R v Wonga - [2006] SADC 74

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WONGA
Criminal Trial by Judge Alone
[2006] SADC 74
Reasons for the Verdicts of His Honour Judge Clayton
14 June 2006
CRIMINAL LAW - PARTICULAR OFFENCES
Accused charged with one count of assault with intent to rape and one count of rape - trial by judge alone - Prasad application - verdict not guilty.
R v Prasad (1979) 23 SASR 161 at 163, applied.

R v WONGA
[2006] SADC 74

Mr Wonga was charged with assault with intent to rape. The particulars alleged were that on 4 December 2004 at Fregon, he assaulted Charlotte Gwen Trueman with intent to rape her. He was also charged with rape; the particulars being that on 6 December 2004 at Fregon he had vaginal sexual intercourse with Charlotte Gwen Trueman without her consent.
When arraigned, through an interpreter, a plea of not guilty was entered to count 1. Some difficulty arose with respect to count 2 and, at the suggestion of counsel; I put three questions to Mr Wonga and received the following answers:
HIS HONOUR:    The first question: Mr Wonga, did you have intercourse with Charlotte Trueman?
ACCUSED:        Yes.
HIS HONOUR:    Did you force Charlotte Trueman to have intercourse with you.
ACCUSED:        No.
HIS HONOUR:    Did Charlotte Trueman want to have intercourse with you.
ACCUSED:        Yes.
I interpreted those answers to be a plea of not guilty to count 2 and recorded such a plea.
Counsel for the accused then made an application under rule 16 to dispense with the rules relating to an election for trial by judge alone at circuit sittings. In the absence of any opposition by the Crown I made the order sought and permitted a late election to be made so that the trial proceeded as a trial by judge alone.
At the close of the prosecution case defence counsel made an application which he said “is a no case submission.... which will.... touch upon the principles articulated in The Queen v Prasad as well”. Counsel made submissions, I reserved my decision and on the following morning, Wednesday, 14 June 2006, I ruled:
As to each count, I find that, while there is evidence upon which the accused could lawfully be convicted, the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it.... Accordingly, on each count, the verdict is not guilty.
I referred to the reasons of King CJ in R v Prasad[1].
[1] (1979) 23 SASR 161 at 163
These are the reasons for the ruling that I made on 14 June 2006.
The alleged offences took place at Fregon in the Pitjantjatjara lands.
The victim had lived in the Lands until about the age of 4. When she was young her mother had been in a relationship with a person related to the accused and the victim had been told to treat the accused as an “uncle”.
In 2004 the victim had been living at a settlement on the west coast of South Australia. She knew a woman called Mima who is the niece of the accused. The victim returned to Fregon in December 2004. She had not seen the accused for many years. She said in evidence that she was always scared of the accused “because he sniffed petrol and I’m scared of petrol sniffers”.
On 4 December 2004 the victim and Mima entered the home of the accused without his knowledge or permission. The victim said initially they were looking for women’s magazines. They had been in the room of the accused for about 15 minutes when he arrived unannounced. She said he got a shock, asked what they were doing in his room, got really angry, slammed the door, slung the victim onto the bed and pushed Mima to the wall. He slapped and touched Mima. When the victim tried walking out of the house he grabbed her and pulled her back into the room and locked the door again. He swore at the victim and told her to stay on the bed. He approached Mima, touched her on the face and said things like “I wish we wasn’t related”. The victim tried to get off the bed, but the accused knocked her back. Her evidence was:
AHe was on his feet. And then the second time he pushed me on the bed I got up and tried going out of the room, but then he grabbed me again because Mima was stuck in the corner and I was by the door, and I opened the latch and I tried opening the door, but I couldn’t because I was too nervous to do it quickly. I was shaking and like that, and because I was real nervous and shaking and I couldn’t open the door properly, he slung me back to the bed and that’s when he got on top of me, but he never really put his penis into my vagina, he was just on top of me with his – both knees over my body and he was sitting on top of me sniffing petrol, and then I was – I was crying and struggling trying to get away. Then he got up because – and then he got up and he said ‘You lucky I’m your uncle and not somebody else because if I was somebody else I would have did you long time ago.’ And then I was thinking, ‘Yes, I’m real lucky that’s my own uncle’, but he didn’t have to do that there.
QFor how long did he stay on top of you. What did you do when he was on top of you.
AFor about five minutes and when he was on top of me, he was sniffing petrol and he had his mouth in the can and he was saying things, but I couldn’t really understand him because he was saying it in his can while he was sniffing out of – he was saying it inside of that so I couldn’t really understand him.
QWhen he had his knees either side of you on the bed what, if anything, were you doing.
AI was moving around, struggling, and then he – when I was moving around he hit me with his fist and then – that’s when I started crying out really loud and then he got off me and that’s when he said ‘You lucky I’m your uncle and not somebody else’.
