At that the accused became angry again, telling the complainant that she was fucked, and that he was going to come and finish the job, burn her house down and kill her.
The complainant said that she panicked, packed as much as she could into her bags and put them and Riley in the car, ‘and just fled’. She initially drove towards the accused’s father’s house for help, then messaged the accused’s grandma who then rang her. Later that day she went to her mother’s house who contacted a social worker, and as a result of that the police arrived at her house and became involved.
That concluded the complainant’s evidence in chief.
The complainant was cross examined in great detail. She was taken through each of the events in great detail, and a number of further events and matters were raised with her. I will not recount all or even most of the extensive detail that defence counsel took the complainant through, concerning all aspects of their relationship, their activities and their friends and family. I have had regard to it all. I also have regard to all the specific matters raised by defence counsel with the complainant.
I mention some of the key further matters and events raised by defence counsel with the complainant.
The complainant agreed that she had briefly got back together with Michael in January-February 2013 but then ended it as she still cared for the accused, was pregnant to him and wanted to give them a chance.[28]
[28] T 96 and 99-100.
Defence counsel raised with the complainant an assault committed by the accused on the complainant in early 2013. The complainant explained that on 3 February 2013, at a time when they were apart, the accused found out that the complainant had got back together with Michael, and one night the complainant awoke to find the accused going through her phone, whereupon there was a confrontation and he hit her and spat on her and she fell injuring her back. The accused was charged with assaulting her and placed on an intervention order restricting contact with the complainant.[29]
[29] T 100-105, 108.
She agreed that on the accused’s court return date of 14 February 2013 she agreed to relax the intervention order so that there could be contact between them, although terms that he not harass, intimidate or assault her remained.[30]
[30] T 109.
The complainant said that the accused’s friends Page, Brook, Chloe and Kayla never seemed to like her, sided with the accused and although she never had any direct problem with them they were all against her relationship with the accused. She did not know what the accused told them about her, particularly when she and the accused would fight and the accused would go and stay with one or more of them. She said that eventually when her son Riley was born in August 2013 the accused cut them out of his life.[31]
[31] T 111-113.
She repeated her evidence in chief that over the period after February 2013 the trigger for the accused to threaten her was when she refused sexual activity with him, which would happen on a regular basis.
Due to the February 2013 incident the complainant qualified for accommodation available to victims of domestic violence, and at a time when they had split up she moved to such accommodation, possibly around May 2013.[32] That was the Andrews Farm address. The accused soon discovered where that was, although the complainant did not know how, and the incident with the accused calling from a place, threatening her, and requiring to be picked up occurred about a week after she moved in. She repeated her earlier description of that incident.[33]
[32] T 115.
[33] T 120-121.
The contact continued on and off through to Riley’s birth in August 2013. Following the birth, after a week at her mother’s she returned with Riley to live at the Andrews Farm address.
With the birth of Riley, the complainant said that in September 2013 she and the accused officially got back together, each saying that they wanted to make it work. The accused was not meant to be at the Andrews Farm address due to it being domestic violence accommodation, so the complainant and the accused kept his presence there secret.
The complainant said she did not like doing that, so in March 2014 they moved into a private rental house in Modbury.
The complainant was cross examined about the circumstances whereby shortly after they moved in to the Modbury rental house, the accused moved out. The complainant described an incident whereby the accused became very angry, threw a coffee table across the room, and then told the complainant that unless she gave him oral sex he would kill her. Because of that incident, he moved out.[34]
[34] T 129-130.
The complainant said she stayed in the Modbury house with Riley until June 2014. She said that although arguments would occur and more things happened, there was contact with each other on an on again off again basis until August 2014, at which time they ‘officially ended it’. She could not recall the specific reason for that final particular break-up.[35]
[35] T 131, T 133.
The complainant was then cross examined about an incident with the accused occurring in September 2014. At that time she was living with Riley in a further domestic violence house in Paralowie. On and off again contact had resumed. She said that the accused would simply turn up there without notice and, fearful of his aggression, she would let him in whereupon he would go through the house to see if anyone was there, and go through her phone.[36]
[36] T 136-137.
The complainant described the occasion in September 2014. The accused was in her house and again wanted to look at the complainant’s phone. She tried not to let him and they wrestled over the phone. The accused hit her over the back of her head, kicked off her screen door, threw her bed against the wall and damaged property including her vacuum cleaner, a table and a pot, and took the complainant’s dog. The complainant reported the matter to the police and the accused was arrested, charged and remanded in custody.
Defence counsel suggested to the complainant that the accused was not released from custody until 11 November. She replied that she wasn’t told when he was released,[37] but she thought the accused was let out on bail in September 2014 with bail conditions which after a time she discovered meant that he should not contact her.[38] She said that after that assault on her, she had stopped talking to the accused, and made it very clear that she didn’t want to be with him.[39]
[37] T 135.
[38] T 110.
[39] T 140-141.
In response to further cross examination, the complainant said that in October 2014 the accused kept messaging her and phoning her, telling her he was in a mental hospital because of her and that he was going to commit suicide. The complainant said she had a friend who committed suicide in 2012 so the accused would play on the suicide issue and her feelings about it to try and manipulate her. She visited him in hospital two or three times.[40]
[40] T 139.
The complainant said that after he was released from the mental hospital the accused came to her house a few times, asking her to get back into a relationship with him, but she said no.
The complainant was then cross examined in detail about her contact with Mr Darling, and the events of 24 and 26 November 2014. She was asked in great detail why she did or did not react as she did in response to each stage of her contact with the accused.
She answered all the questions in a seemingly forthright and straightforward way, broadly consistent with her evidence in chief, providing more detail, explaining her responses, her reasoning, why she called who she called, why she said what she said, who she complained to and why, where she went afterwards and why, and telling how she tried to deal with the accused at every step of the proceedings, including how she tried to diffuse the situations, calm the accused down, and ultimately why she capitulated to his threats and demands for sex. She said she cried throughout both the oral and the vaginal sex.[41]
[41] T 188.
