R v Wilson - [2014] SADC 139

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WILSON
Criminal Trial by Judge Alone
[2014] SADC 139
Reasons for the Verdict of Her Honour Judge Davison
15 August 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
Accused charged with one count of rape – alleged to have had vaginal sexual intercourse with complainant whilst she was asleep due to heavy intoxication – issues of consent and intent.
Verdict: Guilty
Criminal Law Consolidation Act 1935 s 46(3), s 48; Evidence Act 1929 s 34L, s 34M; Juries Act 1927 s 7, referred to.
Douglass v The Queen [2012] HCA 34, considered.

R v WILSON
[2014] SADC 139
Background

The accused is charged with one court of rape. It is alleged that this offence occurred whilst he was at the home of a casual acquaintance. Both the accused and the complainant had been drinking heavily prior to the alleged incident. The complainant alleged that she woke up to find the accused having sexual intercourse with her. The accused gave evidence that he had sexual intercourse with the complainant but that it had been consensual.
The Charge
Statement of Offence
Rape. (Section 48 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Shannon Lloyd Wilson on the 14^th day of November 2013 at Port Augusta, had sexual intercourse with A, A, by inserting his penis into her vagina, without her consent, knowing that she was not consenting, or being recklessly indifferent to the fact that she was not consenting.
The Trial
The trial proceeded as a trial by judge alone. Both the accused and his solicitor had filed the appropriate certificates pursuant to the Juries Act 1927. A Judge of this court made an order on 10 April 2013 that this trial proceed by judge alone.
General Directions
The accused comes before this Court with the presumption of innocence in his favour. The law regards him as innocent unless his guilt has been proven beyond reasonable doubt. The prosecution bears the burden of proof. The charge must be proven beyond reasonable doubt. The accused does not carry any onus of proof and to the extent that he did put forward a defence, he does not have to prove it. It is not sufficient for the prosecution to show a suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. It follows that if I am left with a reasonable doubt as to any element of the offence, I must give the benefit of that doubt to the accused and find him not guilty of the charge.
If, after careful and full consideration, I am unable to decide where the truth lies or who is telling the truth, the prosecution will have fallen short of proving the case beyond reasonable doubt and my verdict must be one of not guilty.
In these reasons, where I indicate that I am satisfied of a particular fact or event, I mean satisfied beyond reasonable doubt.
The accused was not obliged to give evidence but he chose to do so. His evidence must be considered along with the other evidence in the case. He cannot be found guilty unless I find his evidence is not reasonably possibly true.[1]
[1] Douglass v The Queen [2012] HCA 34.
I must assess each witness as to their truthfulness and reliability. I must determine whether I can rely upon the evidence the witness gives. I can reject or accept all or a part of the witnesses’ evidence.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice or fear and not be influenced by public opinion in relation to the matter.
I remind myself that I must not draw any adverse inference against the accused for the fact that special arrangements for the taking of evidence of witnesses have been made, nor allow the special arrangements to influence the weight that I give their evidence.
In this case the complainant and James Struck gave evidence with special arrangements in place.
Elements of the Offence
In order to prove this case the prosecution must prove the following:
1Shannon Lloyd Wilson had sexual intercourse with A, A;
2That she was not consenting to that act of sexual intercourse;
3That he knew she was not consenting or was recklessly indifferent to the fact that she was not consenting;
It is an agreed fact[2] that Shannon Lloyd Wilson had vaginal sexual intercourse with A, A on 14 November 2013. I am satisfied that sexual intercourse did occur on this date and time at Port Augusta.
[2] P1, Fact 1.
The main issue in dispute in this trial is the consent of A, A.
Shannon Wilson gave evidence that A, A had not only consented to the act of intercourse but that she initiated the act of intercourse. A, A gave evidence that she had never discussed sexual matters with Shannon Wilson and she did not consent to the act of sexual intercourse. Her evidence was that the act of sexual intercourse had commenced whilst she was asleep or unconscious.
In this case the extended definition in respect of consent has application.[3]
[3] s 46(3) of the Criminal Law Consolidation Act.
The third element of the offence is that the accused knew that A, A was not consenting or was recklessly indifferent to the fact that she was not consenting. On the prosecution case, A, A was asleep or unconscious at the time when sexual intercourse commenced. If that was the case, then the accused entered the darkened room at a time when she was lying in bed and commenced sexual intercourse with her without her knowledge. The question to be resolved in this matter is whether or not, if they were the circumstances, it has been proven beyond reasonable doubt he knew she was not consenting, or was recklessly indifferent to the fact she was not consenting. The accused’s version in respect of the third element is that he had a positive belief she was consenting. If this is a reasonable possibility, this element has not been proven beyond reasonable doubt.
