R v Trinchini - [2015] SADC 63

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TRINCHINI
Criminal Trial by Judge Alone
[2015] SADC 63
Reasons for the Verdict of His Honour Judge Cuthbertson
24 April 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - ATTEMPT - PARTICULAR OFFENCES - ATTEMPT TO PERVERT THE COURSE OF JUSTICE
Defendant charged with two counts of Rape and one count of Attempting to Pervert the Course of Justice.
Verdict: Guilty on all counts
Criminal Law Consolidation Act 1935 (SA) s 48, s 256; Evidence Act 1929 (SA) ss 34M(2), (3) & (4), s 34N, s34P, referred to.

R v TRINCHINI
[2015] SADC 63
Introduction

The defendant stands charged with two counts of Rape, two counts of Unlawful Sexual Intercourse (in the alternative), and one count of Attempting to Pervert the Course of Justice.
The charges are as follows:
First Count
Statement of Offence
Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Simon Paul Trinchini on the 16^th day of August 1998 at Campbelltown, engaged in sexual intercourse with [E] by inserting his fingers into her vagina, without her consent and knowing that she did not consent or being recklessly indifferent to the fact that she was not consenting.
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Simon Paul Trinchini on the 16^th day of August 1998 at Campbelltown, had sexual intercourse with [E], a person of the age of 15 years, by inserting his fingers into her vagina.
Third Count
Statement of Offence
Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Simon Paul Trinchini on the 16^th day of August 1998 at Campbelltown, engaged in sexual intercourse with [E] by causing her to perform an act of fellatio on him, without her consent and knowing that she did not consent or being recklessly indifferent to the fact that she was not consenting.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Simon Paul Trinchini on the 16^th day of August 1998 at Campbelltown, had sexual intercourse with [E], a person of the age of 15 years, by causing her to perform an act of fellatio upon him.
Fifth Count
Statement of Offence
Attempting to Pervert the Course of Justice. (Section 256 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Simon Paul Trinchini between the 20^th day of January 2014 and the 4^th day of February 2014 at Port Lincoln, attempted to obstruct or pervert the course of justice or the due administration of the law by counselling [V] to give a false account to police.
At the time of the alleged offending the defendant was in a relationship with V, who is the sister of the complainant, E.
Elements of the offence of Rape
The elements of the charge of Rape are as follows: [1]
(1)The defendant had sexual intercourse with E. At the time of the alleged offending, both the insertion of a finger into the vagina and an act of fellatio constituted sexual intercourse.
(2)The sexual intercourse occurred without the complainant’s consent.
A person is not to be regarded as having consented to the sexual activity the subject of the charge merely because:
(a)    the person did not say or do anything to indicate that he or she did not freely and voluntarily agree to the sexual activity; or
(b)    the person did not protest to or physically resist the sexual activity; or
(c)    the person was not physically injured in the course of, or in connection with, the sexual activity.[2]
(3)The defendant knew at the time that the complainant did not consent or was recklessly indifferent as to whether the complainant was consenting.
[1] s 48 of the Criminal Law Consolidation Act 1935 (SA).
[2] s 34N of the Evidence Act 1929 (SA).
Elements of the offence of Attempting to Pervert the Course of Justice
Elements of the offence of Attempting to Pervert the Course of Justice are as follows:
(1)The conduct of the defendant had the tendency to pervert the course of justice; and
(2)The defendant intended to pervert the course of justice. It is sufficient if the defendant intended to engage in conduct which had the tendency to pervert the course of justice. It is not necessary for the prosecution to prove that the defendant understood the concept of perverting the course of justice.
Onus of proof
There is a presumption of innocence and the defendant is regarded as innocent unless or until guilt has been proved beyond reasonable doubt.
Burden of proof
The burden of proving the charges lies wholly upon the prosecution; the defendant does not have to prove anything.
Separate counts
The defendant is charged with separate counts and each must be considered on its own merits. A verdict of guilty or not guilty in relation to one count does not necessarily mean that there must be a verdict of guilty or not guilty in relation to the other counts. In particular, I must not reason that because the defendant has committed an offence, he must for that reason be guilty of the other offence or offences.
Complaint evidence
Evidence of a complaint made by E and an elaboration of the complaint has been admitted in the trial. In my view, both the first[3] and second[4] conversation between E and Mr Spencer meet the test of an initial complaint and, as such, I can use that evidence in the following way:
(1)to inform me as to how the allegation first came to light; and
(2)as evidence of the consistency (or otherwise) of conduct of the alleged complainant. It is not admitted as evidence of the truth of what was alleged.[5]
[3] T49-53.
[4] T53-54.
[5] See s 34M(3) and (4) of the Evidence Act 1929 (SA).
The complaint came about as a result of Mr Spencer telephoning E about comments she had made on Facebook.[6] Facebook is a site on the internet where people can put public messages for the benefit of anyone who goes on the site, together with private messages which can be restricted to individuals or groups of individuals (see Peek J in Strauss v Police[7]).
[6] T50-51.
[7] (2013) 115 SASR 90.