The complainant was cross examined about the allegation of the accused threatening her life comprising count 1 in the information, and asked about the event in more detail. She said that when he held the knife it was just centimetres from her neck while he was yelling threats at her, saying a lot of things to her including that that he was going to slit her throat, that he was going to slit both their throats, and that he was going to kill her. She said that she initially froze, then after a time she was able to somehow calm the accused and as he started to lower the knife she was able to grab it by the blunt side of the blade and throw it onto the counter.[42]
[42] T 169-176.
The complainant was cross examined as to how and why the matter was reported to the police:
QYou said that you stayed at your mother’s for a few days.
AYes, for about two nights.
QTwo nights. What was it that caused you to report it to the police.
AThe – my mum. I told my mum and she was terrified for me, so she knew I wasn’t going to call the police so she told my social worker, my domestic violence – she called up them. My social worker wasn’t in, so she talked to the head lady there. After she told her what had happened she said that it is mandatory she has to report it to the police. So she sent an email to the police and then Friday when I was at my mum’s they rocked up at my mum’s house and they said that they are there to help me and that they want to arrest him just to keep me safe and they need to know what happened.
QWhy didn’t you want to report it to the police.
AI was terrified he was going to kill me.
QWhy were you terrified he was going to kill you.
ABecause he told me he would and he also told me that he knew people outside of gaol that would come after me if I did report it to the police. [43]
[43] T 201.
The complainant was cross examined as to what she told the accused’s father David Mrkela about what happened, and she responded:
ABriefly I remember telling him that Josh – I didn’t want to have sex with Josh and he made me have sex with him, that he broke into my house and that he wanted to stay over that night and I kept telling him that he can’t stay over, that my dad’s coming over and I remember saying there was a knife involved, that’s what he used to make me have sex with him. That’s all I remember. Didn’t go into huge detail.
The complainant agreed she gave a number of statements to police, including an initial 18 page statement on 30 November 2014.[44]
[44] T 207.
She said that prior to that, while she was still at her mother’s house, she had briefly told attending police what had happened, and she was cross examined about that initial contact. She said she could only remember some of what she told them at that initial stage. She agreed some of what was put to her, and indicated she did not recall some other aspects. She said she told police that the accused restrained her in the bedroom rather than restrained her and took her into the bedroom. She denied the suggestion that she told the police that the accused had both vaginal and anal sex with her.[45]
[45] T 209-210.
The complainant was further cross examined about what she said to the accused’s father Mr Mrkela. She agreed she had said that she had been held hostage. She said she told him that that had been two days before the rape, not that it had been for two days duration. She said she talked more to Christina, Mr Mrkela’s wife, as she seemed more understanding.[46] It was put to her by defence counsel that she had told Christina that it was the police who told her that what had happened was in fact rape, and she replied:
QDid you say words to the effect – you didn’t say Josh raped you but police told you it was rape.
AIt was a time when I had a struggle accepting that I had been raped. I thought rape had to be done by a stranger, the typical things I’ve heard on TV and stuff like that and I told him, I’ve said ‘the police told me that what he did was rape’ and I said that it’s not just me saying it, like I’m not just coming out with it, the police actually confirmed that it is rape.
[46] T 211.
She agreed she said to Mr Mrkela that just because she was on top of the accused it did not mean that it was not rape. She denied that she told Mr Mrkela that ‘he did it at the back’ and had not done it that way before.[47] She agreed she also met Mr Mrkela at a later time at Woolworths. She had been in hospital for bleeding, which the doctors had told her may have had something to do with the rape, and that she had a Band-Aid on her arm from a needle she may have had at hospital. She agreed that Mr Mrkela wanted to talk about Riley, but denied counsels suggestion that he offered to financially support her and Riley, or that she said the blood was from her ‘backside’.[48]
[47] T 212.
[48] T 214-215.
The complainant was asked about a matter in her initial lengthy statement to police which she subsequently corrected, essentially about the physical movements when the accused was having vaginal sex with her, whereby she said that at the time the first lengthy statement was first brought to her to check and sign her son was with her and constantly screaming, so she did not read it as completely as she should have, however she corrected the point in later statements. She said that the officer may have misinterpreted her when originally compiling her first lengthy statement.[49]
[49] T 217.
The complainant was asked about when she had last had sex with the accused, prior to the evening of the alleged rape, and she said that it was before Riley’s birthday in August 2014.[50]
[50] T 224.
It was put to the complainant that on the morning of 27 November 2014 she told Mr Darling that Josh had cancer and she did not wish to see him behind bars, and she replied that at the time she thought her father may have had cancer and there may have been some reference to that.[51] The complainant was cross examined about her message to Mr Darling making reference to the accused hitting her and she said that while she did not remember her messages, she did not remember the accused hitting her. She replied that she didn’t mean actually hitting, in fact he was being aggressive, throwing things around and getting in her face and admitted that her use of the word ‘hitting’ to Mr Darling was an exaggeration, although she did remember the accused shoving her, pushing her and being rough with her, and grabbing her shoulders and pushing her down when they were in the lounge room.[52] She explained that when she told Mr Darling that the accused forced her in the bedroom she was describing how the accused threatened her if she didn’t come into the bedroom.[53]
[51] T 227.
[52] T 227-231.
[53] T 232.
At the conclusion of cross examination the complainant denied the following series of propositions put to her by defence counsel; that she repeatedly told the accused that she had been raped by Michael, that she was the dominant one in the relationship with the accused and would order him around and tell him what to do, that she would use sex to manipulate him, that on the night in question the accused only threatened to hurt himself and never once threatened her, that everything was consensual without any force or tears, and that the accused did not try to trick his way into the house.[54] The complainant also denied the suggestion that she had put Mr Darling up to ‘trolling’ the accused.[55]
[54] T 235-238.
[55] T 268.
In re-examination the complainant was asked about the meeting with Mr Mrkela at the shopping centre, and the complainant said that it had come about as he had asked her to meet him to discuss her son Riley, but when they met Mr Mrkela told her that he wanted her to drop the charges as he felt that would be best for everybody, warning her that the accused was only going to get angrier if ‘she (kept) him in there’. She reported that to the police as she felt threatened.[56]
[56] T 269.
