R v Zhao

[2024] SADC 165

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v ZHAO

Criminal Trial by Judge Alone

[2024] SADC 165

Reasons for the Verdict of her Honour Judge Schammer 

18 December 2024

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES

CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - STATEMENTS MADE IN PRESENCE OF ACCUSED AND RELATED CONDUCT - PARTICULAR CONDUCT

CRIMINAL LAW - EVIDENCE - COMPLAINTS

CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY

The accused, Yibo Zhao, is charged on Information dated 28 September 2023 with one count of rape, pursuant to s 48 of the Criminal Law Consolidation Act 1935 (the Act) (count 1) and, in the alternative, one count of Unlawful Sexual Intercourse with a person under the age of 17 years, pursuant to s 49(3) of the Act (count 2).

The alleged offending occurred at Newton on 7 November 2022. The complainant, ZQ, (date of birth: 10 July 2006) was a 16-year-old international student, attending high school in Adelaide. The accused was also an international student, attending a different high school in Adelaide. The accused turned 18 on 24 October 2022.

ZQ and the accused commenced a romantic relationship in July 2022, during which they engaged in consensual sexual activity. On at least one such occasion, the accused filmed that consensual sexual activity. He retained the recording of that sexual activity on his mobile phone. The recording was in evidence (the video).

ZQ claims that she broke off the relationship with the accused in September 2022. Thereafter, she claims that the accused threatened to release this recording (or other similar recordings) unless she continued to engage in sexual activity with him (the threats). Evidence was led at trial of social media communications made between the accused and ZQ, in Mandarin, translated into English, during which the accused made various threats to ZQ. In issue was the precise nature of those threats.

ZQ claims that because of the threats, she engaged in sexual intercourse with the accused, against her will on Monday 7 November 2022 at the accused’s homestay residence in Newton. She reported the alleged offending to police on Thursday 10 November 2022.

The accused denied engaging in sexual intercourse with ZQ on 7 November 2022, or on any day after he turned 18.

The defence case was that on Wednesday 9 November 2022, ZQ stabbed the accused multiple times when he tried to stop her from carrying through with threats to engage in self-harm. This was said to give rise to a potential motive for ZQ to lie about the alleged offending. Another potential motive to lie was said to arise from the accused’s demands that ZQ refund him a sum a money equivalent to the cost he incurred to purchase her gifts during their relationship.

On 10 November 2022 and after ZQ had reported the alleged offending to police, the accused sent messages to his homestay host, which the prosecution relied upon as constituting an implied admission as to the offending.

The accused did not give evidence but called evidence from two friends.

ZQ gave evidence by way of two prescribed interviews and at trial with the assistance of an interpreter.

Although important aspects of ZQ’s account were supported by other evidence, ZQ was a poor witness, and there were several inconsistencies and anomalies in her evidence, which impacted negatively on the Court’s assessment of her evidence.

Findings:

The accused made the threats as alleged by ZQ.

Notwithstanding the threats, ZQ continued to communicate with the accused online and to see him for purposes other than engaging in forced sexual activity. ZQ‘s ongoing communications with the accused demonstrated she still held romantic feelings for him, notwithstanding the threats.

In such circumstances, the Court cannot exclude, as a reasonable possibility, either that ZQ willingly engaged in sexual intercourse with the accused on 7 November 2022 or that ZQ did not engage in sexual intercourse with the accused on 7 November 2022.

Verdict:

Not guilty as to both counts.

Criminal Law Consolidation Act 1935 (SA) ss 46(3)(a)(ii), 47, 48, 49(3), 49(4)(b)(ii); Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) ss 13BA, 34M, 34N, 34P; Summary Offences Act 1953 (SA) Part 17 Division 3, referred to.
Edwards v The Queen (1993) 178 CLR 193; Murray v R (2002) 211 CLR 193; R v MMJ [2006] VSCA 226, considered.

R v ZHAO
[2024] SADC 165

[Criminal]

Introduction

1. The accused, Yibo Zhao, is charged on Information dated 28 September 2023 with one count of rape, pursuant to s 48 of the Criminal Law Consolidation Act 1935 (the Act) (count 1). In the alternative, the accused is charged with one count of Unlawful Sexual Intercourse with a person under the age of 17 years, pursuant to s 49(3) of the Act (count 2).

2. The alleged offending occurred at Newton on 7 November 2022. The complainant, ZQ, (date of birth: 10 July 2006) was a 16-year-old international student, attending high school in Adelaide.[1] The accused was also an international student, attending a different high school in Adelaide. He turned 18 on 24 October 2022.[2]

   [1] Exhibit P21 at [1].

   [2] Exhibit P21 at [2].

3. In mid to late July 2022, ZQ and the accused, who was then aged 17, commenced a romantic relationship, during which they engaged in consensual sexual activity. There is no dispute that on at least one such occasion, the accused filmed that consensual sexual activity (the video).

4. ZQ claims that she broke off the relationship with the accused in about September 2022. Thereafter, ZQ claims that the accused threatened to release the video, and/or other videos, depicting her engaging in sexual activity with him, unless she continued to engage in sexual activity with him (the threats). ZQ claims that because of the threats, she continued to engage in sexual activity with the accused, against her will (the forced sexual activity).

5. The last occasion of forced sexual activity is alleged to have occurred on Monday 7 November 2022 at the accused’s homestay residence in Newton. ZQ claims that on that day, the accused engaged in penile vaginal intercourse with her, during which he put his hands across her neck and mouth to stop her screaming.

6. The prosecution case is that ZQ did not consent to engage in sexual intercourse with the accused at that time, as she was coerced to engage in that activity because of the threats and that the accused knew, or was recklessly indifferent to the fact that she did not consent to such activity (count 1).

7. In the alternative, the prosecution case is that when the accused and ZQ engaged in sexual intercourse on that day, the accused was aged 18 and he knew that ZQ was aged 16 (count 2).

8. The accused denies engaging in sexual intercourse with ZQ on 7 November 2022, or on any day after he turned 18.

9. The accused elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act 1927.

   Elements of the Charged Offences

10. As to count 1, the offence of rape, the prosecution must prove the following three elements beyond reasonable doubt:

    (1)An act of sexual intercourse took place between the accused and ZQ;

    (2)ZQ did not consent to engaging in sexual intercourse;

    (3)The accused knew or was recklessly indifferent to the fact that ZQ was not consenting.

11. ‘Sexual intercourse’ includes any activity involving or consisting of the penetration of a person’s vagina or labia majora, by any part of the body of another person, or by any object and includes the continuation of such activity.

12. As to the second element of the offence, consent to sexual intercourse must be freely and voluntarily given.

13. It is not necessary for a person to demonstrate that they do not consent, for example, by protesting or physically resisting, nor is it necessary for a person to be physically injured in the course of sexual activity to indicate a lack of consent.

14. A person is taken not to have freely and voluntarily agreed to sexual activity if the person agrees because of an express or implied threat to degrade, humiliate, disgrace or harass the person.[3] As such, in the circumstances of this case, if the prosecution proves beyond reasonable doubt that sexual intercourse occurred and that ZQ agreed to engage in sexual intercourse because of the threats, this element will be proved.

    [3] Section 46(3)(a)(ii) of the Act.

15. The third element of the offence relates to the accused’s state of mind. The prosecution must prove beyond reasonable doubt that the accused knew that ZQ was not consenting, or that he was recklessly indifferent to the fact she was not consenting. As to the latter – the prosecution will establish the accused was ‘recklessly indifferent’ to the fact ZQ was not consenting, if it proves beyond reasonable doubt either:[4]

    (a)that the accused was aware of the possibility that ZQ might not be consenting to sexual intercourse, but decided to proceed regardless of that possibility; or

    (b)that the accused failed to take reasonable steps to ascertain whether ZQ did in fact consent to the activity; or

    (c)that the accused did not give any thought as to whether or not ZQ was consenting but proceeded regardless.