There was then a conversation about exchanging T-shirts. The victim left the house and went to another house where she complained to Mr N J Eaton, a teacher. He gave evidence that on the evening of 4 December 2004 there was a knock at his door. He said:
There was a girl there, who I hadn’t seen before. She looked very distressed and I think the first thing she said to me was ‘Can you call the police for me?’ I think at that point I invited – I invited her into the house and she took a seat and I asked her ‘What for?’ She said ‘A man tried to rape me’. I asked ‘Who?’ She said ‘It was Daryl Wonga’. She was visibly distressed and she was – her eyes were downcast, she had been crying and she continued intermittently to cry while she was at my place. I called the police. They weren’t in town, so it took them some time to get there. While they were away I just tried as best I could to sort of comfort her. I offered her a cup of tea, gave her a cigarette, and tried to just maintain casual conversation, I think. But, as I said, she was definitely distressed.
That was the evidence upon which count 1 was based.
The victim gave evidence that between 4 December and 6 December 2004 she met a boy in Fregon and went back to his car and camped with him. She said they had sex. She denied that she had met any other “nice boys” and initially said he was the only one. However, later in her evidence she acknowledged that she did have sex with a second man between 4 and 6 December 2004.
As to the second count and the events of 6 December 2004 the victim said that she woke up at about 5.00am after spending the night with the “nice boy”, was walking back to her cousin’s house where her belongings were, and that as she walked past an old house the accused called out from that house. She got scared and went to the school where she saw a really slim man with a coloured beanie standing in an old house. That man called out to the victim and said he knew her. Then the accused came out of the old house. The victim was scared. The man with the coloured beanie told her that she should go because the accused was bringing petrol for him. The accused went to get the petrol and the victim chatted with the man in the coloured beanie about her mother. The accused returned and the victim bumped into him. He pushed her back into the house and she fell onto her hands and knees. He put an old fridge against the door to prevent her leaving. He started showing her dirty pictures and said “me and you. Me and you” and she said ‘no, you do it to your own self. You do it to your own self”. The accused said “yeah, I am, look here, watch me”. She closed her eyes and said “I’m not going to look there, fuck you”. The inference is that he masturbated. The man in the coloured beanie was in the corner of the room at that time.
The victim tried to move the fridge and squeeze through the gap, but the accused pushed the fridge back and the victim became stuck between the door and the doorframe. The accused pulled her back into the room. The man with the coloured beanie told her that she could jump through a broken window. The victim said she jumped out the window and ran around the house up towards a shed and across a creek towards the police station. When she was in the middle of the creek the accused caught up to her.
The victim said that she went to the police station. Her evidence as to whether she saw anybody in the police station is not clear. The effect of her evidence was that the police in the area were not helpful. She said that she spoke to an aboriginal policeman in Pitjantjatjara saying “hey, can you please help me out here, there’s the man there chasing me round”, the policeman asked “is it Daryl Wonga?”, the victim said “yeah”, the policeman looked at her and said “so, that’s your uncle, what you going to do with your uncle?” and the victim said “yeah, that’s why I’m here, I want you to lock my uncle up”. The victim said “he just shut - he just put everything down and locked the door and walked away, jumped in his Toyota and drove away and I was standing there helplessly lost and then I walked back over to the shed”.
The victim said the man with the coloured beanie followed her to the shed, told her to run away because the accused was coming, but just as she was to run out of a big door the accused blocked her way. The accused pushed her with his stomach into the middle of the shed. The victim said the accused was “acting like a lover, you know how a lover would hold you”, that is, “he put his hand around me, like my stomach and then he went down to my vagina, then I pulled his hand out, I pulled his hand out”. She said she did that because she did not want her own uncle touching her in that way. She said that the accused then slung her around, pushed her onto the cement floor and she fell back and banged her head. She said:
He sort of knocked me out when he pushed me on to the cement and I knocked my head on the cement a little bit but I never really let him put me right down and knock me right out because I was fighting for my life..... by the time I woke up form my little.... coma or whatever, when , you know when you get hit - bang your head against something and you blank out, yes, I was blanked out on the floor for a little while and then I woke up and when I woke up he was sitting on top of me. He pulled my trousers and my knickers down past by vagina part up to me knees and then was still on top of me, took his penis out - and then he put it into my vagina and he had a couple of bangs and injected some sperm into me and then when he went I sort of - I could - I could - I could feel his sperm inside of me so I stuck my finger up my cunt and got all his sperm out of me with my finger and I wiped it on a wall because, you know, didn’t have nowhere else to wipe it, like or wash my hands or anything because it was an old ruined shed so I put my finger up my vagina, got all the sperm out with my finger and there is a bottle of water here... and I rinsed it off with the water...”