The next witness was Constable Ashworth, a uniformed patrol officer at the time of the alleged offences. Constable Ashworth first attended the complainant on Friday 28 November 2014, conveying her to the Salisbury Police Station to compile a Police Incident report. She said she began obtaining a statement before detectives told her not to bother as they would do so. She was cross examined in detail as to what the complainant told her. She said the gist of what the complainant told her was that a couple of days previously her ex-partner had attended her address and had held a knife to her, and had then raped her.[57] She compiled the report partly from memory of the brief account the complainant had told her earlier at the door of the house and partly through asking the complainant to reiterate certain dates or other detail.
[57] T 263.
The constable said that she recorded that the complainant had been at her home address at Paralowie and heard knocking on her front door. She believed it was her neighbour and that the dogs had been let out. She looked outside and saw the dogs outside and went out to get them. After she returned inside she found her ex-partner in her home and he held a knife towards her, made verbal threats towards her and made her go into her bedroom where he forced sexual intercourse on her. Constable Ashworth said that the complainant became emotional at that point and started shutting down, and so she started asking for certain details to get yes/no answers which the complainant gave, indicating in response that he raped her penis to vagina and penis to anus, she later fleeing from the house.[58]
[58] T 264-265.
The next prosecution witness was Detective King, an officer who was tasked to this matter on Friday 28 November 2014. He facilitated a medical examination and DNA concerning the complainant.
The next prosecution witness was Mr Darling. He gave background information as to his contact with the accused and the complainant, and also gave evidence as to the various tendered Facebook messages between himself and the complainant between the 24th of November and the early hours of the 27th of November 2014. He gave evidence of a message whereby he indicated to the complainant that maybe he should not have ‘trolled’ the accused the night before the events in question. That message was tendered as P4. He explained that he and the accused were mates and were part of an online community whereby they would ‘troll’ each other, which he explained was messaging another to try and get an emotional response, which was not regarded in that online group as anything that was a big deal. He said that the complainant had not put him up to doing that.[59]
[59] T 274-280. Repeated in re-examination at T 291-292.
In cross examination he explained that he thought he had been good enough mates with the accused that the trolling wouldn’t matter, and the message might indeed have been to the effect that he had had oral sex with the complainant. He said it had been said jokingly, and that as they often talked openly about girls and so on it wasn’t a big deal. He agreed he had subsequently messaged the complainant, no doubt in light of what had happened, a message ‘Maybe trolling him last night wasn’t the best idea’. The messages were tendered as D1. [60]
[60] T 280, T 284-285.
The final prosecution witness was police investigator[61] Horjus. She gave evidence as to the accused’s phone number, and through her Vodafone incoming and outgoing call records were tendered as P5 and P6.
[61] A ‘police investigator’ is an officer working in the CIB who is not yet a ‘designated detective’; see T 293.
Agreed facts were then submitted. They were as follows:
1. At all relevant times the accused’s mobile phone number was 0416 *** ***
2. At all relevant times the complainant’s mobile phone numbers were 0451 *** *** and 0410 *** ***.
3. The towel depicted in photographs 9 and 10 of Exhibit P1 was seized by police and presented to the Forensic Science Centre for DNA analysis. Several areas of the towel gave a positive reaction to the presumptive test for semen. One of these areas was sampled and high levels of sperm were observed confirming the presence of semen. A statistical weighting of greater than 100 billion was found in favour of the accused being a contributor to sperm found in the sample.
4. A medical examination of the complainant was conducted at the Women’s & Children’s Hospital on 28 November 2014 approximately 49 hours after the alleged incident.
An external examination was conducted without magnification and was found to be normal; the internal vaginal examination with a speculum was found to be normal; the internal examination revealed no injuries; the cervix was visualised and no injuries were identified; no injuries were noted upon a general physical examination.
5. It is agreed that sexual assault does not necessarily result in physical injuries. A normal physical examination is a neutral finding that neither confirms nor refutes the allegation made.
The defence case
The accused gave evidence on oath and called several witnesses.
The accused was the first witness for the defence.[62] He gave detailed and extended evidence as to how he met the complainant, through who, and provided extensive detail as to many aspects of their relationship. For some attempt at brevity, I will not set out the detail of all that evidence, however I have had close regard to it all.
[62] From T 305.
I will mention some aspects of it.
The accused said he and the complainant were 17 when they first met and that they had chemistry and the relationship soon became intimate, he asking her to become his girlfriend on 31 October, about 2 weeks after they had first met.
Not long after, during a time when he was living at his grandmother’s house, he said they discovered that the complainant was pregnant, and they signed a lease for a rental property and moved in. At this time he was 18 and she was 17.
The accused said that a week or two after they moved in the complainant ‘started acting weird’, and he became under the impression ‘she wanted to be with her ex-boyfriend Michael …’ The accused said that he felt she was bringing baggage to the relationship and he became paranoid that she was seeing Michael behind his back. [63]
[63] T 308.
The accused said that in the two weeks that they lived together, the complainant told him some negative things[64] that Michael had done to her, and he had decided he did not like Michael, that he hated him, that he wanted to punch or hurt him, and said that he had become paranoid that the complainant was cheating on him.[65]
[64] I will not repeat those things in these reasons as they are hearsay allegations about a person not involved in the trial and as such it would be unfair to repeat them in this published judgement. I have however had full regard to them insofar as they are relevant to the issues at trial. Hence I refer to the allegations as ‘negative things’ without further particularisation.
[65] T 312.
He went on to describe the complainant getting upset during part of a conversation they had as they were driving along one day. He said she told him that she did not think they could be together. At that, the accused said he got very angry and started calling her names and punching the glove box until it started splintering into his knuckles causing them to bleed, and that their relationship ended at that time, which was around January 2013.[66]
[66] T 310-311.
The accused gave evidence that he got back into a relationship with the complainant some time later, which would have been two to four months after he had first met her.
He said he constantly asked her what she had done with Michael, and that he asked repeatedly because he thought she was lying. He said that she eventually told him negative things that Michael had done to her, as had another named friend of Michael.[67] The accused said he got the complainant’s phone from her, and that after he saw texts about these events he became emotional and was on the verge of a panic attack.[68]
[67] T 315-323.
[68] T 315.