    [4] Section 47 of the Act.

16. The prosecution case is that the accused knew ZQ did not consent to the activity because he knew she only agreed to have sexual intercourse with him because of the threats. Although not expressly raised by the prosecutor, on ZQ’s evidence, she attempted to physically resist the accused during the sexual activity and was screaming. If that evidence is accepted, it may also provide the factual basis from which it could be inferred that the accused knew ZQ was not consenting to engage in sexual intercourse with him.

17. As previously stated, the defence case was that no sexual intercourse took place between the accused and ZQ on the date as alleged. However, the very fact that count 2 is charged in the alternative demonstrates that ZQ’s lack of consent is in issue. As such, insofar as is necessary, I direct myself in accordance with the requirements of s 34N of the Evidence Act (SA) 1929 (EA).

18. As to count 2, the offence of Unlawful Sexual Intercourse with a person under 17 years, the prosecution must prove the following two elements beyond reasonable doubt:

    (1)An act of sexual intercourse took place between the accused and ZQ; and

    (2)ZQ was aged under 17 at the time.

19. ZQ was aged 16 on the date of the alleged offence. The accused was aged 18. It is a defence to the charge if the accused believed, on reasonable grounds, that ZQ was of or above the age of 17 years.[5]

    [5] Section 49(4)(b)(ii) of the Act.

    Witnesses and Exhibits

20. The prosecution called evidence from the following witnesses:

    1.The complainant, ZQ. ZQ required the assistance of a Mandarin interpreter;

    2.Ms M Zhou, the teacher to whom ZQ first complained about the alleged offending;

    3.Mr M Colella, the accused’s homestay host; and

    4.Detective Brevet Sergeant A Gracin, the investigating officer.

21. Numerous exhibits were tendered. These included:

    ·an audio-visual recording of an interview conducted between Detective Brevet Sergeant Perry (Officer Perry) and ZQ on 12 November 2022 (the first ZQ interview);[6]

    ·an audio-visual recording of an interview conducted between Detective Brevet Sergeant Close (Officer Close) and ZQ on 28 March 2023 (the second ZQ interview);[7]

    ·a copy of the video;[8]

    ·copies of various communications between ZQ and the accused made over Instagram.[9] These messages were in Mandarin and translated into English. Although translated by a certified interpreter, there were several errors in the translation;

    ·a table of DNA results;[10] and

    ·a series of screenshots from Mr Colella’s mobile phone depicting communications he had with the accused on Thursday 10 November 2022.[11]

    [6]     Exhibit P1, with a transcript of the recording provided as MFI P2.

    [7]     Exhibit P3, with a transcript of the recording provided as MFI P4.

    [8]     Exhibit P7.

    [9]     Exhibits P5 and P6.

    [10]   Exhibit P20.

    [11]   Exhibit P18.

22. In addition, various facts were agreed.[12]

    [12]   Exhibit P21.

23. The accused elected not to give evidence but called evidence from A, who was an international student living at the same homestay accommodation as the accused on the relevant date and from his friend, BQ. Both A and BQ gave their evidence through a Mandarin interpreter.

24. The accused also tendered exhibits including extracts of various audio and video files,[13] together with screenshots taken from his phone of various communications exchanged between him and ZQ in Mandarin and an English translation of those messages.[14]

    Legal Directions

    [13]   Exhibit D22.

    [14]   Exhibits D8, D9, D10, D12, D13 and D17.

    General

25. The prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. There is no onus on the accused to prove anything. It is not for the accused to prove that he did not commit the offence(s) as charged.

26. The accused is presumed by law to be innocent of each charge unless and until the evidence that I accept satisfies me that every element of the offence has been proved beyond reasonable doubt. Nothing short of proof beyond reasonable doubt will suffice.

27. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. Before the accused is convicted of an offence, I must be satisfied that the prosecution has proved beyond reasonable doubt each element of the offence. I must reject beyond reasonable doubt the accused’s denial and any explanation(s) proffered by him.

28. In these reasons, if I use the words ‘proved’, ‘established’ or ‘satisfied’, I mean to a standard of beyond reasonable doubt. If I am satisfied that there is a reasonable explanation consistent with the innocence of the accused, or I am uncertain where the truth lies, as to either count, then I must find that count has not been proven beyond reasonable doubt.

29. I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence that a witness gives. I can reject or accept all or a part of a witness’s evidence.

30. ZQ’s evidence is critical to the prosecution case. I must carefully scrutinise her evidence before I can be satisfied beyond reasonable doubt of its truthfulness and accuracy.

31. An application was made for the audio-visual recordings of the first and second ZQ interviews to be admitted into evidence pursuant to s 13BA of the Evidence Act 1929 (EA).[15] Each audiovisual record was made in accordance with Part 17 Division 3 of the Summary Offences Act 1953 and at the time each audiovisual record was made, ZQ had the capacity to give either unsworn or sworn evidence. ZQ also made herself available for further examination, cross-examination and re-examination.

    [15]   Interlocutory Application dated 2 May 2024, FDN 34. The application was not opposed.

32. I must not draw any inference adverse to the accused because the evidence was admitted in this form, nor must I allow this to influence the weight given to that evidence.

33. ZQ gave further evidence in chief and by way of cross-examination. When she gave her evidence, she did so from outside of the courtroom, via closed circuit television. The court was closed and her evidence was recorded. I must not draw any inference adverse to the accused because of these arrangements, nor must these arrangements influence the weight I give to ZQ’s evidence.

34. The accused elected not to give evidence. As a matter of law there can be no criticism of the accused for doing that. The accused has a right to decline to give evidence and I must not draw any inference adverse to him or the case he has put forward because he has exercised that right. The accused’s silence in this Court does not constitute an admission against him and it cannot be used to fill any gaps in the evidence tendered by the prosecution. His silence cannot be used in assessing whether the prosecution has proven the elements of any offence beyond reasonable doubt.

35. There were several potential witnesses who were not called to give evidence, including ZQ’s host mother and ZQ’s friends, C, J and P. The prosecution bears the onus of proof in this case. I must decide the case only on the evidence before me. If that evidence is insufficient to support a finding of guilt beyond reasonable doubt as to a count or counts, I must find the accused not guilty of the count or counts. I must not speculate about the nature of any evidence I have not heard. I simply do not know what evidence may have been given by any absent witness. I must decide the case only on the evidence before me.

36. As to the making of inferences, I must not guess or speculate. There must be a logical and rational connection between the facts I find and the inferences I draw.

37. I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice, or fear and must not be influenced by public opinion in relation to this matter.

    Complaint Evidence

38. ZQ and Mrs Zhou gave evidence about a conversation they had on Thursday 10 November 2022, wherein ZQ told Mrs Zhou about the alleged offending. This evidence was admitted as evidence of complaint pursuant to s 34M of the EA.

39. Complaint evidence is an exception to the rule which prohibits proof of prior consistent statements made out of court. Complaint evidence is admitted to inform the trier of fact how the allegation first came to light and as evidence of the degree of consistency of conduct of the complainant. It is relevant therefore to my assessment of ZQ’s reliability and credibility.

40. There may be many and varied reasons why an alleged victim of a sexual offence has made a complaint at a particular time or to a particular person. It is for me to determine the significance (if any) of the evidence in the circumstances of this particular case.

41. Importantly, this evidence was not admitted as evidence of the truth of what was alleged and cannot be used as some form of independent evidence to prove what happened.

    Discreditable Conduct

42. Evidence of discreditable conduct was adduced and admitted at trial pursuant to s 34P of the EA, for permissible purposes which did not rely on propensity reasoning.[16]

    [16]   The prosecution disavowed any reliance on the Discreditable Conduct Notice filed on 28 September 2023, FDN 16; T 13.12-17.