The Prosecution Case
The prosecution called five witnesses and tendered a number of documents.
Agreed Facts
The first document contained the agreed facts[4].
[4] Exhibit P1.
Agreed Facts
1.On 14 November 2013 the accused had sexual intercourse with the complainant by inserting his penis into her vagina.
2.At 5:30 a.m. on 14 November 2013 a blood sample was taken from the complainant by Dr Shivashankaraiah at the Port Augusta Hospital. At 5:35 a.m. on 14 November 2013 a urine sample was taken from the complainant by Dr Shivashankaraiah at the Port Augusta Hospital. These samples were analysed by a forensic scientist from the Forensic Science Centre. The blood contained 0.170% alcohol and the urine contained 0.239% alcohol.
3.At about 5:20 a.m. on 14 November 2013 Dr Shivashankaraiah conducted a forensic procedure on the complainant. The Sexual Assault Investigation Kit obtained from the forensic procedure was subsequently seized by Senior Constable Sonia Gregory and logged into police property as 14/A49167 – 1 before being transferred to the Forensic Science Centre.
4.On 14 November 2013 a buccal swab was taken from the complainant. This was logged into police property as 14/A49167 – 3.
5.On 14 November 2013 a buccal swab was taken from the accused. This was logged into police property as 14/A49167 – 15.
6.The sexual assault investigation kit (14/A49167 – 1) was examined at the Forensic Science Centre by Natasha Mitchell. Ms Mitchell observed high levels of sperm on the high vaginal, low vaginal and labial swabs. Medium levels of sperm were observed on the endocervical swab. Very low levels of sperm were observed on the right breast swab. Sperm was not detected on the left breast swab.
7.A high vaginal swab produced a mixed DNA profile with two contributors. There is extremely strong support for the proposition that the accused was a contributor. The complainant was excluded as a contributor.
8.A second high vaginal swab produced a mixed DNA profile with two contributors including the complainant. There is extremely strong support for the proposition that the accused was a contributor.
9.A swab taken from the complainant’s right breast produced a mixed DNA profile with three contributors including the complainant. There is extremely strong support for the proposition that the accused was a contributor. An unidentified male was interpreted from the sample.
A booklet of photos was also tendered[5] and a plan of the house.[6]
[5] Exhibit P2.
[6] Exhibit P3.
Evidence of Complainant
A, A gave evidence. Her evidence was that on the day in question, 13 November 2013, she was residing in Port Augusta. She was living there with her children and her nephew, William Way, Shonelle Reid and their two children. Ms Reid and Mr Way had been living at the house for a week or two.[7]
[7] TT12.
On that day A, A took her children to school in the morning and then did some household tasks. Later that day, she went for a drive with her cousin. Whilst driving around she saw a man by the name of James Struck. When she first saw him he was on the east-side beach. He then crossed the footbridge and she met up with him on the west-side beach. She spoke to him and they made plans to meet up later that night to ‘hook-up’. By that she meant to have sex. This was the first time that she had met Mr Struck. She had seen him a couple of days before at the Coles Supermarket.
After she left Mr Struck, she picked up her children and some other children from the primary school and drove home.[8] She arrived home at about 3:30 p.m. or 4:00 p.m. When she did so, there were other people there. She poured herself a drink, a Johnny Walker and Coke. She only had a few sips of her drink at that stage because she had to take her aunty and uncle home to their house. She dropped them home shortly after that. She estimates that she arrived back to her house at about 4:30 p.m.[9]
[8] TT13.
[9] TT14.
After returning home, she commenced drinking alcohol. During the course of the evening she estimated that she drank 10-15 drinks, but was uncertain in relation to the amount. She estimated that she finished drinking about midnight but was also uncertain about that time.
A, A gave evidence that during the course of the evening, a number of people came to her house. These people included a group of men of which the accused was one. She had known the accused since she was a teenager, but had not seen him for a number of years. She wasn’t sure what time the accused arrived at her house but thought it would have been at about 10 p.m. or 11 p.m. The man, James Struck, also arrived at her house. A, A gave evidence that the accused had arrived about an hour or two after James Struck.
A, A said that after the accused and his group arrived, he and another man, Robert Barnes, had left the house to score some cannabis. They were gone for about 15 minutes and when they returned they said that they couldn’t get any. She told them that she had found a bag of cannabis a couple of days before in her house and told them they could have the bag for $20. They agreed to this and, with that, the accused accompanied her into her bedroom where he used the light from his mobile phone to assist her to find the cannabis. She gave him the bag of cannabis and he gave her $20.[10] She said that the accused came into her bedroom on his own on that occasion.
[10] TT18.