The accused said that he had remained in the rental property after the complainant had moved out, however he said she kept telling him she would move back in but that ‘I eventually realised she was lying’. He said that he was getting very skinny and mentally ill. Therefore he got others to move in with him, his cousin Jayden at first and then his friend Paige Redmond. The accused said that by that time he was back in a relationship with the complainant.[69]
[69] T 327.
The accused described an incident at that unit whereby he found the complainant texting Michael, and when the complainant said it was about her car he ‘automatically thought bullshit’ and when she did not comply with his instruction that she stop texting and put her phone away he ‘… immediately lost my temper and got heaps angry and I sprung up from the bed and I said – I think I said “I’m going to kill you fucking cunt” ’. He said that was the only time he had threatened to kill the complainant, although he agreed that he had threatened to harm himself ‘all the time’, and threatened to kill himself a ‘couple of times to her’.[70]
[70] T 328.
Then the accused gave evidence about another occasion at the unit when the complainant told the accused she had broken up with Michael. He said he waited until the complainant went to sleep, whereupon he took her phone and searched through it to ‘see if she’s been telling me the truth’, locating messages indicating that the complainant and Michael were still together. He said that at that he became furious and ‘so mad it’s not even funny that she betrayed me like this’. At that time the accused said his cousin Jayden entered the house through a window, slipped and fell, waking the complainant up. He then confronted the complainant ‘this time shaking like I can’t control myself’. He said ‘she won’t tell me the truth, she just keeps denying things and the more she denies it the angrier I just become because she’s not telling me the truth’. The accused said that he then spat in the complainant’s face. The complainant was trying to grab her phone back, and in the course of both trying to get the phone he knocked the complainant over. The fracas continued and the accused picked up a 20 kilo weight and threatened to smash the complainant’s phone with it. He said that he then smashed the complainant’s phone because ‘she kept lying’. The altercation proceeded and some time after that, he picked up ‘a margarine’ and threw it at the complainant. The complaint went to leave and the accused yelled ‘fuck you, you fucking bitch’, picked up the smashed phone, followed the complainant outside and threw it after her as she drove off, yelling ‘here, have it back you fucking bitch’.[71]
[71] T 333-334.
The accused said that at some stage during all this he slapped the complainant once or possibly twice.
The accused agreed that he was charged with assault and property damage, that it went to court and an intervention order was made, but he ‘didn’t really remember’ whether he pled guilty to the charges. [72]
[72] T 336.
The accused said he got back in a relationship with the complainant ‘shortly after that happened’ and even before he went to court for assaulting her and damaging her property, which was on Valentine’s Day 2013. After that, he said the relationship was on and off, and they would argue all the time, due to the trust issues that he had with the complainant.[73]
[73] T 337-339.
The accused said that at some stage, he could not remember why, he moved out of the unit, and moved in with Paige, then after that he moved in with the complainant at her house at Andrews Farm. He said he found out where the house was because there was no-where else they could have sex. He said the complainant took him there.[74]
[74] T 340.
The accused said that by the time Riley was born he was living with his grandmother, but shortly after that he moved back in with the complainant at Andrews Farm as they wanted to make things work. They kept it secret because none of the family or his friends liked the complainant or approved of the relationship, and they were living in a domestic violence house. He said he lived there for six months. He said that both before and after Riley was born, whenever they would split up the complainant ‘…would always try to get me back, you know, she would say whatever was needed to say to get me back and sometimes I just went back to her because I was lonely or, yeah, anything.’[75]
[75] T 342.
The accused said that in early 2014 they moved into a private rental at Modbury, where he stayed for several months. They continued to have breakups. On one occasion there was an argument whereby as a result the accused ‘flipped a table in the lounge area’, and a couple of days after he moved to his father’s house. The accused said that a couple of weeks later the complainant told him she was having twins, which he initially thought she had made up because she was obsessive and possessive about him. He therefore went back into the relationship. The accused said the relationship was pretty stable at that time as she ‘was getting treated like a princess again’.[76]
[76] T 345-349.
The accused said that by the time of Riley’s birthday in August 2014, while they were still in a relationship, he was living separately. After the birthday the accused said that his relationship with the complainant was on and off again.
The accused then described an incident that he said occurred about two months after Riley’s birthday in August 2014.
The accused said that he ‘rocked up’ to the complainant’s house in the early hours of the morning. The complainant let him in whereupon he then saw her texting and demanded to know what she was doing. When the complainant would not show him or give him her phone, the accused got angry, thinking that ‘she’s cheating on me again’, and tried to physically take the complainant’s phone. The accused said that he yelled at her, called her names and slapped her. The complainant grabbed Riley and ran out of the house. The accused closed the screen door and kicked it off its hinges, tilted the complainants bed on to its side and ‘I reckon I might have gone into the kitchen and kicked a couple of things around’. The accused said that due to some previous events concerning the dogs, he also thought that the complainant was going to kill his dogs or let them out, so he took the dogs, including the complainant’s dog.
The accused gave evidence that as a result of those events he was charged with, admitted and pled guilty to the offences of property damage, assault and breach of an intervention order.[77]
[77] T 359.
The accused gave evidence that there was possibly another time when he also used violence towards the complainant, then indicating after an adjournment that there were no other times.[78]
[78] T 360-361.
The accused said that after the incident just referred to, he was quite mad at the complainant for ‘her being promiscuous behind my back’, so they didn’t speak for about a month. The accused said that he started having a breakdown in late August, leading to him being hospitalised for about two weeks in Woodleigh House, possibly in late October, ‘for psychiatric help’.
The accused said that contact continued with him messaging or calling the complainant every day, and with her visiting him on several occasions.[79]
[79] T 363-364.
The accused gave evidence that when he got out of Woodleigh House he is not sure whether he was still in a relationship with the complainant, however he continued to have sex with her, and did so ‘a decent amount of times’.[80]
[80] T 365.
The accused then gave evidence about the events of 24 November 2014. He said he had received a message from Mr Darling saying he had received oral sex from the complainant, and had received a couple of phone calls from another male ‘on a private number’ saying that he had been having sex with the complainant. Therefore the accused repeatedly called the complainant, wanting to know what was going on, but she did not answer him, and ‘kept ignoring me’. The accused then said that he could remember that at that time he and the complainant were in a ‘trial period’.[81]
[81] T 367.