43. ZQ gave evidence that there were several other occasions, prior to the alleged offending, when she engaged in forced sexual activity with the accused because of the threats. This evidence was led without objection.

44. The evidence was led for permissible purposes which did not engage propensity reasoning, namely to provide context to the alleged offending and to explain why it was that ZQ submitted to the threats, which were ongoing.

45. I am satisfied that the probative value of this evidence outweighs any prejudicial effect it may have on the accused.

46. ZQ gave evidence that the accused filmed them engaging in consensual sexual activity without her consent. The video was tendered. This evidence was led without objection. In addition, ZQ gave evidence that the accused had threatened to send the video (or other similar videos) to others, if she did not continue to have sex with him.

47. The evidence was led for a permissible purpose which did not engage propensity reasoning, namely, to provide context as to the nature of the relationship between ZQ and the accused, being one where ZQ was alleged to have been subjected to a degree of control and coercion by the accused. It was also evidence integral to the prosecution case as to the threats and to explain why ZQ attended the accused’s house at Newton on the day of the alleged offending.

1. I am satisfied that the probative value of this evidence outweighs any prejudicial effect it may have on the accused.

2. ZQ gave evidence that on occasions other than the charged act, during forced sexual activity with the accused, he would choke and/or strangle her and/or put his hand over her mouth. She also gave evidence of an occasion in mid to late October 2022 when the accused struck her on the hand with his phone, causing it to be bruised and swollen.

3. This evidence was led for a permissible purpose which did not engage propensity reasoning, namely, to demonstrate the nature of the relationship between ZQ and the accused after they had broken up, being one said to be characterised by a power imbalance, where the accused controlled aspects of ZQ’s behaviour. It was also relevant and admissible to explain why ZQ submitted to the alleged offending. The evidence was led without objection.

4. I am satisfied that the probative value of this evidence outweighs any prejudicial effect it may have on the accused.

5. If I accept some or all of the discreditable conduct evidence, I must only use that evidence for the permissible purpose or purposes as specified. I must not use that evidence to reason that the accused is more likely to have committed either of the offences because of this conduct. Further, I must not reason from this evidence that the accused is a person of bad character and is therefore the type of person who would commit either of the alleged offences.

6. If any evidence of discreditable conduct is essential to my process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted, are established beyond reasonable doubt.

   Implied Admission/Consciousness of Guilt

7. Exhibit P18 was admitted as an exception to the hearsay rule, insofar as it was said to be evidence of an implied admission of the accused, namely that he knew ZQ was aged 16 and/or that he had engaged in illegal sexual intercourse with ZQ when she was aged 16. The exhibit was tendered without objection.

8. As the trier of fact, I must determine whether any admission was made, and if so, what was the subject matter of the admission. I must also determine the significance of the statement(s) made by the accused and consider any (other) possible explanation(s) for what was said.

9. The prosecutor expressly disavowed any reliance on this evidence as demonstrating a consciousness of guilt and I have not used this evidence in this way.

10. Exhibit P6 is a series of Instagram messages exchanged between ZQ and the accused on 10 November 2022, the day ZQ reported the alleged offending to the police.[17] During those messages, ZQ informed the accused that she had been to the police station and given a statement.

    [17] These messages are reproduced at [231].

11. The prosecution did not rely on the accused’s immediate response(s) to learning this, that is, in sending ZQ the messages which followed, as being demonstrative of any implied admission by silence and/or indicative of a consciousness of guilt. As such, I have not used that evidence in either of those ways.

    Lies/Consciousness of Guilt

12. Exhibit P18 includes a copy of a photograph sent by the accused to Mr Colella depicting some wounds to his arm. The accused told Mr Colella that ZQ had stabbed him the night before (Wednesday 9 November). BQ gave evidence that on Thursday 10 November, the accused showed him various cuttings on his body and told him that ZQ had inflicted these injuries, with a knife, the day before.

13. It was the prosecution case that the accused lied to both Mr Colella and BQ about ZQ stabbing him on Wednesday 9 November 2022. It was the prosecution case that in fact the injury to the accused’s arm was caused when ZQ had scratched him with her long fingernails when she was trying to resist him during the rape on Monday 7 November.

14. As I will outline later in these reasons, the prosecution did not expressly submit that this was a lie told by the accused out of a consciousness of guilt. Rather the precise submission made was as follows:[18]

    [this was] a self-serving explanation about the injury to his arm where he advances this explanation about [ZQ] stabbing him which I say is self-serving and untrue.

    He’s tried to paint [ZQ] as the aggressor and by doing that gets some sympathy from Mr Colella. I say that those messages are nothing more than to paint [ZQ] in a negative light and try to paint himself as the victim.

    [18]   T 287.7-15.

15. The prosecution could only rely on this alleged lie as corroborating ZQ’s evidence, and as therefore indicative of a consciousness of guilt, if the untruthfulness of the statement was able to be established other than through ZQ’s evidence.[19] In this case, the only other (admissible) evidence as to the cause of the accused’s forearm injury, was ZQ’s evidence that she had scratched the accused’s arm during the alleged offending.[20] As such, the alleged lie cannot be established other than through ZQ’s evidence. It cannot be relied upon to demonstrate any consciousness of guilt.

    [19]   Edwards v The Queen (1993) 178 CLR 193, 211.

    [20]   MFI P2 at line 364.

16. Whether or not the accused has told a lie is a matter for me to determine.

17. If I conclude the accused lied, I cannot use this as evidence of his guilt.[21] It does not, of itself, add to the prosecution case.

    [21]   As outlined below, this was evidence relevant to a potential motive for ZQ to lie about the alleged offending.

18. I must carefully assess all of the evidence to determine whether the prosecution has proved its case, as to either count, beyond reasonable doubt.

    Motive to Lie

19. The accused contended that ZQ had a motive to lie about the offending, namely, to deflect blame and attention away from her in circumstances where she was alleged to have stabbed the accused several times with a knife, the evening prior to her reporting the alleged offending, when he stopped her from engaging in self-harm.

20. In addition, ZQ was cross-examined to the effect that she had made the allegations in response to the accused demanding he pay her money to reimburse him for expensive gifts he had given her during the relationship.

21. I must consider the possibility of a motive (or motives) for ZQ to lie, as this is relevant to ZQ’s credibility.

22. Even if I reject the existence of any alleged motive to lie, the absence of any such motive does not strengthen the prosecution case, rather the position remains neutral.

23. ZQ’s evidence is critical to the prosecution case as to each count. As such, I must be satisfied that her evidence is both true and accurate. It is not for the accused to demonstrate or prove to me that she is wrong or lying. There may be many reasons that a witness may lie and I must not speculate about those.

24. I must not treat ZQ’s evidence as being more credible or more believable simply because there is no evidence to provide a reason for why she might be lying. I must carefully consider all of the evidence to determine whether I am satisfied as to her credibility and reliability.

    Prosecution Case

    Complainant’s Evidence

    Introduction

25. ZQ participated in two prescribed interviews on 12 November 2022 and on 28 March 2023, at which time she was aged 16. She was interviewed by a different officer and assisted by a different interpreter at each interview.

26. During each interview, ZQ was clearly reluctant to describe occasions when she had engaged in sexual activity with the accused. There are aspects of the second ZQ interview, in particular, which are difficult to properly understand, due to this reluctance.

27. ZQ also gave further evidence-in-chief and was cross-examined at trial, again with the assistance of several different interpreters. At the time of trial, ZQ was aged 18 and living in Sydney. She was required to travel to Adelaide twice to complete her evidence, given difficulties which were encountered in facilitating interpreters.

    Personal Circumstances

28. ZQ gave evidence that she came to Australia in February 2022 as an international student. She lived with a host mother at Hove with two other international students. She caught a train from Hove to the city to attend school.[22]

    Relationship with the Accused

    [22]   T 82.27-83.7.