The victim said that before the accused slung her onto the ground and she hit her head the accused said that she was his girlfriend and that she wanted to have sex with him, that he could read her mind and she did want him to do it to her, but she looked at him and said “excuse me?” to which the accused said:
You know you want me to do it to you because you haven’t got a boyfriend and all your boyfriend’s only just been using you any ways so you might as well let your uncle do it to you so - because you can - so you can come back into your family with your family and be right with your family and everything.
The victim said she told him she did not want the accused to touch her and she told him he could “go and get ripped”, but in another way using the “F” word. She said the accused said “you should let me do it so you can feel comfortable with all your other family”. She said that was when he slung her around, pushed her to the cement and it happened.
She said there was a conversation about the shed being a sacred site. She said that her stomach was hurting because she had not had sex for a long time, but when reminded by the prosecutor about her evidence of intercourse with the “nice boy” the previous night she avoided the issue.
The victim gave evidence of further dialogue between herself and the accused that she was scared and ran away to the white man’s house, that is, the teacher’s house. Mr Eaton did not give evidence of any visit to his house on 6 December 2004.
In any event, the police did become involved on 6 December 2004 and drove the victim to the Coober Pedy Hospital.
If the only evidence was the evidence in chief of the victim there might be evidence upon which the accused could lawfully be convicted. However, during cross-examination, counsel for the accused was able to expose internal inconsistencies in the evidence of the victim and inconsistencies between what the victim had told police officers shortly after the alleged offences and in a statement which she had made to the prosecutor on the day prior to the commencement of the trial.
I do not propose to catalogue all of the inconsistencies in the different versions given by the victim. The effect of the inconsistencies causes me to doubt the underlying basis of the evidence of the victim and also the reliability of the story that she has told. In making these observations I take into account that there is no dispute that the victim did complain to Mr Eaton on 4 December 2004 and to police officers on 6 December 2004 and that on both occasions she was observed by independent witnesses to be distressed.
The person called Mima, who was said to have been present at the time of the first offence, was never properly identified and was not called to give evidence.
When confronted with inconsistencies in her story the victim claimed that the police had inserted in the written statements extra bits “that never happened” (see T 143-26). She also said that the prosecutor had made a rough note of facts which she had reported, but the prosecutor never included that information in the statement. She said “even if it’s not on the paper - because I did say it, it came out of my mouth, but I don’t think she wrote it down” (T 145-19).
Contrary to what she said in evidence the victim told the doctor that she did not black out when her head hit the concrete floor (T 146-12). Also the doctor asked her if she had been petrol sniffing and she said “no”. At the trial she initially denied that she sniffed petrol, but as her evidence progressed she ultimately admitted that she did sniff petrol at Fregon (T 147) and on other occasions.
The victim acknowledged in cross-examination that there are only two bloodlines in Pitjantjatjara and those two bloodlines cannot mix, so that women should not have sex with someone who is “different skin”. The accused was different skin from the victim and so was the “nice boy”. When asked whether the “nice boy” was of the same or different skin she said:
I think he was wrong skin because that’s what Daryl was saying before. ‘I’m going to - I want to touch you, but you got different skin so I’m going to give you to another man who has got different skin so I can touch you and then I’ll have the reason to touch you’ and he also threatened the young boy.
During cross-examination, counsel explored that answer and enquired whether the victim was suggesting that the accused had arranged for the “nice boy” to have sex with the victim so that the accused could then have sex with her himself. She said:
Yes, because that’s what I overheard them saying that, and somebody who wanted me to get - wanted me to go through this asked him to set me up, and that person is supposed to be my cousin, but she doesn’t even act like my cousin, so she can go to hell.
She claimed “it was all set up for me to get raped, like everyone already set it up”. She first said that the conversation in which she was “set up” was on 4 December 2004, but as her evidence progressed that conversation merged with another conversation a “long time ago” which she overheard between Cherie Koko and Patrician Gunter in Ceduna. When asked where she was when she overheard the first conversation, the victim said:
We was in South Australia, back home in Ceduna, and because somebody was thinking about Cherie - and Cherie didn’t like it - she went and asked my sister if I can get raped because she did, which never did - which never did happen to her.
The victim said that the week before she travelled to Fregon she was in her auntie’s home in Ceduna when she heard two persons talking about the accused coming to rape her. That most significant event was never mentioned to the police officers or the prosecutor prior to the trial and was not mentioned in evidence in chief. When it was suggested that the victim had made up the evidence, she avoided facing up to the suggestion.
When counsel for the accused was putting his case, the victim agreed that in addition to herself and the accused, the man with the coloured beanie and another man were present at the time of the alleged rape. That was the first reference by the victim of the presence of another person. He was identified as Tiger Pompeii.