The accused said that, while it might have been his imagination, he thinks she may have picked up once and said she was at Michael’s, which ‘made me more furious’.[82]
[82] T 367-368.
The accused said that as a result he drove towards the complainant’s place to speak to her, and on the way noticed the complainant’s car, so he followed. Then he saw the car turn in a direction away from the complainant’s house, so he started sounding his horn at her. He then saw that the complainant seemed to be texting. The accused signalled the complainant to pull over and called out for her to do so. The complainant did not comply so the accused thought ‘something is really up’ and said that he was getting ‘weirded out’ and ‘I eventually get fed up’. Therefore the accused turned into the oncoming traffic lane, overtook the complainant and stopped in front of her, to force her to stop.[83]
[83] T 370.
The accused said he got out of the car, approached the complainant’s car and asked her to pull over and told her that he wanted to speak to her ‘…and obviously I didn’t say it in a nice like peaceful tone….’ The complainant agreed to speak to him so they both pulled their cars over into the parking lane.[84]
[84] T 371.
The accused said he got into the complainant’s car, and they argued about what he had done. The accused confronted her about Mr Darling and the other calls he said he had been receiving, and the complainant said she didn’t know what he was talking about. He then demanded to see the complainant’s phone, which she refused. The accused said he therefore knew that the complainant had something to hide and he started yelling and swearing at the complainant, calling her names and tried to snatch her phone. The complainant started crying which ‘I just assumed she was crying out of guilt because she felt guilty about probably what I thought (sic) betraying me’. The accused said that after about 10 minutes argument he said ‘I’m not going to leave until I see the phone’ and the complainant eventually gave it to him. At some stage he told her to drive and as they drove he checked the complainant’s phone messages.[85]
[85] T 374.
The accused denied that he threatened the complainant at any stage of these events.[86]
[86] T 376.
The accused said that he located messages on the phone indicating that the complainant and Mr Darling were ‘sort of conspiring against me’ to upset him, so he tried to jump out of the car, and also threatened to kill himself later in the day at some secluded area.[87]
[87] T 377.
The accused said that the complainant was by that stage ‘crying even more than before’ which he interpreted to mean that she was ‘guilt ridden.’ So he then said he was going to kill himself later in the day, which he told the court he was actually planning to do.[88]
[88] T 379-380.
The accused said that he asked to be returned to his car, which the complainant did. He said that while he had raised his voice to the complainant, sworn at her, called her a lot of mean things, had said a lot of mean things to her, and had threatened himself, he ‘never threatened her with violence once’.[89]
[89] T 380.
After she dropped him back to his car, he said he felt bad, so he returned to her car and said he was sorry and that he had not wanted it to end on a bad note. The accused then said that he decided to implement his suicide plan, and decided to ring his father to ask for $50 to purchase petrol to drive to a secluded place to kill himself. As it was a long drive from Para Hills West to his father’s place at Taperoo to get the $50, and that he might be lonely along the way, he called friend Brook Redman to come with him. The accused’s grandmother confronted him due to what he assumed the complainant had told her, however he picked up Brook and the accused drove to his father’s place in Taperoo, but Brook convinced him not to kill himself.[90]
[90] T 382.
The accused said he did not recall what happened on the 25th of November.
The accused gave evidence that on the 26th of November he went to the complainant’s house at between 9 and 10pm ‘just to see her’. He agreed he had not been invited. When he got to the house he said he saw the dogs roaming the street, which he assumed the complainant had done ‘just to get back at me somehow’. He said he knocked frantically and called out that the dogs were out.[91]
[91] T 385.
The accused said that the complainant came out and collected the dogs. He said he saw that the roller door was a foot open, and then thought the dogs had got out themselves. The accused entered the house, and searched every room of the house for the complainant’s phone and to check whether anyone was there, as he was suspicious that someone might jump out at him as he was suspicious about whether the complainant was having sex with Mr Darling or ‘just any male in general’.[92]
[92] T 389.
The accused explained that he and Mr Darling had been members of an ‘underground bodybuilding community of steroid users’ who would jokingly ‘troll’ each other, but not about each other’s partners and it was never a joke if it was about partners.
The accused located the complainant’s phone but she snatched it back from him. That made him angry, and they argued, he asking her what she was hiding from him. He made accusations and she denied them. Voices became raised. The argument proceeded for about 20 minutes, and it woke Riley. The complainant went to feed Riley, and the accused said he followed, still asking for her phone. The complainant then gave him the phone, as, he assumed, she did not want to be arguing in front of Riley. The accused then stood in the hallway, going through the complainant’s messages. He said he did not find anything of concern.
The accused said that the complainant approached him and said that the accused was not looking in the right place on the phone, and that she would locate and show him what he was looking for. He said the complainant located and showed him messages between her and another person named Luke talking about how they were pregnant to each other and that she wanted to keep the baby, and about her and Luke having sex. The accused said that he became chilled out and not mad with her because he thought that for once in their relationship she was telling him the truth, and he suddenly had a lot of respect for her.
The accused said he discussed it with the complainant, who told him she thought the child was probably the accused’s.[93]
[93] T 393.
The accused then felt that they had been making progress in their relationship, and talked about various things.
Then the accused asked the complainant for sex, and she replied that she didn’t want to have sex, but that she would rather give him oral sex, to which he replied that he did not want that. The accused gave evidence ‘yeah, you could say I pestered her a little bit, maybe even begged her a little bit, for sex.’ The accused said he asked the complainant why she did not want to have sex with him and would rather have oral sex to which she replied she didn’t have condoms, but he argued that did not matter if she was pregnant, but she still said ‘not tonight’.
The accused said that then ‘I sort of get almost mad’, and an argument ensued, wherein he said to the complainant ‘if you can have sex with other people, why can’t you fuck me?’, and ‘fuck off’, and eventually he said to her ‘All right, fuck you then, I’m going home’. The accused also said ‘I probably called her names like ‘fucking cunt’ or ‘fucking bitch’.’[94]
[94] T 396-397.
The accused said he went to leave and as he walked out he picked up a wooden broom handle and started striking the complainant’s car with it, ‘to provoke a reaction that I was in fact mad’. At that, the complainant said to him ‘Josh come back inside’ to which the accused replied ‘Fuck you cunt’ or ‘Fuck you bitch’ and went to strike the complainant’s car again. The accused said that the complainant again said to him to come inside, so he did, thinking that she was going to get serious about their relationship and talk about their relationship.[95]
[95] T 398.