29. ZQ gave evidence that she met the accused at an ice-skating event organised for international students in July 2022 and they commenced a romantic relationship, shortly thereafter, in mid-July 2022.[23] ZQ was in Year 10. The accused was in Year 11 at a different school.[24] They knew how old each other was, because they knew each other’s birthdays.[25] They had told each other their birthdays after the ice skating and before they started their romantic relationship.[26]

    [23]   MFI P2 at lines 30 and 47; MFI P4 at lines 1399-1431.

    [24]   T 84.2-18.

    [25]   MFI P2 at line 82.

    [26]   MFI P4 at lines 1515-1533.

30. ZQ and the accused communicated in Mandarin. They communicated online via WeChat and Instagram. In addition, ZQ would catch the bus from the city to visit the accused at his homestay house at Newton, after school, one or two days a week. To get home, she would catch a bus to the city and then a train to Hove. She rarely visited the accused on the weekend. Sometimes they would play video games or study at his house. However, ZQ disagreed with a proposition that sometimes when she visited, the accused would cook a meal for her in the kitchen.[27]

    [27]   T 84.37-85.3; T 85.18-37; T 87.34-88.22.

31. ZQ never told her host mother that she was seeing the accused. She said it was unnecessary for her to let her host mother know where she was going, if it was before her 9:00pm curfew.[28] She said she never stayed out past 9:00pm, so she never needed to ask her homestay mother for permission to do so. She said she never lied to her home stay mother.[29]

    [28]   T 86.11-22.

    [29]   T 95.31-96.9.

32. Various audio files (in Mandarin) were played to ZQ in cross-examination and propositions put to her, to contradict that evidence. These audio files were not translated, nor time stamped and as such it was impossible to determine whether they represented the entirety of a conversation (or conversations). ZQ did not agree with many of the propositions put to her. There was no evidence to the contrary.

33. However, ZQ did give evidence in cross-examination that the accused wanted her to go to his house for a party and to stay overnight and that he wanted her to lie to facilitate this. She agreed that they discussed using another person, ‘aunty’ to provide an excuse. ZQ told the accused that she knew what to say to her host mother and to leave it with her to manage. ZQ gave evidence that although this never actually eventuated, she was prepared to lie to her homestay mother at that time.[30]

    [30]   T 96.12-100.25; T 104.37-105.4.

34. ZQ denied a proposition put to her that she and the accused had in fact used a woman known as ‘aunty’ to help her lie to her homestay mother.[31] There was no evidence to the contrary.[32]

    [31]   T 105.8-16.

    [32]   Noting that ZQ did agree that a voice message sent to her by the accused included a discussion about some kind of assistance being provided to them by ‘aunty’ in the context of ZQ’s homestay family making things difficult; T 104.8-26.

35. During the relationship, the accused worked at a restaurant in Chinatown. If the accused was working at night, ZQ would not visit him after school that day. ZQ worked at the same Chinatown restaurant for a few weeks, however she never worked the same shift as the accused.[33]

    [33]   T 87.7-24.

36. ZQ gave evidence that she started having consensual sexual intercourse with the accused at the end of July 2022. She said they would have sex about once a week, at his place. This was ‘the most common natural form of sex’, later confirmed to be penile vaginal sex. The accused wore a condom once or twice and would ejaculate outside of her.[34]

    [34]   MFI P2 at lines 90-98, 483-513.

37. ZQ said that she and the accused liked one another and it was a normal relationship. They would hang out and play together.[35] They attended the cinema and karaoke together in the city on 14 July, met in Rundle Mall on 15 July, went together to Glenelg on 20 July and spent time together at Belair National Park on 21 July. On occasions when they were out together, ZQ and the accused would record themselves or take photographs.[36]

    [35]   MFI P4 at lines 1429-1452.

    [36]   T 92.7-93.4.

38. During the relationship, the accused bought ZQ some gifts, including a designer lipstick, some designer earrings and a Louis Vuitton bracelet. ZQ said she accepted the first two gifts, because at that time the relationship was good. She refused to accept the bracelet, which was offered at a time when the relationship was not good.[37]

    [37]   T 53.24-54.13; T 91.7-32.

39. In cross-examination, ZQ gave evidence that she sent the accused an audio message, at a time when they were no longer in a relationship, wherein she told him she had left a bracelet at the restaurant where they worked in Chinatown and asked him to see if it was in a compartment there. The accused sent her an audio message in response, saying that he had looked for it but could not find it. ZQ denied this was a bracelet the accused had given her and said it was from her mother.[38] There was no evidence to the contrary.

    The Video(s)

    [38]   T 155.4-156.35.

40. ZQ gave evidence that during the relationship, the accused recorded her engaging in sexual activity with him using a handheld mobile phone. She said she thought he had done this on two or three occasions. She noticed the accused was recording and asked him to stop recording but he did not stop recording. She tried to grab the accused’s phone to stop him from recording but was unsuccessful. [39]

    [39]   MFI P2 at lines 153-167; 182-192.

41. Exhibit P7 is a disc containing an audiovisual recording created on 21 August 2022 (the video).[40] The video depicts ZQ and the accused in his bedroom at Newton and was obtained by police from the accused’s mobile phone.[41]

    [40] Exhibit P21 at [24].

    [41] Ibid at [23].

42. The video depicts ZQ putting her mouth on the accused’s penis. ZQ can be seen to try unsuccessfully to take the phone away from the accused and to use her finger and hand to try to cover the camera, both before and after the act of fellatio. It is apparent from the video, and I find, that ZQ was reluctant to be filmed, however, with the accused’s encouragement, she continued to engage in fellatio with him.

43. The voices of both ZQ and the accused speaking in Mandarin, can be heard on the video. However, there was no translation (or transcript) produced to the Court of the audio on that recording.

44. ZQ gave evidence during the second ZQ interview and at trial that she had never actually seen what was on the video (or videos).[42]

    [42]   MFI P4 at lines 1220-1223; T 95.19-21.

45. She thought the video was recorded in around late July or early August, being at a time when she still had happy, positive feelings about the relationship.[43]

    The Break-up

    [43]   T 94.21-36.

46. During the first ZQ interview, ZQ stated that the relationship ended on 7 September 2022.[44] She said she and the accused broke up because they were both unhappy in the relationship, as their characters did not match.[45]

    [44]   MFI P2 at line 32.

    [45]   MFI P2 at lines 50-59.

47. In the second ZQ interview, ZQ said that she and the accused broke up at the end of September, nearly October.[46] She said that she ended the relationship, over WeChat, because they were incompatible.[47] The accused did not accept it at first, but after she told him multiple times, he finally agreed.[48]

    [46]   MFI P4 at lines 160-164.

    [47]   MFI P4 at lines 1466-1491.

    [48]   MFI P4 at lines 1493-1505.

48. At trial, ZQ gave evidence that it was her decision to end the relationship and she had told the accused ‘face to face’.[49] She could not remember the exact date they had broken up.[50]

    The Threats

    [49]   T 42.12-18.

    [50]   T 119.38-120.2.

49. ZQ gave evidence that after they broke up, she continued to have sexual intercourse with the accused, but that this was no longer consensual. She said, at first, that she could not recall how many times she had non-consensual sex with the accused but that it was more than once.[51]

    [51]   MFI P2 at lines 106-113.

50. In the first ZQ interview, ZQ said that she thought that the first time she had non-consensual sex with the accused was within a week of their break-up.[52]

    [52]   MFI P2 at line 121.

51. When asked how this had happened, she explained that she was reluctant to do this, but if she did not, the accused had threatened to publish the videos he had made, during their relationship, of them engaging in sexual activity.[53] When asked if there were consequences, in her culture, if he had sent the videos to others, she said, ‘that’s not gonna be good, that will be really bad.’[54]

    [53]   MFI P2 at lines 129-143.