A, A gave evidence that the reason the mobile phone was used to provide light was that her bedroom had no artificial lighting. In her house on that night there were no lights in any of the bedrooms.
A, A gave evidence that the cannabis that she gave to the accused had been removed from the right-hand bedside table. She used photograph number six of Exhibit P2 to show where it came from. After she received $20 she asked the accused if he could get her some smokes, but that did not occur. A, A gave evidence that she thought she went into the bedroom with the accused at about 11 p.m., but she couldn’t be sure about times because she was quite intoxicated on this evening. A, A gave evidence that it was only her and the accused who entered the room at that time. After they left the bedroom he went to the laundry with the other men to drink and smoke and she went to the lounge room and continued to drink with the women.
After that occurred she got really drunk and decided she wanted to go to bed. She and James Struck went into her bedroom and had sexual intercourse on the bed. Nobody else entered the bedroom whilst she was in there with Mr Struck and the bedroom door was closed. She gave evidence that after she had sexual intercourse with Mr Struck, they spoke for a little bit and he asked if he could stay the night. She said that he could and he then left the room to have a couple of drinks. She remained in the bed because she wanted to go to sleep. She gave evidence that at that stage ‘I was really drunk and my head was spinning and all I wanted to do was go to sleep and it felt like I was going to be sick’.[11]
[11] TT25.
Mr Struck left the bedroom and closed the door behind him. A, A went to sleep. She woke up and saw someone on top of her. She just lay there trying to work out who it was. At first she thought it was Mr Struck and then realised that it wasn’t. The person was having sexual intercourse with her. He had his penis inside her vagina. At first she couldn’t see who it was because it was too dark and she was trying to adjust to the dark. She then saw that it was the accused. She gave evidence that it ‘Pretty much ended as soon as I woke up. Probably lasted about 15 seconds if that’.[12] A, A gave evidence that he was climbing off her when she realised who it was. After he got off he sat on the side of the bed and was laughing and said ‘I wouldn’t come in you anyways’.[13] She said to him ‘You’re sick just like your mother’. By that she was referring to certain problems that his mother had with her uncle. After she said that the accused just got up and walked out. A, A tried to call Bradley Amos, who is a local police officer, and then Shonelle Reid and Leanne Amos came into her room. She cannot remember whether she called out for them or if they just came in. She gave evidence that after James Struck had left her room after they had sex, she didn’t see him at all later in that night.
[12] TT26.
[13] TT27.
A, A was cross-examined. It was put to her that when she realised that someone was having sexual intercourse with her, she did not say anything like ‘stop’ or ‘get off’ or anything like that. She agreed. She was asked whether she attempted to push him off and said no. She did not do anything to stop him having sexual intercourse with her. It was suggested to her that she had left the bedroom after she had sex with Mr Struck and later re-entered the room with the accused to look for cannabis, and that she told the accused that she wanted to fuck him.[14] That she began fondling his penis and he began touching her, that she told him to undress and they removed their clothes and had consensual sexual intercourse. She denied all of these things.
[14] TT33.
James Struck
Mr Struck gave evidence that he first met A, A on 13 November 2013. He had just been released on parole and he met A, A on the west-side foreshore. She invited him to her house later that night. He went to her house at about 9 p.m. or 9:30 p.m. When he arrived, there were already a few people there. He did not know anyone when he arrived but a group of men arrived later and he knew one of the people in their group.[15] The people who were at A, A’s house were drinking Johnny Walker. A, A was also drinking. She was drinking Johnny Walker Red Label cans. When he arrived, A, A seemed intoxicated. She was in a happy mood. They chattered and she said she was going to her room and that he should come with her. He did so. They probably went into the bedroom 30‑45 minutes after Mr Struck had arrived.[16] After they went into the bedroom they had sexual intercourse. At that stage she was intoxicated but aware of her surroundings.
[15] TT38.
[16] TT40.
He said that before he and A, A had had sexual intercourse a lad walked in and asked her about marijuana. She said that she would sort him out later, or she’s got none. He wasn’t sure of the conversation. After that person had left the room he and A, A had sexual intercourse.
After they had sexual intercourse he told her that he was going out to the lounge room. A, A said she was going to sleep or was just laying down in her bed. He then went out to the lounge room and had a couple of cigarettes.
After he had finished his cigarettes he re-entered the bedroom. He laid down on the bed and said that he was going to go home to where he was living. At that time she woke or came to and asked him if he had been in the bedroom with her for the whole time. He said ‘no’ he had just come back into the bedroom, he had been in the lounge room for the last 15 or 20 minutes. She then said that she thought she had been raped and at that stage was very distressed. He remained in the bedroom for one to two minutes and then the police were called.