The accused gave evidence that he walked straight into the complainant’s bedroom, and sat in a ‘stressed out position’. He said he neither kicked the front door nor picked up a knife, nor threatened to either harm himself or the complainant that evening, although he had threatened to harm himself with the complainant’s kitchen knife ‘a week or so, five to twelve days or so before this event.’[96]
[96] T 401. The accused described such an event at T 401-405.
The accused then said that he might have in fact threatened to kill himself at one point during the evening of the 26th.[97]
[97] T 405.
The accused said that the complainant walked into the bedroom, closing the door and turning off the light, and he knew that she wanted to have sex ‘or at least do something to me’.[98] The accused gave evidence that the complainant then took down his pants slightly and he took off his shoes, and the complainant took down his jocks and pants, and ‘she then begins to give me oral’ which went on for 5 minutes. The accused said he became bored and so he moved on the bed and lay down whereupon the complainant got on top of him and put his penis in her vagina. He said they had sex for 5 to 10 minutes, with the accused doing the thrusting. The accused told the complainant he was about to ejaculate and she ‘reminded’ him not to ejaculate inside her so and he pulled out of the complainant and ejaculated on his stomach. The complainant got off him and went to the bathroom.[99]
[98] T 407-408.
[99] T412.
The accused said that he noticed that the complainant was having a shower and asked her what he could wipe himself with, and was given a towel. He then got dressed and got on to Facebook via his own phone. The complainant then returned and got dressed, and they talked about getting back together. He told her he loved her and that he would speak to her the next day, and he left.[100]
[100] T 413.
The accused said that he could not remember calling the complainant the next day, or speaking to her again, and he left Adelaide with his friend Chloe and her daughter and took a trip to Port Pirie that had been planned earlier.
The next he knew about the events of the evening was when police arrested him in Port Pirie.
The accused was cross examined.[101] While for the sake of brevity I do not repeat it, I have had regard to it all.
[101] From T 417.
The defence then called Leah Kendle, the accused’s grandmother.[102]
[102] T 472.
Ms Kendle gave evidence of her knowledge of the accused and the relationship between the accused and the complainant. Her impression was that it was always ‘lovey dovey’, with them laughing and joking together.[103] She told of occasions when she observed the complainant asking the accused to do various things, and she described events over time. She said that the complainant never appeared scared of the accused, rather it was the other way around. Much of her evidence was impressionistic and at times it was unclear whether she was giving evidence of what she saw, what she had heard or been told, or what she assumed. She did say that shortly before these events ‘blew up’, the complainant rang her concerned about whether the accused was going to kill himself. She said there was never any occasion when the complainant said she had been held hostage, but the complainant would complain to her that the accused would get angry with her because she would not let him check her phone, or because of the text messages on her phone. She said that the accused showed her a text message apparently from the complainant that she had gone around to Michael’s and something had happened[104]. I have regard to all of her evidence.
[103] T 474.
[104] For reasons earlier footnoted I do not repeat the detail of the message.
In cross examination Ms Kendle admitted receiving the messages the complainant said she had sent to Ms Kendle after the alleged offending, but added ‘but she was always sending me dooby messages’[105]. Ms Kendle then denied receiving a series of specific texts and messages from the complainant after the alleged events, then in the space of a few more lines agreed she had had the conversations suggested.[106] Ms Kendle denied she was ever aware of violence by the accused towards the complainant, but then when the accused’s court appearances for that conduct were put to her admitted she was aware of it ‘after it went to court’.[107] Then, after further matters were put to her, she finally conceded that she was aware of the history of violence by her grandson against the complainant.[108]
[105] T 485
[106] T 486.
[107] T 487.
[108] T 488.
The defence called Christine Mrkela, the accused’s stepmother.[109]
[109] T 491.
Mrs Mrkela also gave evidence as to her impressions of the relationship between the accused and the complainant. She gave evidence that after the incident the complainant came to her house on Thursday the 27th just before 12 o’clock and told her what had happened, saying:
She said that she - she said that she was kept hostage for the last two days and she told me that Josh did all sorts of things to her like threaten her ….. she said that he had forced sex with her. She used the word rape as well. Like she was telling me all these things like, you know, in a hurry just to – sort of let everything out. [110]
[110] T 493-494.
In response to further questions Mrs Mrkela said that the complainant had said that the accused had threatened her with a knife and ‘had said, like, backside’, which she Mrs Mrkela assumed referred to anal sex. Mrs Mrkela said her husband David arrived home but had to leave and go back to work. She said that the complainant had said that Josh had also smashed the front door. Mrs Mrkela then said that this was the only occasion that the complainant ever discussed the incident with her, however moments later she said that she discussed it again with her a week later, with both her and her husband.[111] She said that a week later the complainant said ‘That Josh rape her, and backside, and rape’.
[111] T 495.
In cross examination Mrs Mrkela agreed that English was her second language but she denied that she may have misunderstood that the complainant was telling her that she had been held hostage two days previously instead of for two days. [112] She agreed that she knew that a police officer had said that the complainant had made an anal sex complaint but denied she was fashioning her evidence to support that.[113]
[112] T 497.
[113] T 498-499.
Mr Mrkela, the accused’s father, gave evidence.[114]
[114] T 500.
He also gave evidence about his son and the relationship with the complainant. He said that he had a close relationship with the complainant and that ‘she was like a daughter to me’. He said that throughout the relationship they got on very well and he would see her regularly, and he would often look after Riley. He said that he never saw her scared of his son and his son never said a bad word about her.
Mr Mrkela said that on a Thursday in December 2014, at about 20 to 12, the complainant rang him wanting to see his wife Christina. He said he asked what was wrong and the complainant told him that the accused car jacked her and kept her hostage for two days and did terrible things, and that he had kicked the door down. He told her to wait and he would come home from work, and that Christina would be home soon. When he got home he said she was happy to see him which he thought was strange, and that he was curious to find or know where the accused was. She had also told him on the phone that the accused had destroyed her house, and ‘where’s Josh’, so Mr Mrkela said he would go and find him and see what the problem was. At that he left and went to the house.[115] When he got there he said he could see no damage to the door, which he could not open.[116]
[115] T 505.