    [54]   MFI P4 at line 1554.

52. In the second ZQ interview, ZQ said that the non-consensual sex started about two weeks after the break-up. When asked in cross-examination as to why this was different from what she had said in her first interview, ZQ said this was because of the large gap between the two interviews and she could not remember clearly. She said the non-consensual sex started within one to one and a half weeks after the break-up.[55]

    Forced Sexual Activity (Uncharged Acts)

    [55]   T 120.11-25.

53. In the first ZQ interview, ZQ was asked if she could recall what had happened the first time she had non-consensual sex with the accused.

54. ZQ said that she could not remember everything but that it had started on WeChat. The accused had asked her to come over to his place and threatened to publish the videos if she did not come over.[56] She remembered that she arrived at his place and he showed her a video.[57] The accused had said words to the effect of, ‘I’ve got the video here and if you are disagreeing, I will publish it.’[58] He then forced her to have sex.[59]

    [56]   MFI P2 at lines 217-228.

    [57]   NB there is an error in the transcript of MFI P2 at line 238. The transcript says, ‘… I arrived at eight’. It is apparent from the recording, Exhibit P1, that the words said were, ‘I arrived at his place.’

    [58]   MFI P2 at lines 238-243.

    [59]   MFI P2 at line 247.

55. As to how the accused had forced her, ZQ explained that she had sensed this from his tone and from his aggression.[60] He was agitated. He pulled her onto his bed and started undressing her.[61] She told him, ‘I don’t want to have sex, don’t force me.’[62] He had said something like, ‘once you get here you are not in control anymore.’[63] He did not wear a condom, nor did he ejaculate inside her.[64]

    [60]   MFI P2 at line 251, noting these words are apparent from the recording, but marked partly as illegible in MFI P2.

    [61]   MFI P2 at lines 253-259.

    [62]   MFI P2 at line 268.

    [63]   MFI P2 at line 274.

    [64]   MFI P2 at lines 275-280.

56. ZQ explained that this had happened again over five times. She kept going back to the accused’s place for two reasons – namely his threat to publish the video(s) and because he knew where she lived and had made threats to go to her place.[65] These threats had been made over WeChat and by telephone.[66]

    [65]   MFI P2 at lines 288-299.

    [66]   MFI P2 at lines 300-305.

57. In the second ZQ interview, ZQ said that after they broke up, the accused forced her to have sexual activity and that this had occurred more than one time, until she told the police about the alleged offending in mid to late November.[67] She said the first time this had occurred was two weeks after they broke up.[68] She could not remember anything about that first occasion.[69] Although there was another time the accused had forced her to have sexual activity, between the first and last time, she could not remember what had happened, other than the fact that she did not want to do it.[70]

    The Alleged Offending – 7November 2022

    [67]   MFI P4 at lines 205-235.

    [68]   MFI P4 at line 1233.

    [69]   MFI P4 at lines 1235-1244.

    [70]   MFI P 4 at lines 1246-1277.

58. During the first ZQ interview, ZQ gave evidence that the last time she had sexual intercourse with the accused was ‘Monday just gone’.[71] On that occasion he had hurt her. She said, ‘I didn’t want to go I was forced to go … and I was forced to have sex with him’.[72]

    [71]   MFI P2 at line 102; see also lines 312-318. The Monday prior to the first ZQ interview was Monday 7 November 2022.

    [72]   MFI P2 at lines 321-323.

1. ZQ said that she had told the accused, again, that she was not his friend and he threatened her. She described lying on her back on his bed. He stopped her from making any sound by putting his hand over her mouth and nose. He started choking her.[73] When asked to explain how the accused had choked her, ZQ said:[74]

   … sometime he used both hands to choke me other time he used one hand to choke me and one hand over the other hand over my mouth.

   [73]   MFI P2 at lines 326-340.

   [74]   MFI P2 at line 344.

2. Although she could not be sure, she thought he used both hands to choke her.[75] She could not breathe. She tried to breathe through and to pull his arm away. At that time her nails were quite long and sharp. She said she scratched the accused’s arm and he let go.[76]

   [75]   MFI P2 at line 348.

   [76]   MFI P2 at lines 356-364.

3. ZQ was asked if the accused had ejaculated inside her and she gave the following evidence:[77]

   ZQI’m not sure he he

   JPOK do you know if he ejaculated outside of you

   Interpreter         (translating the question)

   JPSo you’re just not sure if he ejaculated or not ok no worries.

   [77]   MFI P2 at lines 520-523.

4. When asked what had happened thereafter, ZQ said the accused had tried to take her phone away from her so that she could not contact anyone. They went outside to a courtyard area where there was a swimming pool. She was worried he would throw her phone in the pool.

5. She said the accused was making demands of her to take back what she had told her friends about his bad behaviour, about him threatening her and being physical. He wanted her to talk to them and say he had never done anything like that.[78] She agreed to do ‘all the things’ and then he let her go home.[79] She caught the bus into town at about 7:40pm and then a train home at about 8:30pm.[80]

   [78]   MFI P2 at lines 375-386, noting that although ZQ’s response was originally interpreted as the accused having said ‘take him back’, when this part of the evidence is carefully considered, I am satisfied that this response was misunderstood by the interpreter.

   [79]   MFI P2 at lines 387-397.

   [80]   MFI P2 at lines 405-416.

6. The accused’s homestay host was home at that time.[81]

   [81]   MFI P2 at line 401.

7. During the second ZQ interview, ZQ confirmed that the last time she and the accused had forced sexual intercourse was on the Monday, three days before she had reported the alleged offending to the police.[82]

   [82]   MFI P4 at lines 250-293.

8. ZQ was asked to describe, in more detail, what had happened at that time. She said that the accused had asked her to come to his house and when she got there, they argued about something and he had hit and held her, causing a bruise on her left upper arm. He had held her neck and covered her mouth with his hand so she could not breathe.[83]

   [83]   MFI P4 at lines 302-339.

9. When asked what had happened next, ZQ said that the accused’s homestay (host) was in the house, had heard ‘it’ and asked what was going on. She remembered it was around 6:30pm or 7:00pm and then she went home.[84]

   [84]   MFI P4 at lines 343-377.

10. When asked to describe what had occurred in terms of sexual activity on that occasion, ZQ explained that the accused had told her if she did not do ‘that’, he would give the video to another person. When asked what ‘that’ was, she responded ‘just regular sex’, and clarified this to mean penile vaginal intercourse.[85]

    [85]   MFI P4 at lines 387-438.

11. ZQ said that the accused grabbed her by the left arm to take her into his room and pushed her onto the bed. He told her that unless she did ‘the thing’ with him, that is, penile vaginal intercourse, he would show the video to her friends and someone would know her. She tried to take the phone from his hands but he took the phone back. He was angry. She saw that he had already sent the video on his social account and he deleted it after about two to three minutes.[86] She gave the following evidence:[87]

    QUm and then he after two to three minutes he deleted the video, yep okay and what happened after he deleted the video?

    AAh he said to me like he already sent to the video to his social account.

    QMm hmm.

    AIf I don’t do the the thing with him he will send it to like more people.

    QOkay, so he said if you don’t do the thing um did he tell you the, with his words what he wanted you to do?

    AAh the sexual activity.

    [86]   MFI P4 at lines 462-552; lines 620-705.

    [87]   MFI P4 at lines 554-566.

12. ZQ confirmed later in the second ZQ interview that she did not see the video. However, the accused told her it showed them engaging in sexual activity together. She knew that he had recorded them having penile vaginal intercourse, two or three times, during their relationship. She confirmed that at the time these recordings were made, she consented to that sexual activity, but did not consent to the recording of it.[88]

    [88]   MFI P4 at lines 1077-1212.