Mr Struck was cross-examined. He was asked whether he had a recollection of Shonelle Reid coming into the room on that evening. He said he did not. He confirmed that the man who had come into the bedroom wanting cannabis had done so prior to he and A, A having sexual intercourse and that he had left the room after they had had sexual intercourse for about 15 or 20 minutes before returning to the room. At that stage she told him that she thought she had been raped.
Mr Struck gave evidence that he was not drinking at all on this evening.[17]
[17] TT39.
The prosecution called Shonelle Reid. She said that she has known A, A for many years. She also knows the accused. At 13 November 2013 Ms Reid was living at the home of A, A. She said her partner was living at Davenport. A, A was drinking during the day. In the evening a number of other people arrived. This included Jimmy Struck, who was the first to arrive. She gave evidence that it would have been about 5 p.m. or 6 p.m. After Mr Struck arrived, her partner arrived and then some other people. She said the accused came to the house and it would have been quite late in the evening. She said he came with a whole lot of other men.[18] She knew some of their names but not all of them. She gave evidence that A, A was in bed by the time everyone came to the house. She was in bed with Jimmy Struck. She gave evidence that A, A was so drunk that she told her to go to bed. After A, A and James Struck went to the bedroom, they closed the door. She went into the bedroom a few times after they entered the bedroom. At one stage the complainant called out for the telephone. She went in also to find her cigarettes and to see if A, A was alright and to give her some water. She was also concerned because she did not know Jimmy Struck that well and they had only met him on that day.
[18] TT52.
Ms Reid gave evidence that on one occasion when she went into the bedroom, she saw the accused standing in the bedroom as well. At that stage A, A was lying in the bed with Jimmy Struck. A, A said ‘Get him out of my room Budda’.[19] With that Ms Reid told the accused to get out of the room and he walked out. She and Leanne Amos, who was with her, then left the room and closed the door behind them. She did not see the accused return to the bedroom after that. Ms Reid gave evidence that after they had all left the room, the complainant was yelling out to them, in particular her and Leonie Amos. This was a while after the accused had been kicked out of the bedroom and could have been hours later. Ms Reid did not see Jimmy Struck leaving the complainant’s bedroom at any time. She said that the complainant had left her bedroom a couple of times during the evening to come out to the lounge room to have a cigarette. She said this had been after the accused had been in the room and she had told him to get out.
[19] TT55.

Ms Reid gave evidence that when she and Leonie Amos went into the complainant’s room, the complainant asked her to ring Bradley Amos, a police officer. At that stage she seemed angry. Ms Reid left the bedroom and did not return to the bedroom until the police arrived. She wasn’t sure who called the police but said that the police were called because the complainant asked for them to be called.
Ms Reid was cross-examined. She confirmed that the complainant came out of her bedroom on a couple of occasions after Ms Reid had seen the accused in the bedroom. At that stage A, A appeared to still be intoxicated but wasn’t angry. Ms Reid gave evidence that she had not returned to the complainant’s room between the time that the accused was in the room until the police were called. Ms Reid confirmed that she had continued to drink alcohol after the time when the accused was in the bedroom and that she was affected by the alcohol, although not to the point of slurring her words or stumbling.[20]
[20] TT63.
She gave evidence that a group of people had left the home before the complainant started yelling out for Bradley Amos, but she wasn’t sure if the accused was one of those people.
The prosecution called Leanne Amos. Leanne Amos had only just given a statement in relation to this matter.[21] She gave evidence that she was at the home of her cousin A, A on 13 November. During the course of the afternoon and the evening, there were a number of people drinking. She was drinking Johnny Walker cans. She gave evidence that the accused was there during the evening and Jimmy Struck was also there. Mr Struck arrived when it was dark. She was asked whether she was intoxicated. She said that she was ‘just drunk’.[22]
[21] TT66.
[22] TT70.
She gave evidence that the complainant was also drunk and talking very loudly. During the evening she saw the complainant go into the bedroom with Mr Struck. At some point she and Ms Reid went into the bedroom and, when they did so, the complainant was lying in bed with Mr Struck. The accused was standing behind the door in the bedroom as she walked in. When she went into the bedroom, the complainant asked them to leave. She couldn’t remember anything else that was said at that time. They left the bedroom and returned to the lounge room. She did not see the complainant leave the bedroom at all after that time. The next time she saw the complainant was after the police had arrived. She did not see the accused or Jimmy Struck after the time she was in the bedroom with them.[23]
[23] TT76.
She was cross-examined. She said that when she and Shonelle left the bedroom, the accused remained in the bedroom. She was unaware of whether Shonelle Reid had gone in and out of the bedroom at all during the evening, apart from the time that she was with her.