[116] T 507.
Mr Mrkela said he noticed that the roller door was open so he went around the back and checked that the property was secure. Mr Mrkela was then asked where the dogs were, and said that when he opened the roller door, the dogs came running out. Then Mr Mrkela denied that he had, moments previously, given evidence that the roller door was open when he arrived at the property. The transcript plainly shows that he had given that evidence.[117]
[117] T 508.
Mr Mrkela gave evidence that he saw the complainant a week later. He said that she came over and was saying lots of nice things about the accused, and he gave evidence that she did not say anything about what had happened between her and the accused that had got him arrested. Moments later however he gave apparently contradictory evidence, that on that occasion she in fact told him that ‘she got raped backside’, and that she said ‘she went on top of him and she came on top of him’.[118]
[118] T 510 lines 13 to 38, contrasted with T 511 lines 1-31.
Mr Mrkela said he saw the complainant a further time, perhaps 3 or 4 weeks later. He said that he texted her to meet to talk about the family and ‘what’s good for everybody and stuff like that.’ He said he suggested they meet at the shopping centre. He said that when he met her he saw her wearing a band-aid, and she said she had been to the doctors as she had been bleeding inside. When asked where, she said ‘at the bottom, backside’. Mr Mrkela said that to his surprise, although he was not sure what actually happened, the complainant ‘just went off her head, started accusing me, accusing me, screaming or yelling and just sort of stomped off, and I was trying to work out, you know, what happened, you know, what’s going on.’ Mr Mrkela said he did not know what she was accusing him of, and maintained that he had been ‘really nice to her’.[119]
[119] T 513-514.
The defence called Brook Redmond, an old friend of the accused.[120]
[120] T 518.
Ms Redmond told the court that she had known the accused for 10 years. She gave evidence that she had seen him together with the complainant on a couple of occasions, although she was there when the complainant called ‘a lot’. She did not recall observing the complainant appearing to be scared of the accused. On one occasion the complainant attended at the house and beeped her horn.
The final defence witness was Chloe Andrew. She had also known the accused for many years. She gave evidence she had very limited contact with him after his son Riley had been born. She said her contact with the complainant was ‘like very minimum’. She said that from what she saw, the complainant did not appear to be scared of the accused. Ms Andrew said that on about 25 June 2013 just prior to her getting back together with her ex-partner Michael, she got a message from the complainant, and although she could not recall the words used she was ‘pretty sure’ she said he had done bad things to her and she should watch her child around him.
Ms Andrew also said that she recalled a day, which she thought was 7 November 2014, when she travelled to Port Pirie with the accused. She said it was for her deceased father’s birthday, as a remembrance. She said it had been organised about a week previously.
In cross examination she agreed she was a long-time friend of the accused and had come to court to support him. She said the message she had received was a snapchat message which automatically expired and disappeared.
Analysis
The court has closely scrutinised the evidence of the complainant, in particular giving close consideration to everything raised in cross examination and suggested in defence counsel’s closing address.
The court has full regard to each and every aspect of the helpful addresses of counsel, which for brevity I do not set out here.
The court bears in mind that it is for the prosecution to prove its case beyond reasonable doubt, and the accused bears no onus whatsoever.
The complainant gave her lengthy evidence in a straightforward and clear manner. It was consistent between examination in chief and a very lengthy and comprehensive cross examination of virtually everything the complainant said in her evidence in chief. The complainant’s demeanour and presentation were good, although she became understandably and apparently genuinely upset at what one might expect were the most upsetting points of the narrative she was giving.
I address the matters said to represent previous inconsistent statements. I apply the settled law applicable to the analysis of such matters, without repeating it here.
The relatively junior constable who first spoke to the complainant and compiled an initial crime report based on some mix of her recollection of what she had been told at the door of the complainant’s premises and some yes/no answers back at the computer, recorded in that document that the complainant told her there had been, amongst other things, both anal and vaginal sex. The complainant’s evidence in this court was that there was oral and vaginal sex. The complainant denied that she ever told the officer that there was anal sex. In my view it is likely to be an error by the constable concerned, perhaps hearing ‘oral’ as ‘anal’, or mishearing or misinterpreting an upset complainant who was in her words ‘shutting down’. I so conclude.
For reasons soon to be apparent from the Court’s assessment of the evidence of Mr and Mrs Mrkela, I do not accept that the complainant made any of the statements inferential of sex to her ‘backside’, as they claimed.
In the text that the complainant sent to Mr Darling in the very early hours of the morning in question, the complainant told Mr Darling that amongst other things the accused hit her. There were also some other variations between the content of the text and the complainant’s evidence on oath. The complainant admitted that text, and explained that the accused was manhandling her (my words), pushing her, holding her down and threatening her, but that the words hitting she admitted were an exaggeration. The text was made in the very early hours of the morning in circumstances where the complainant was likely to have been very tired, and even on the defence case had been pestered into sex that she had repeatedly told the accused that she did not want to have. The text was a private message to a friend, not on oath and not seemingly in contemplation of these proceedings, given the complainant’s apparent view at that stage that she did not understand the circumstances she had endured to be within the definition of rape. In those circumstances an exaggeration such as this does not in my view adversely affect the complainant’s credibility or reliability. Nor do the other more minor variations.
In relation to these and other more minor matters put to the complainant as to what she previously said, her responses and explanations were credible, convincing and I accept them.
Overall, the complainant’s evidence presented a graphic, upsetting, compelling and in the final analysis credible picture of events. It had the ring of truth, and was palpably believable. As mentioned, she was consistent over very extended cross examination, and the content and presentation of her evidence bore all the hallmarks of truth. The complainant was a good and convincing witness.
Mr Darling was a straightforward and truthful witness.
On the other hand, the accused was, unfortunately, a very poor witness. Whilst the court recognises and makes allowance for the fact that giving evidence can be a stressful and uncomfortable experience, the accused presented very badly. He was agitated, often inconsistent, and many aspects of his evidence were difficult to believe.