Absence of a complaint or delay in making the complaint is not of itself of probative value in relation to E’s credibility or consistency of conduct.[8]
[8] s 34M(2) of the Evidence Act 1929 (SA).
Complaints that are inconsistent with the complainant’s case or that demonstrate inaccuracies may be used to cast doubt on the case put forward by the complainant.
I direct myself that there may be varied reasons why the complainant in a sexual assault offence has made a complaint at a particular time or to a particular person, but that it is a matter for me to determine the significance, if any, of the evidence in the circumstances of this particular case.
Defendant gave evidence
The defendant gave evidence. His evidence is to be treated in exactly the same way as the evidence of any other witness.
Use of screen and court companion
E gave evidence for the prosecution. During her evidence the court was closed, a one-way screen was used and she was accompanied by a court companion. The court further accommodated her by the defendant absenting himself from the court whilst she entered and left the court.
I am to draw no adverse inference against the defendant by the use of a screen, court companion, the closed court, or that the defendant absented himself whilst E entered and left the court.
Forensic disadvantage
In this matter E complained late. As a consequence of this, the police were unable to investigate these alleged offences at the time they occurred.
Whilst there is a slight possibility that the defendant may be disadvantaged by the inability of police to investigate due to the effluxion of time, I note that the defendant has given evidence and admitted the actus reus in relation to both counts.
Given E’s evidence as to her passive reaction to the defendant’s sexual assault, it is difficult to see what, if any, forensic evidence could have been obtained by a timely investigation which would have helped resolve the true issues in this case, namely, consent or lack of consent and belief in consent by the defendant.
Nevertheless, I will scrutinise the evidence of E carefully, having regard to the lack of a timely investigation.
Intoxication
There is evidence that the defendant was intoxicated at the time of the alleged offences.
If the defendant was intoxicated at the time of the relevant events:
(1)    It may make his observations and recollections less reliable.
(2)    It may have caused him to lose his inhibitions and attempt to have      sexual relations with the complainant.
(3)    It may have made him less able to read the signs as to whether or not E was consenting to sexual acts.
I will assess the evidence having regard to these matters.
Uncharged acts
Uncharged acts of a sexual nature were led without objection in this trial of alleged subsequent attempts by the defendant to sexually interfere with E. Those uncharged acts are of so little probative value that I ignore them.
Use of transcript of telephone intercepts
In this matter, transcript has been produced of recorded telephone calls from the defendant in the Port Lincoln Prison to V. I remind myself that the transcript is not evidence of what was said in the telephone calls. The evidence is the sound recordings which are located in the exhibit P3.
Defendant in Prison
I have disregarded evidence that the defendant spent time in prison. It has no probative weight.
Allegations
It is alleged that on 15 August 1998, E was staying the night at her sister V’s house. E had just turned 15 years old at the time. Her date of birth is 2 August 1993. V and the defendant lived at that house with their baby daughter, J. At E’s suggestion, both the defendant and V went out for the night, leaving E at home babysitting their daughter. Both the defendant and V had been drinking since the afternoon that day. At about dinner time they left the house and E stayed home to babysit the baby. At about 10 pm she went to bed in the spare bedroom.[9] She recalls going to bed wearing knickers. Sometime between 12.30 am and 1.00 am on 16 August 1998, E awoke to someone fingering her vagina (count one). She rolled over and saw that it was the defendant standing next to her bed. The defendant had one finger inside her vagina and he started to kiss her and stuck his tongue inside her mouth whilst still inserting his finger into her vagina.
[9] See Exhibit P1.
The defendant then stopped and unbuttoned his jeans, pulling them down to expose his penis. He held his penis with both hands and forced it into E’s mouth, the subject of the second count of Rape.
E then said to him words to the effect of, ‘Get the fuck away’ and to leave her alone. The defendant told E to be quiet. E again told the defendant to ‘Fuck off’. About five minutes later E heard a vehicle pull up out the front and heard her sister V come through the front door. E said that V was yelling at the defendant, ‘Why the fuck did you leave me, where did you go?’ A physical altercation ensued between the defendant and V which resulted in police attendance.
Although police were called that night to the house, E did not report the alleged offending as she considered there were too many other matters to be dealt with.
E did not make a report to police about the sexual offending until 2 November 2013.
After this date the defendant made multiple telephone calls to V from the Port Lincoln Prison, during which, the prosecution says, he counselled her about what to say to police concerning the events which happened on 16 August 1998. This is the subject of the count of Attempting to Pervert the Course of Justice. The prosecution says that he told V to tell the police that there was no opportunity for the defendant to have committed the alleged offences as she arrived home so quickly after the defendant had arrived home.
Defence Case
The defendant asserts that he left the Bath Hotel, where he had been drinking with V and others, by taxi.
He was intoxicated.
He returned home and E told him to keep the noise down.
He went outside for a couple of minutes, then entered the spare bedroom and turned the light on. E was propped up on the bed. He told her what had happened at the hotel and then asked her ‘if she would give me a blowie’[10].
[10] T82.
She said yes, he unzipped his pants, pulled his penis out and she started sucking on it.