13. ZQ told Officer Close that thereafter, she tried to scream, because she did not want to have sex with the accused. He put his hand over her mouth and held her neck. He used two hands to cover her mouth for five to ten or maybe 15 seconds. She could not breathe when he did that.[89] ZQ said, ‘it was one hand or two hands to grab my neck’. His hands were on her neck for about five to ten seconds and she could not breathe. She tried to push him and grab his hand to get it off her neck but he was too strong. The accused stopped holding her neck when he saw that she could not breathe.[90]

    [89]   MFI P4 at lines 712- 793.

    [90]   MFI P4 at lines 799-855.

14. ZQ said the sexual intercourse lasted for about half an hour. She was crying and trying to stop him by screaming and pushing his shoulder.[91] She said it was uncomfortable and scary. It stopped because she was screaming so much.[92] The following exchange occurred:[93]

    [91]   MFI P4 at lines 908-963.

    [92]   MFI P4 at lines 899-983; noting that prior to this exchange, ZQ said that the sex had occurred before she was held by the neck and mouth; line 881. After carefully reviewing this portion of the interview, I consider this is the result of a misunderstanding and what she was trying to say was that the sex had already started when accused was holding her neck and mouth. He did so because she was screaming. See in particular line 917 when ZQ responded, ‘that’s all’ when asked to describe what had occurred during sex (being after she had described having her mouth covered and neck held).

    [93]   MFI P4 at lines 985-999.

    QOkay. Do you know what ejaculation means? No? Um.

    (inaudible)

    QYep.

    PJust show it… or.

    QDo you know what that means?

    AMm.

    QDid- did that happen or not?

    ANo.

15. She said the accused did not use a condom.[94]

    [94]   MFI P4 at lines 1001-1011.

16. The following exchange occurred:[95]

    [95]   MFI P4 at lines 1013-1053.

    QOkay. Um okay so um you were screaming so much that it stops. Okay and then he put his hands over your mouth to stop you screaming. Okay, I understand what you’re saying. Okay, um okay so you said the homestay person asked what was going on. Yep. Where, um where was the homestay person?

    AOut his door.

    QOkay, outside his door?

    AMm.

    QUm.

    ASo outside the room.

    QOutside the room. Um did the person um see what was happening?

    ANo.

    QOkay. Um and was the door open or closed?

    AClosed.

    QOkay. Um so the homestay asked what was going on through the closed door.

    AMm.

    QAnd what happened then? So the homestay said what’s going on and then what happened next?

    AHe said nothing happened, just arguing.

    QOkay, yep, he said nothing happened just arguing. Yeah? And then what happened?

    AAnd after that he, he half an hour.

    QMm hmm.

    AThat I went back home.

17. In cross-examination, ZQ was asked if the homestay host had come to the door during the half hour when the accused was having sex with her and she was screaming. She said, ‘I think so’.[96] She said he had enquired whether she was okay but she had not said anything.[97]

    [96]   T 182.24.

    [97]   T 182.25-29.

18. In cross-examination, it was suggested to ZQ that the reason she went to see the accused on 7 November was because she still had feelings for him and wanted to talk about their relationship. ZQ disagreed. She said:[98]

    I had no feelings for him. I wanted to end that relationship – relationship entirely – so that he could leave me alone, not harass me anymore.

    [98]   T 176.15-19.

19. It was put to ZQ that once she arrived at the accused’s house that afternoon, he had cooked them dinner and they had then eaten that in his room. ZQ’s response, in each instance, was ‘maybe’. She could not remember if they had done any homework together. She agreed that they had argued and that the argument had continued outside in the pool area because they were too loud inside. She disagreed that the argument was because she was chasing another boy.[99] She gave the following evidence:[100]

    Q.Did he say that he told you he was going to contact the other boy to let him know that you were still in a relationship with him.

    A.Maybe he tried to contact the other boy, but we were not in a relationship. We ended our relationship long time ago.

    Q.And you also I suggest argued about the link you had sent to him of the Chinese girl the day before.

    A.Yes.

    [99]   T 177.5-178.14.

    [100] T 178.15-23, see discussion at [208] herein with respect to the ‘link’.

20. ZQ agreed that during the argument, the accused had taken her glasses from her head and thrown them in the pool.[101] She agreed that she had screamed and that in response, the homestay host came outside and helped to get her glasses out of the pool. She went into the accused’s room to get her bag and then left.[102]

    [101] T 183.23-33.

    [102] T 183.34-184.18.

21. It was suggested to ZQ in cross-examination that the accused had left with her, that he caught the bus into town with her, they went to McDonalds together and that he walked her to the train station. She said she did not remember this and did not think the accused was with her in town, as she left his house by herself.[103]

    Other Physical Violence

    [103] T 184.18-37.

22. When ZQ was asked during the first ZQ interview to explain how the accused had filmed her during sex, she said it occurred during consensual sex. When asked if she would continue to have sex with the accused when he was filming, the interpreter translated ZQ’s response as follows:[104]

    [104] MFI P2 at lines 196 -212.

    LIUUm when he was err when he was recording me I wanted to scream

    PERRYMmhh ok and did you scream

    LIU(Interpreting the question)

    QU(Answering)

    LIUUm err yes I did and he used his hand to stop he places his hand on my mouth to stop me from making noise

    PERRYAnd when was that and when did that happen

    LIU(Interpreting the question)

    QU(Answering)

    LIUUm it happened between mid of err October to end of October

    PERRYMid of October to end of October. Ok and so him putting his hand over your mouth um that type of behaviour, did that happen just one (1) time or more than one (1) time

    LIU(Interpreting the question)

    QU(Answering)

    LIUUm err two (2) two (2) to three (3) times

    PERRYTwo (2) to three (3) times and when did those other times happen

    LIU(Interpreting the question)

    QU(Answering)

    LIUIt happened between mid October to early november

23. When asked if she had ever received any injuries from the accused, ZQ explained that in late to mid-October, the accused had grabbed her phone from her and would not give it back. When she tried to get it back from him, he used his phone to try to smash her hand away, causing her hand to become quite bruised and swollen.[105]

    [105] MFI P2 at lines 459-480.

24. ZQ said that she had not sought medical attention at that time or at any time when the accused had strangled her.[106]

    Social Media/Audio and Video Files - August to October 2022

    [106] MFI P2 at line 481.

25. ZQ and the accused exchanged numerous messages in Mandarin on WeChat and other social media platforms. None of the WeChat messages were in evidence.

26. ZQ had several Instagram accounts.[107] She primarily communicated with the accused on an Instagram account under the name of ‘sXXX’.[108] Occasionally, she communicated with him via other Instagram accounts under the names ‘linXXX’ and ‘zihXXX’.[109] The messages in evidence were translated, but in certain respects, the translation was identified as containing inaccuracies.

    [107] The account names have been changed to maintain confidentiality.

    [108] Exhibits P5, P6, D8, D10, D12, D13 and D17.

    [109] Exhibit D9.

27. The messages were relevant to demonstrate the nature of the relationship between ZQ and the accused (including when they broke up) and to corroborate ZQ’s evidence about the accused threatening to publish the video(s) if she did not continue to have sex with him.

28. The messages show the relationship was volatile and unhealthy, marked by mutual jealousy and immature behaviour. The couple argued from as early as mid-August 2022.

29. ZQ acknowledged she tried to catch the accused talking to other girls by pretending to be someone else online. She tried to make the accused jealous when she believed he was seeing other girls. He fuelled her jealousy by taunting her about other girls.

30. Importantly, the messages demonstrate that from early in the relationship, the accused treated ZQ with disrespect, he bullied and taunted her and was most persistent in requests made of her. To put it another way, the accused would not take no for an answer.

31. ZQ was examined and cross-examined at length about the messages. Some of the questioning was to elicit from ZQ her understanding of messages sent by the accused and/or to explain what she had meant when she sent various messages to him. In addition, various propositions were put to ZQ as to the status of the relationship at various dates, by reference to the messages and to various video and audio files.