For example, the accused’s evidence that on the evening of the alleged rape when he could not find any incriminating messages on the complainant’s phone, that the complainant, after having repeatedly denied having sex with anyone else, approached him and helped him find messages that incriminated her of having sex with another person and being pregnant to them, is inherently unbelievable.
By way of further example, the accused’s evidence that upon being shown messages that the complainant had had sex with, and was pregnant to, another man, he became ‘chilled out and not mad with her because he thought that for once in their relationship she was telling him the truth’, and he suddenly had a lot of respect for her is completely unbelievable. Similarly unbelievable is the accused’s evidence that after finding out that the complainant was having sex with and possibly pregnant to another man, he believed they were making ‘progress in their relationship’.
Much of the accused’s evidence in fact supported the picture that the complainant’s evidence painted of him and the relationship generally, and he admitted and indeed led evidence of the range of angry and violent behaviour and events he had been responsible for, all directed at the complainant over the course of their relationship. He came across as highly strung and obsessive individual.
Ms Kendle was a very unconvincing witness. Her evidence was inconsistent on key issues and she seemed keen at every turn to criticise the complainant, and on occasion add gratuitous criticism to factual answers. She gave the overwhelming impression that her primary motivation in giving evidence was to attempt to support her grandson rather than convey an objective recollection of events to the court.
Mrs Mrkela and Mr Mrkela were also poor witnesses. The language they attributed to the complainant describing the alleged rape events including terms such as ‘backside’ was stilted, unconvincing, and quite unlike the complainant’s mode of speech and impression. The overwhelming impression given was that their primary motivation in giving evidence was similar to that of Ms Kendle.
Further, Mr Mrkela gave flatly contradictory evidence on at least two occasions. The first was, within the space of a single page of transcript, as to whether the roller door was open when he claimed he attended and inspected the complainant’s property, flatly denying that he gave the evidence that he had given seconds before.[121] The second occasion was when he said that when he spoke with the complainant a week later she made no mention at all of the events of the evening the subject of the charges, but then moments later he gave detailed evidence about how she said that she was raped in the ‘backside’, and that she got on top of the accused and came on top of the accused.[122] These contradictions significantly affect the credibility and reliability of the witness.
[121] At T 508.
[122] T 509 contrasted with T 510.
Ms Redmond’s evidence was brief and essentially neutral, throwing little light on events surrounding the charges before the court.
Ms Andrew’s evidence was of little direct relevance to the issues at trial, although it provides a legitimate reason as to why the accused travelled to Port Augusta the day after the events in question.
I have regard to the complaint evidence in the strictly limited way the law recognises it may be used. Subject to the analysis I have made of that evidence, I find that the circumstances of the complaint are consistent with the alleged offending having occurred, and the content of the complaint does not ultimately adversely affect the court’s assessment of the complainant’s evidence.
I treat the evidence of uncharged or prior offending strictly in the limited way the law permits, as context and to explain the nature of the relationship between the complainant and the accused, and to explain why the complainant might react the way she did on the night in question and in particular submit to the accused.
Conclusions
Having closely considered all the evidence, notwithstanding the evidence of the accused and his witnesses, and having closely considered all the evidence and all the arguments of counsel, the court finds the evidence of the complainant to be compelling, credible and reliable, and accepts her evidence beyond reasonable doubt. The court finds the complainant’s version of events established beyond reasonable doubt.
The court turns to consider the three counts in the information.
Count 1
In relation to count 1, the court finds proven beyond reasonable doubt that on the 26th day of November 2014, at Paralowie, the accused deliberately held a knife to the neck of the complainant, as alleged by the complainant, and verbally threatened to kill her. The court finds proven beyond reasonable doubt that those actions comprised a threat to the life of the complainant. The court finds proven beyond reasonable that there was plainly no lawful excuse. The court finds proven beyond reasonable doubt that in all the circumstances the accused plainly intended to arouse a fear that the threat would be or was likely to be, carried out.
The court finds it proven beyond reasonable doubt that the accused used an offensive weapon in the form of a kitchen knife when committing the offence, and accordingly that circumstance of aggravation is proven.
It is an aggravating factor if the accused committed the offence knowing that the complainant was his former spouse. Spouse is defined in the Act as legally married. That was not the case, so this circumstance of aggravation is not established.
The court finds the offence of aggravated threatening life, as alleged in count 1 of the information, proven beyond reasonable doubt.
Count 2
In relation to count 2, the court finds proven beyond reasonable doubt that the accused had sexual intercourse by causing the complainant to perform fellatio on him. The complainant did not consent to this, rather she complied with his demand that she do it, only because he threatened to kill her by retrieving the knife from the kitchen and slitting her throat if she did not. On the facts proven beyond reasonable doubt the complainant had been regularly refusing sex up to the point where the accused threatened to kill her, and then continued to say she did not want to have sex, with the accused continuing to threaten her with phrases like “don’t make me make you do this”. The court finds proven beyond reasonable doubt that the accused must have known and did know in these circumstances that the complainant was complying only because he had threatened to kill her and was continuing to threaten her, and was accordingly not freely consenting within the meaning of s46 of the Criminal Law Consolidation Act.
The court finds the offence of rape, as alleged in count 2 of the information, proven beyond reasonable doubt.
Count 3
In relation to count 3, the court finds proven beyond reasonable doubt that the accused had vaginal sexual intercourse with the complainant. The complainant did not consent to this, rather she complied with this further demand that she do it, only because the accused had threatened to kill her by retrieving the knife from the kitchen and slitting her throat if she did not. On the facts proven beyond reasonable doubt the complainant had been regularly refusing sex up to the point where the accused threatened to kill her, continued to tell the accused she did not want to have sex with the accused and then cried throughout the act of intercourse. The court finds proven beyond reasonable doubt that the accused must have known in these circumstances that the complainant was complying with the act of vaginal intercourse only because the accused had threatened to kill her, did not want to have sex with him but was complying due to his threats and that the complainant was not freely consenting within the meaning of s46 of the Criminal Law Consolidation Act.
The court finds the offence of rape, as alleged in count 3 of the information, proven beyond reasonable doubt.
Verdicts
Count 1 Guilty
Count 2 Guilty
Count 3 Guilty
0
0
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