If the victim is to be believed, the first relevant event was a conspiracy reached by women in Ceduna to have the victim raped. That was before the victim and Mima went into the room of the accused in Fregon. Then there was a further conspiracy between the accused and the “nice boy” pursuant to which the “nice boy” had sex with the victim to pave the way for the accused to have intercourse with the victim. So far as the Ceduna conspiracy is concerned, the accused and the victim had not seen each other for about 20 years. There is no reason why the accused should have shown any interest in the victim before she travelled to Fregon in December 2004. The victim did not suggest that the accused was a part of the Ceduna conspiracy himself.
To prove count 1, the prosecution must prove beyond reasonable doubt that the accused committed an assault on the alleged victim and that in assaulting the alleged victim the accused had the intention of committing rape upon her. The accused had no reason to expect that he would find the victim and Mima in his room when he did. If he had an intention to rape the victim he could only have formed that intention after he became aware of her presence. None of his actions suggest that he intended to rape the victim. I am not satisfied that the accused formed the relevant intention after he had entered the room. There is nothing to suggest that he had such an intention as a result of the alleged conspiracy of the two women at Ceduna. The other suggested conspiracy, between the accused and the “nice boy”, had yet to be formed at the time of the alleged first offence on 4 December 2004.

The evidence does not establish that on 4 December 2004 the accused had an intention to rape the victim.
Counsel for the accused submitted that it would be almost impossible to extract from the evidence of the victim exactly which of the physical contact deposed to by the victim between the accused and the victim is the contact which gives rise to the assault alleged in count 1. I accept that submission. I am not satisfied that the accused assaulted the alleged victim in a way which would establish the lesser offence of common assault.
It is an agreed fact that the prosecutor and another officer of the Office of the Director of Publish Prosecutions included in the handwritten statement they prepared everything that the victim told them on 8 June 2006. The consequence is that the victim cannot be believed when she said that information written on a scrap of paper by the prosecutor was never included in her statement.
The victim made no mention of the fact that Mima was with her in the additional declaration. The victim said that the police told her not to worry about Mima. The role of Mima is so central to the events of 4 December 2004 that it is inconceivable that the police officers would not have acknowledged her presence in the declaration. The only inference is that the victim never told the police officers about Mima. Constable Knight said “I don’t recall her telling me these things. Obviously it was in 2004. I would like to think if she had of told me I would have made notes of that. I was handwriting everything ....”. I accept the evidence of Constable Knight.
As to the second count, the victim said that a lot of material came out during her evidence in court which was not included in her signed declarations because Constable Knight had reached the end of her notepad and ran out of paper. The victim said Constable Knight said “that’s it, notebook is full, can’t fit anymore in”. That was put to Constable Knight who said it was incorrect. Constable Knight had her notebook with her and at the end of her handwritten notes there was an abundance of space in which further entries could have been made. Constable Knight said that to the best of her recollection she made a record of everything that the victim said. I accept the evidence of Constable Knight in preference to that of the victim.
In her second declaration, which was prepared by the prosecutor on the morning of trial, the victim revealed the presence of Mima for the first time. The victim eventually agreed that she and Mima entered the accused’s unit for the purpose of seeking petrol to sniff, not to look for women’s magazines as she had suggested previously.
In her evidence the victim said that during the commission of the first alleged offence the accused was on top of her and sniffing petrol. That fact is not mentioned in either her first declaration or her second declaration. Her evidence to the court tells a very different story from that contained in the first declaration.
The fact that Mr Eaton did not give evidence of the suggested second visit to his home is significant.
As to the second count, the victim refers to the man with the coloured beanie in her first declaration. She said she saw him in a rundown house and obtained a drink of water from him. She did not say that he was present during the alleged offence. The man in the coloured beanie was not mentioned in the second declaration at all. In evidence, the victim ultimately agreed that she had sniffed petrol offered by the man with the coloured beanie.
I will not attempt to identify all of the inconsistencies in the evidence of the victim with respect to count 2. At first blush her evidence was credible; but when required to complete the gaps her story did not hold together. It is not possible to determine what her movements were or precisely what did happen.
So far as count 2 is concerned the act of intercourse is admitted. The prosecution must prove that the intercourse took place without the consent, that is the free and willing participation, of the victim. The prosecution must also prove that the accused either knew that the victim was not consenting or was recklessly indifferent as to whether she was consenting. The victim gave so many variations of her story that I am unable to rely upon anything that she said.
There is no reliable evidence upon which I can find that the victim did not consent or that the accused did not know that she was not consenting. I am in a position where I just do not know what happened. It is significant that neither the man with the coloured beanie nor Tiger Pompeii, the fourth person said to have been present at the time of the rape, were called. Their evidence would have been critical to the prosecution case.
The prosecution did not prove the necessary elements of either count beyond reasonable doubt. For these reasons, I found that the evidence is so lacking in weight and reliability that I could not safely convict on it.