32. ZQ agreed that in early August 2022 she was upset with the accused after he told her that he had gone to an activity with a Vietnamese girl who attended her school and that he was intimate with that girl. She argued with the accused about this.

33. On 4 August 2022, ZQ sent the accused a message on her ‘linXXX’ account stating, ‘Why are you online!’.[110] She disagreed with a proposition that she had sent this message as she was upset the accused was chatting to other girls on Instagram.[111]

    [110] Exhibit D9 at p 3.

    [111] T 105.24-107.27.

34. ZQ agreed that she had posted on Instagram, an intimate photograph she had taken of the accused lying on his bed with his shirt off. She subsequently posted that the accused’s roommate had taken that photograph. ZQ and the accused argued, online, about this.[112] It was suggested to ZQ that the accused was angry with her for posting the image. She denied this and said the accused had wanted her to post the image. Rather, he was angry with her for posting that it was his roommate and not her, who had taken that photograph.[113]

    [112] Exhibit D8.

    [113] T 109.16-112.15.

35. ZQ disagreed with a proposition put to her in cross-examination that the accused had told her he did not want people to know that they were sleeping together. She maintained that he had told her to post the image.[114] She disagreed that the accused did not want his ex-girlfriend to see the photo or for their common friends to think they were in an intimate relationship. She maintained that the friends that they had in common, knew their relationship.[115]

    [114] T 112.31-35.

    [115] T 112.1-10.

36. During this series of messages, sent on 18 August 2022, ZQ told the accused that she was very apologetic. The accused described her as being ‘so fake’ and ‘shady’. At one stage during the argument, he sent her a message ‘Goodbye’ including an emoji of a hand waving goodbye. Later, after numerous apologies from ZQ wherein she stated, ‘I was really wrong, I knew it was wrong, I don’t mess around anymore’, he replied, ‘Delete your screenshot. I fucking let you take a screenshot.’ ZQ then confirmed it was deleted.[116]

    [116] Exhibit D8, various pages.

37. It is impossible to determine, simply from reading the messages, whether the accused was angry with ZQ for posting the original photograph or for her subsequently posting that his roommate had taken it. However, midway through the exchange, the accused told ZQ she was being hypocritical and when she sought an explanation, he said, ‘Thanks for the photo his roommate sent…Never mind’. This lends some support for ZQ’s explanation as to the cause of the argument.

38. What is clear from this exchange of messages is that as early as mid-August 2022, the accused was the dominant person in the relationship. His message, ‘Goodbye’, read in context, was clearly intended as a threat to end the relationship because of what she had done. Irrespective of what precipitated the argument, ZQ’s responses to the accused were overly apologetic, with her almost begging for his forgiveness. On a separate Instagram account, that same day, ZQ sent the accused messages saying, ‘I don’t want to break up…I really don’t want to break up.’[117]

    [117] Exhibit D9 at p 4.

39. During cross-examination, ZQ agreed that during August 2022, she and the accused would sometimes behave jealously towards each other. However, she disagreed that she would talk to him about other boys she liked to make him jealous.[118]

    [118] T 113.29-114.5.

40. On 22 and 23 August 2022, ZQ and the accused exchanged messages, which started with ZQ stating, ‘Don’t cry… I heard you crying’. She stated, ‘Didn’t tell you about the guy I saw…That’s the guy I liked before’.[119] ZQ said she sent this message to the accused as he was having intimate relationships with the Vietnamese girl and his ex-girlfriend. They were arguing over this. It was suggested to ZQ that she had sent this message to taunt the accused and to make him jealous. She said it was possible she sent it to make the accused jealous but that she was not seeing anyone else while she was in love with the accused. When asked again if she had sent this to make the accused jealous, ZQ said, ‘It could be, but I don’t remember’.[120]

    [119] Exhibit D10.

    [120] T 114.24-115.1.

41. On 5 September 2022, ZQ used her third Instagram account, ‘zihXXX’, to message the accused, pretending to be someone else. She started by saying ‘Hello’ and when he replied, she wrote, ‘I’m just scrolling on Instagram…And a cute guy says hi…just curious…do you have a girlfriend’.[121] The accused responded by texting ZQ’s name and shortly thereafter stated that he knew it was ZQ who was messaging him. They then argued about her being fake. He told her, ‘Don’t do that with me…You can’t play with me’.[122] They discussed how he worked out it was her and he said that one reason was because, ‘…we fight these days’.[123]

    [121] Exhibit D9 at pp 5-6.

    [122] Exhibit D9 at p 7.

    [123] Exhibit D9 at p 11.

42. ZQ agreed that she had done this as she was jealous of the accused talking to other girls and she believed he was talking to other girls.[124]

    [124] T 118.3-12.

43. In cross-examination, ZQ agreed that although she and the accused argued on 5 September, they did not break up that day and that the next day, 6 September, they had gone to the Royal Show together.[125]

    [125] T 119.8-19.

44. ZQ agreed that sometime on or before 7 September 2022, she had sent the accused a photograph of herself cutting her wrists. She denied she had cut herself because she was very homesick in Australia. She said she had done this as she was very upset and depressed because the accused was arguing with her.[126]

    [126] T 120.38-121.26.

45. ZQ agreed that after this, the accused had sent her a message, ‘Don’t be…I’m scared…This is what scares me the most’ to which she replied, ‘Afraid of what…Afraid that one day I will disappear and not reply to your messages…Will you find me when I’m gone’. She denied that she had sent these messages as a threat to hurt herself. ZQ maintained that she sent these messages because the accused was annoying her and making her very upset.[127] When it was pointed out that the accused had replied, ‘…Do what makes you happy…Other than self harm’, ZQ acknowledged that her comments were about self-harm.[128]

    [127] T 122.4-34.

    [128] T 123.1-124.7.

1. ZQ was shown a series of messages between the accused and her friend, C. She was then asked if she had found out that the accused had sent her friend, C, her messages about self-harm. She said, ‘No, this is my first time to see these messages’.[129]

   [129] T 124.12-15, noting the messages between the accused and C were included in a bundle shown to ZQ, and marked as MFI D11, but that document was not tendered.

2. ZQ was then shown a series of messages she had sent to the accused on 12 September 2022: [130]

   [130] Exhibit D12 at pp 1-2.

   ZQ

   What the fuck

   What did you say to C

   Accused

   What did I say?

   I didn’t fucking say anything

   I haven’t even talked to her

   ZQ

   You told her to check my wrist for knife wounds

   What do you want?

   You have to make it so everyone knows I’m depressed

   What are you doing?

   Accused

   ?

   sb

   I was afraid something would happen to you

   For your own good

3. ZQ then agreed with a proposition put to her that she had been angry with the accused for sharing this information with C.[131]

   [131] T 125.17-18.

4. On 8 September 2022, ZQ used the Instagram account, ‘ZihXXX’ to send the accused the following messages:[132]

   Nothing more to say about the two of us.

   WeChat is blocked

   I got sick again just now.

   [132] Exhibit D9 at p 14.

5. The accused replied; ‘?...What’s up’.[133]

   [133] Ibid.

6. ZQ was asked if her message, ‘I got sick again just now’, was a reference to her hurting herself again. She said she did not clearly remember but that she was depressed at that time.[134]

   [134] T 126.5-12.

7. ZQ disagreed with a proposition that although she and the accused were arguing and occasionally blocking each other on social media, they had not broken up officially before 12 September 2022.[135] She agreed that on 13 September 2022, she took some photos of the accused at a park near his house in Newton[136] and that on 14 September 2022, she took a video of the accused at his house.[137]

   [135] T 126.20-35.

   [136] T 127.9-13; Exhibit D22, file 1863; Exhibit P21 at [26.6].