She did this for eight or nine seconds and ‘As she was sucking it I asked if she wanted me to play with her pussy’[11].
[11] T82.
The defendant said that:
She said – she didn’t say ‘Yes’. Basically she was shaking her head and saying ‘Yes’ because she had my penis in her mouth.[12]
[12] T82-83.
In cross-examination, the defendant changed that version slightly to say that she took her mouth from his penis to agree for him to ‘play with her pussy’.
At the same time as his penis was in her mouth, he put his fingers in her vagina.
The whole thing lasted for 15 to 20 seconds and stopped when E said that she heard a car.
He did not suggest to V in the phone calls from prison that she should tell police that he had no opportunity to commit the offences after arriving home but before V arrived home, and that was not his intention.
Conclusions
I was impressed by the evidence of E. I formed the distinct impression that she was telling me the truth. Her failure to report the incident to the police on the night it happened does not cause me any concern. She would have been conscious of the fact that there was a significant dispute between her sister and the defendant. She would not have wanted to exacerbate that incident. She would have wanted time to reflect to herself about what, if anything, to do about what had happened to her.
When she finally did complain, it was not a complaint made with the intention of getting the defendant into trouble. A Facebook entry was read by Mr Spencer and she was questioned about her concerns. It was only then that the complaint saw the light of day.
In my view, the manner in which the complaint was elicited demonstrates some consistency and no lack of consistency with her story.
On the other hand, the evidence of the defendant carried little conviction.
In the first place, his account of the incident described a situation with a complete lack of reality. I do not accept that he came into E’s room and, with no preliminaries, and asked ‘if she would give me a blowie’[13]. I do not accept that this 15-year-old, without any pre-warning, agreed and proceeded to engage in sexual relations with the defendant.
[13] T82.
I do not accept that whilst holding the defendant’s penis in her mouth, she nodded agreement to him sexually interfering with her vagina or that she removed his penis from her mouth and agreed to him sexually interfering with her vagina.
My views of the credibility of the defendant are confirmed by the following matters.
I accept that the witness Byrne was telling the truth when he said that the defendant admitted to him having ‘touched up’ E in the bedroom while she was asleep.[14]
[14] T57-58.
I think that the phrase ‘touched up’ was clearly referring to sexual interference and to that extent the evidence of the witness is independent evidence corroborating the account of the complainant that the defendant’s sexual conduct initially occurred while she was asleep.
Secondly, I reject the explanation of the defendant for what he said in the telephone conversations that were intercepted. In particular, it is quite clear to me that he requested the witness V to tell police that there was no opportunity from when he came home to when V came home for him to have had sexual relations with E.[15]
[15] MFI P4, RN 418304-182-184, 246, 247; RN 418561-136, 138, 144, 208; RN 418634-82.
This was clearly false to the knowledge of the defendant, as he admits that he did in fact have sexual relations in that period.
The intercepted telephone calls, in addition, are evidence that the defendant requested V not to say anything to police.[16] Insofar as count 5 makes no allegation of an attempt to pervert the course of justice by encouraging V not to speak to the police, it is not part of the charge and hence is discreditable conduct within the meaning of s 34P of the Evidence Act 1929 (SA).
[16] MFI P4, RN 418561-168; RN 419940-133, 151; RN 420784-81; RN 420845-15, 33; RN 421542-228.
It was led without objection.
In my view, it is relevant to show that the intent of the defendant in telling V to say that there was no opportunity for him to have sexually interfered with E, was to prevent a proper investigation by the police into that allegation and hence pervert the course of justice.
I have not used it for any other purpose and, in particular, I have not used it as evidence showing the defendant to be a disreputable person and thus more likely to have committed the offence.
The explanation given in cross-examination for the matters said in the phone calls was not believable. I reject it beyond reasonable doubt.
I find that on two occasions on 16 August 1998 at Campbelltown, the defendant engaged in sexual intercourse with E, firstly by inserting his finger into her vagina and, secondly, by causing her to perform an act of fellatio on him, and that on both occasions E was not consenting, on the first occasion partly because she was asleep at the time and that when she awoke, she was still not consenting and because I accept beyond reasonable doubt the explanation of E that she was not in fact consenting.
I have considered whether the intoxication of the defendant may have made him incorrectly assume that she was consenting. I do not consider this to be the case. He claims to have had a good recollection of what occurred. He must have known she was not consenting when she was asleep, and when she was awake he must have realised that there was a real chance that she was not consenting due to her age, her immaturity, the fact that she had just woken up, and the fact that there had been no preliminaries suggesting that she was sexually interested in him. He proceeded to have sexual intercourse notwithstanding those matters.
In all the circumstances, both counts 1 and 3 are proved beyond reasonable doubt.
In relation to count 5, I am satisfied that in various telephone calls, the defendant attempted to obstruct or pervert the course of justice by counselling V to give a false account to police, namely, that there was no opportunity between when the defendant arrived home and when V arrived home for the defendant to have sexually interfered with the complainant.
I find count 5 proved beyond reasonable doubt.