Senior Constable First Class Everlyn was called. He gave evidence that he has contacted a number of individuals who had all declined to give statements in relation to this matter.
As I referred to earlier, there were a number of agreed facts and the Crown closed its case.
Defence Case
The accused gave evidence. On 13 November 2013 he was living at his sister’s house. He went to the Tassie Tavern in Port Augusta by himself between 1:00 p.m. and 2:00 p.m. and bumped into a few friends. He ended up staying there and having a few drinks and playing eightball.[24] He remained there for a couple of hours and left about 4:00 p.m. or 5:00 p.m. After that he went to his cousin’s house and had a few more drinks. He left his cousin’s house at about 9:00 p.m. and went to the complainant’s house after that. He went to the complainant’s house with a number of other people and there were a few people already there drinking.
[24] TT87.
He asked the complainant for some ‘weed’. He gave evidence that she said that she had some and she went into her room to look for it. There was a hassle finding it and he did not get it at that time. About five or 10 minutes after that, he and another man went for a drive and returned to the house. After that he went into her bedroom because she told him to help her look for another bag of weed because he was running low. At that stage there was no light in her room and he used his mobile phone to help her look for the weed. It is not clear whether he found any at that time.
There was then a third occasion when he went to her room. The door was shut. He knocked on the door because he knew that she had been there with another man previously. She came to the door and opened it. He told her he wanted some more weed. He pulled out his phone for some lighting. At that stage she had her underwear and t-shirt on. She was pretty ‘drunk’.[25] It was hard to understand what she was saying. She said that she thought she might have another bag and would have a look around. They went to the side of the bed and had a look in the drawers where she said she had it. They then started talking to each other and started fondling each other and ‘it was like she was coming onto me’.[26] She told him to get undressed and he got undressed. She took her clothes off at the same time that he did. She then lay on the bed. He then ‘jumped on top’.[27] She was awake at that time, wasn’t asleep at all during the time that they were having sexual intercourse. They had sexual intercourse for about two to three minutes with him on top of her. When he finished having sexual intercourse, he got dressed and left. Before he left she said ‘is that all you’ve go? That was pretty shit’. He ignored her and left the room. He went back down the hallway to where the rest of the boys were in the kitchen and lounge, chatted for about 10-15 minutes, and then left the house.
[25] TT91.
[26] TT92.
[27] TT92.
The next morning his sister left a message on his telephone saying the police had come to the house, and about 10:30 a.m. he got dressed and went to the police station.
He was cross-examined. He said he had known the complainant when he was a child, but he had moved away from Port Augusta when he was about eight or nine. Since returning to Port Augusta he had seen her, but had not spoken to her.[28] He said he had never visited the home of the complainant. Whilst at the Tassie Tavern he had roughly five or six drinks of spirits with mixers. When he returned to his cousin’s house he had a few more drinks, and later had some cannabis. On the way to the complainant’s house, they went through a drive-in bottleo and bought half a carton of Jim Beam and Cola.[29]
[28] TT95.
[29] TT100.
He was cross-examined about an incident that occurred when he was in the complainant’s bedroom. He agreed that he had been in the complainant’s bedroom when Shonelle Reid came into the room. He wasn’t sure if Leanne Amos was with her. He was standing behind the door, he said, at that stage and the complainant was in bed with another man beside her. He said he was asking her for some ‘weed’ at that time and that another man, Robbie Barnes, was also with him in the room at that time. The accused said that he could see the complainant was basically ‘half naked’ because he could see her pants and that and her legs when she took the blanket off.[30] He said that he left the room as soon as the girls came into the room. He said he hadn’t realised what was going on in the room at the time.
[30] TT105.
He gave evidence that Robert said ‘come in (the complainant’s) got weed’ but he didn’t know that she was in bed with a bloke at that time. He has since been told that there was a man in the room. He said that after he left the bedroom he then went for a 15 minute drive with Robert and when they came back, he went to ask the complainant for some more weed and that’s when he was told she was in the bedroom with a bloke.
Under cross-examination he wasn’t so clear that he knew there was a man in the bed at that stage. He also wasn’t clear that he had seen the complainant’s naked legs at that stage.[31]
[31] TT110.
He went on to explain that during one of the times he went into the room the man, Robbie Barnes, was being persistent in looking for cannabis; that he had a torch from his mobile phone and he was walking around the room looking for the cannabis and not taking no for an answer.
The complainant, he said, said something to the effect of ‘get these boys out of the room’ when Shonelle and another women came into the room. He said at that stage he was on his way out of the room in any event.[32]
[32] TT115.
He was asked whether the complainant was angry when she said the words ‘get these boys out of the room’, to which he responded ‘not angry, angry but yeah she might have. From what I gather she might have, yeah, wanted us out of the room because she had a boy – a bloke in her bed’.[33] He agreed the complainant wasn’t happy at that stage. He also agreed that the complainant was drunk during the evening, and that she was having trouble talking and slurring her words.
[33] TT115.
He then gave evidence that he had left the party and driven around with two other men looking for some weed. He then returned to the party and asked the complainant for some cannabis. He said that she knew that he was back and she said she had found it. The second time he went into her bedroom and she found some cannabis in the right-hand side cupboard of her bed, she said she wanted $20 for the cannabis. He gave her $20 and then he went out and he shared the cannabis with his friends in the laundry. He agreed that at that stage she was drunk and slurring her words. He did not know what the complainant had done after that stage, whether she had come back to the kitchen or the lounge room.
He then said he had returned to the bedroom for a third time because he was looking for some more weed. At that stage he wanted some for when he woke up in the morning, but he still had some left in the bag that he had bought from the complainant. It was on this occasion he said sexual intercourse occurred.
The accused was cross-examined in relation to ejaculation. He agreed that he ejaculated but said that he did not ejaculate in the complainant’s vagina, but rather removed his penis and ejaculated on her belly. He said he did that because he didn’t want her to have his child.[34] He agreed that the whole act of intercourse took about two minutes. He said he stayed at the house for about 10 minutes after he had had sexual intercourse with her and then left. He said he left because there was no grog left and he was finished and things weren’t feeling right. He said he was getting uncomfortable. He said he felt uncomfortable because he was in unfamiliar territory.[35]
[34] TT126.
[35] TT128.
There was no re-examination.
Prosecution Address
Mr Plummer conceded that most of the witnesses in this matter, with the exception of James Struck, were intoxicated to a significant extent on this night. The complainant agreed she had between 10-15 drinks of Johnny Walker and mixer throughout the afternoon and evening, and was very drunk. The agreed fact that her blood contained 0.17 % alcohol taken at 5:35 a.m. on 14 November 2013 bears this out. He submitted that Shonelle Reid and Leanne Amos were also drunk, but not to the point of falling over. He submitted that the accused had also had a significant amount to drink and was smoking cannabis on this evening. He conceded that there were inconsistencies on the versions given by the complainant, Mr Struck, Leanne Amos and Shonelle Reid. He said that, to some extent, these inconsistencies fall away as the accused has given evidence and they are not inconsistent with him. However, there are some significant inconsistencies that need to be dealt with, he submitted.
The complainant gave evidence that she has no recollection of any occasion when people came into the bedroom whilst she was there with Mr Struck. There is evidence that there were a number of occasions when others came into the room from the various witnesses. The most significant of these is when Shonelle Reid and Leanne Amos came into the room and the accused was in there. The evidence was that the complainant asked Shonelle Reid to get him out of the room. There is also evidence from Mr Struck that there was an occasion when someone came into the room and asked for cannabis and the complainant shrugged him off. This is probably the same occasion being described by the witnesses.
Mr Plummer submitted that this inconsistency on the part of the complainant can be explained as she was so intoxicated on this night that she does not recall these events. He submitted that she gave her evidence in a forthright manner, making concessions when she couldn’t remember things because she was drunk. She could recall, he said, the most significant features of the evening, including the fact that she had sexual intercourse with Mr Struck and that she remained in the room after that time, not wearing any clothes. She purported to have a good memory of the alleged offence and had clearly been asleep, on her version, at the time when sexual intercourse commenced and had not consented to having sexual intercourse with any person at that time.
He said that her evidence in relation to the conversation that occurred afterwards gained some support from the assertion of the accused that in fact he had not ejaculated inside her, but on her belly. In respect of the complaint that she made, Mr Plummer submitted that her complaint was consistent with the offence having occurred, and her distress at that time was also consistent with the offence having been committed by the accused.
In relation to her complaint, Mr Plummer submitted that whilst the complainant was talking to Mr Struck after the alleged offence, there was a level of confusion that was consistent with the intoxication of the complainant and consistent with the facts of this case, that the accused had left the bedroom and she was in bed in a heavily intoxicated state, trying to work out what had occurred. At that stage she lapsed into sleep and, when she woke, Mr Struck was in the room with her and she then started to piece everything back together.
In relation to the evidence of the accused, Mr Plummer submitted that his evidence should be rejected. He submitted that the accused had been inconsistent in his evidence, between his evidence-in-chief and his cross-examination - in particular in relation to the incident that he described, where he went into the bedroom and the man, Robbie Barnes, was with him. The second issue, he said, he was inconsistent about was whether the man, James Struck, was under the covers at the time he said he was and whether the complainant had pulled the covers off.
Mr Plummer also submitted that I should reject the accused’s evidence that he had gone into the room to get cannabis from the complainant on the third occasion because he had also already received the cannabis; he had smoked some and he had some left for the next day, even on his own evidence. In addition to that, he had already been told to get out of the room earlier that night. He submitted I should draw the inference that the only reason he went back into the room in those circumstances, was to have sexual intercourse with her. He submitted that the witness, Mr Struck, was an important witness in relation to the offence of the night. He was the only person who wasn’t intoxicated and, whilst he wasn’t a particularly willing witness, he was a truthful and reliable witness.
Defence Address
Mr Amey submitted that the complainant was severely intoxicated on this occasion and her evidence was inherently unreliable. He submitted that her evidence should be rejected on various points, in particular her assertion that after she had had sexual intercourse with Mr Struck, she had not left the bedroom at all. Mr Amey pointed to the evidence of Shonelle Reid, that the complainant had left the bedroom on two occasions to have a cigarette in the lounge room after the incident with Mr Struck. He said that, at that stage, she did not appear distressed, but still appeared to be intoxicated.
Mr Amey’s submission was that there were a number of inconsistencies that could not be overlooked on the prosecution case.
The accused, he said, gave his evidence in a quiet and credible manner. He was thoughtful and trying to be helpful and trying to be honest. Mr Amey submitted that if the incident with the accused had occurred prior to the complainant coming out of the bedroom, then her behaviour and demeanour at that time was inconsistent with a person who had been raped and it puts her evidence under a serious cloud. Indeed, Mr Amey submitted that if the complainant had come out of the room at all on that night, then I should reject her evidence or, at the very least, have a reasonable doubt in relation to her version of events.
Mr Amey submitted that I should prefer the evidence of Shonelle Reid over that of the complainant, as it is clear on the evidence that Ms Reid was less intoxicated than the complainant on the night, and had taken it upon herself to look after the complainant because of her degree of intoxication.
Mr Amey submitted that I could not be satisfied on the evidence of the complainant that the offence had occurred due to the various inconsistencies between her and the other witnesses. He also submitted that I should accept the evidence of the accused or, at the very least, not be in a position that that evidence is not reasonably possibly true.
Discussion
Evidence was led in this matter of the complaint pursuant to s 34M of the Evidence Act 1929. Section 34M reads as follows:
34M—Evidence relating to complaint in sexual cases
(1)   This section abolishes the common law relating to recent complaint in sexual cases.
Note—
See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(2)   In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
(3)   Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
• when the complaint was made and to whom;
• the content of the complaint;
• how the complaint was solicited;
• why the complaint was made to a particular person at a particular time;
• why the alleged victim did not make the complaint at an earlier time.
(4)   If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a)   it is admitted—
(i)    to inform the jury as to how the allegation first came to light; and
(ii)   as evidence of the consistency of conduct of the alleged victim; and
(b)it is not admitted as evidence of the truth of what was alleged; and
(c)there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person, but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5) It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6) In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise); initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
This evidence came from the complainant and James Struck. The evidence of the complainant was that after the offence had occurred, she had tried to call Bradley Amos, a police officer, but his phone had been turned off. After that, Shonelle Reid and Leanne Amos came into her room and helped her get dressed. She told them that she woke up and Shannon was on top of her. The evidence of Shonelle Reid was that the complainant was singing out for her and Leonie Amos, and she went into the room and the complainant was demanding that they ring Bradley Amos, but she didn’t tell them anything else. Leonie Amos wasn’t called as a witness. Leanne Amos said that she had not spoken to the complainant at all about the matter before the police arrived at the house.

James Struck gave evidence that the complainant had told him that she thought she had been raped and that she was very distressed at that time, that she was in the room for about one to two minutes and then the police were called and he left.
Whilst there are variations in relation to the complaint, all of the complaints are consistent with an offence having occurred and the complainant being distressed at that time and wanting the police involved. The inconsistencies in relation to who was told at that stage, and what occurred, are explicable given the state of intoxication and the distress of the complainant at that time. I have not used this evidence for the truth of the assertions, but rather to assess the evidence of the complainant and determine whether I can accept her evidence in relation to the alleged offence. It also explains how the allegation first came to light and the circumstances of the complaint.
The level of intoxication by all civilian witnesses, with the exception of Mr Struck, is an issue that has caused me to scrutinise the evidence of the prosecution witnesses with great care. The complainant, Shonelle Reid and Leanne Amos have consumed a significant amount of alcohol in this afternoon and evening. They were plainly all affected to some extent, perhaps grossly, by the amount of alcohol they had consumed. The complainant, on her own evidence, and that of Shonelle Reid and Leanne Amos, was significantly affected by the alcohol. This may have led her to have been more disinhibited than she may otherwise have been. It may also have led to lapses in her memory and affected her general reliability.
The accused, too, was affected by alcohol on this occasion. It is necessary for me to take into account his level of intoxication when assessing his evidence in this case.
Conclusion
I have considered all the evidence in this case. I have, as I have said, scrutinised the evidence of the prosecution witness with great care given the degree of intoxication of the complainant, Mr Reid and Ms Amos. I have considered the impact that the various inconsistencies have had on whether I should accept the prosecution’s witnesses as credible and reliable and the extent to which I can accept all or part of their evidence.
I have considered the evidence of the accused. I did not find him an impressive witness. There were significant variations between the events that he recounted in evidence-in-chief and cross-examination. I have made allowance for the fact that he appeared to be a very nervous and, at times, quite uncomfortable in the witness box.
In this case I am satisfied that the version of events, specifically related to the alleged offence, given in evidence by the accused is not reasonably possibly true. I do not accept that he entered the complainant’s bedroom on the third occasion looking for cannabis, when he had already purchased cannabis from her and had cannabis leftover. I do not accept that she got out of bed, made her way to the door and then assisted him to look for further cannabis at that point in time. I do not accept that she then instigated sexual activity with the accused that culminated in her having sexual intercourse with him in the way that he described in his evidence. I put his evidence to one side in relation to this matter, given those findings.
The question remains whether I am satisfied beyond reasonable doubt of the assertions made by the complainant in relation to what occurred on this particular evening. There are a number of examples of inconsistencies between her and other witnesses in relation to this matter. I do not intend to canvas them all again. The inconsistencies in this case are explicable in relation to the varying accounts given the amount of alcohol that had been consumed by the complainant, Ms Reid and Ms Amos on this particular night. It is not surprising that there are differences in relation to their accounts given this fact.
The evidence given by the complainant in relation to the events that she recounted having occurred with the accused were compelling. She did not exaggerate in her evidence. She made reasonable concessions in relation to matters that she could not recall. She did not appear to be deliberately misleading or lying. She was forthright in relation to her activities with Mr Struck and her level of intoxication. The evidence in relation to the complaint that she made to Mr Struck is consistent with the offence having occurred in the way that she described. It was also consistent with a level of confusion in her own mind as a result of intoxication. Her distress at that stage was consistent with the offence having been committed.
In relation to the inconsistencies relied upon by Mr Amey in respect of the complainant having come out of the room on a couple of occasions, after she was in the room with Mr Struck, I make these observations. The only person who gave that evidence was Shonelle Reid. I find that it is possible that Ms Reid was confused as to the timing in relation to the appearances of the complainant. However, even if the complainant did come out of the room after she was with Mr Struck, there is no evidence to suggest that it was after the time when she had had sexual intercourse with the accused. I find that she did not come out of the bedroom after she had had sexual intercourse with the accused and behave in the way that was described by Ms Reid. The evidence discloses that at all times after she had awoken and disclosed the events to Mr Struck, she was distressed and requiring immediate police assistance.
I accept the evidence of the complainant in relation to her assertions that the accused had sexual intercourse with her, in the way that she described, beyond reasonable doubt.
I make the following findings:
·       The accused entered the bedroom of the complainant whilst she was heavily intoxicated and asleep.
·       He removed his clothing and commenced having sexual intercourse with her whilst she was asleep and unaware of his presence in the room.
·       By the time she awoke, his penis was in her vagina and the act of sexual intercourse was completed shortly thereafter.
·       At that stage she knew that the person who was having sexual intercourse with her was the accused, Shannon Wilson.
·       At the very least he was recklessly indifferent to the fact she was not consenting.
·       After he completed the act of intercourse, he sat on the side of her bed and she said words to the effect of ‘You’re sick, just like your mother’.
·       He said to her ‘I wouldn’t come in you anyways’ or words to that effect, and that was a reference to the fact that he had not ejaculated in her vagina, but on her stomach.
·       The accused then left the room and left the house shortly thereafter.
·       The complainant fell asleep due to the effects of the alcohol.
·       The witness, James Struck, re-entered the room, laid down beside her and, when she awoke, she spoke to him in relation to the act that had been committed by the accused shortly before that.
·       She then became distressed and the police were called immediately.
I am satisfied beyond reasonable doubt:
1      That the accused had vaginal penile sexual intercourse with the complainant on 14 November 2013;
2      At the time he had sexual intercourse with her she was not consenting;
3      He was recklessly indifferent to the fact she was not consenting to sexual intercourse at that time.
I therefore find the accused guilty as charged.