   [137] T 127.17-20; Exhibit D22, file marked ‘14 September’; Exhibit P21 at [26.7].

8. ZQ also agreed that on 14 September 2022, she sent the accused a contact card containing the contact details for his ex-girlfriend. She could not remember why she did this but denied it was to taunt him with her jealousy. ZQ said she was curious to ask him if the girl was his ex-girlfriend, as she had been told by someone that she was. She denied that at that stage she still cared about having a relationship with the accused and that she was still in a relationship with him.[138]

   [138] T 128.26-130.27; Exhibit D13.

9. On 15 September 2022, ZQ changed the subject of the chat to ‘love’. She said she had done this with her other friends as well, as it was a ‘good looking’ subject.[139]

   [139] T 131.13-132.5.

10. On Friday 16 September 2022, the accused sent ZQ messages expressing his anger as she had blocked him on WeChat. ZQ gave evidence that she had blocked the accused on WeChat and they were fighting at this time.[140] She said she was no longer in a relationship with the accused.[141] In response to a proposition put to her in cross-examination, she said that on the day before this, she may have gone to Rundle Mall with another boy who was a good friend of hers.[142]

    [140] T 132.6-14; Exhibit D13 at p 2.

    [141] T 38.4-6.

    [142] T 133.1-6.

11. On 16 September 2022, and in the weeks that followed, ZQ and the accused exchanged numerous messages on Instagram.[143] The prosecution relied on these messages to prove that the accused was threatening ZQ in the manner she alleged. They also relied on the messages to demonstrate the control that the accused had over ZQ during this period, which, on the prosecution case, was after the relationship had ended. The defence case was that these messages demonstrated the relationship remained on foot and that ZQ still cared for the accused, throughout September and October.

    [143] Exhibit P5 at pp 1-11.

12. In cross-examination, ZQ agreed that at this time, she and the accused were accusing each other of seeing other people and that they had argued about this.[144]

    [144] T 136.3-6.

13. During a lengthy exchange on 16 September 2022, the accused told ZQ, ‘Unfriend me?...Ok…I’ve said it many times…Can’t blacklist or unfriend me’, to which ZQ replied, ‘You have to know when to draw the line’.[145]

    [145] Exhibit P5 at p 2.

14. ZQ messaged the accused that she was a WeChat contact of his mum. She gave evidence that this was a warning to the accused that she was able to tell his mum about his abusive messages. She hoped that the accused’s mum would tell him not to continue to threaten her.[146]

    [146] T 39.23-24, noting there is an error in the transcript, where the word ‘frighten’ appears instead of ‘threaten’; T 39.29-32.

15. The accused messaged back that he was also a WeChat friend with her mother. A proposition was put to ZQ in cross-examination that these messages should be understood to mean that the accused was threatening to tell her mother that she was talking to another boy. [147] ZQ initially disagreed with this. It was clear that ZQ was having difficulty understanding the line of questioning ZQ. Later she said:[148]

    The issue was not whether I was seeing another boy or not, the issue was that he was trying to threaten to tell my mum I was seeing another boy but what he wanted to say to my mum I have no idea.

    [147] T 137.32-138.7.

    [148] T 138.12-15.

16. The accused sent a further message thereafter, ‘Then let’s see who’s more powerful…Even my mum won’t argue with me’.[149] ZQ replied, ‘I mean it’. The accused responded:[150]

    [149] Exhibit P5 at p 3.

    [150] Ibid.

    You reckon it helpful?

    I’ve already have one person sent off

    You did it first

    Unfriended me and blacklisted me for no reason

    (my emphasis)

17. ZQ gave evidence that when the accused said, ‘I’ve already have one person sent off’, this was a reference to him having already sent the video to one person.[151]

    [151] T 39.36-40.8.

18. ZQ replied to these messages, ‘Well done’. The following exchange then occurred between 8:57pm and 9:44pm on 16 September:[152]

    [152] Exhibit P5 at pp 4-8.

    Accused

    You listen to me as I said

    I won’t do anything

    Provided that you behave yourself

    But you didn’t

    Posting one now

    I’ll keep posting if you do anything further in the future

    ZQ

    How could I possibly behave myself?

    Accused

    You’ve made all these happen

    ZQ

    You left me no choice again and again

    Really?

    Accused

    What you did yesterday

    I haven’t yet forgiven you

    I didn’t do that

    ZQ

    Why you get cross for no good reason.

    ?

    Accused

    You should consider yourself lucky

    Say no more

    I’ve posted one

    ZQ

    Good job

    Accused

    I’ve told you long ago

    You can’t do things like blacklisting or unfriending

    But look what you have done?

    ZQ

    Who do you think you are?

    Who do you think you are to make such request?

    Are you mad?

    Accused

    You mad?

    You don’t know who is mad?

    What’s going on in your head?

    Acted like that yesterday when you knew you were wrong.

    ZQ

    What do you want?

    Accused

    Then changed again in the morning

    Blacklisted me in the afternoon

    Are you mental?

    ZQ

    Obsessed with the idea of fighting, aren’t you?

    Accused

    Fighting with whom?

    I’m F**king telling you once again, don’t ever f**king try messing around

    Otherwise don’t blame me for being rude.

    ZQ

    So what

    Didn’t you just say

    Get someone to beat him

    Accused

    I’m annoyed to death by you

    What are you up to?

    What did I do?

    Up to what?

    You forgot? You don’t realize your mistakes again?

    ZQ

    You crack me up

    You believe you’re justified, right?

    Stop pretending to be nice.

    (my emphasis)

19. ZQ gave evidence-in-chief that these messages referred to the accused telling her that if she continued to go to his place and have sex with him, he would not send the video to anyone. The reference to him ‘posting’ referred to him sending the video to someone via text message. She said these messages meant that if she did not continue to do what the accused wanted, he would continue to send the video to other people. Where he said he had ‘posted one’, that meant he had already sent the video to someone.[153]

    [153] T 40.23-41.13.

20. ZQ disagreed with a proposition put to her in cross-examination, that these messages had to do with her seeing another boy and specifically a boy with whom she had gone to Rundle Mall. She further disagreed with a proposition that the ‘post’ to which the accused was referring was the photos she had sent to him that showed her self-harming. She disagreed with a proposition that the reason the accused was making these threats was because he was upset that she had been seeing another boy. [154]

    [154] T 138.38-139.11.

21. Sometime later in cross-examination, counsel for the accused told ZQ that she needed to correct something that had been put to ZQ earlier. It had been put to ZQ that the accused’s threat to post something online related to photos of her self-harming. This was said by counsel to have been an error on her part. Instead, it was suggested to ZQ that the threat the accused had made, in these messages, was to post the photograph of ZQ with the other boy in Rundle Mall. ZQ disagreed with this.[155]

    [155] T 150.6-25, noting there is an error in the transcript at line 25. ZQ clearly said ‘Disagree’ not ‘It’s agreed’.

22. Later, in cross-examination, ZQ gave the following evidence about this series of messages:[156]

    [156] T 140.17-141.4.

    Q.'You've made all these things happen' and you responded 'You left me no choice again and again really' and on the next page he said 'What you did yesterday I haven't forgiven you', you see that.

    A.Yes.

    Q.And you replied 'Why you get cross for no good reason'.

    A.Yes.

    Q.And I suggest to you that 'what you did yesterday' was what I put to you a moment ago, that you had gone to Rundle Mall with a male friend.

    A.Yeah, I did go to Rundle Mall with male friend, however, I have no recollection as why he became upset.

    MRS POWELL:      Would you mind repeating that.

    A.I have no recollection why he became upset, probably because I have a blacklisted him.

    MRS POWELL:      I'm afraid I didn't understand that either.

    HER HONOUR:      'I had no recollection as to why he became upset', is that what you said?

    INTERPRETER:     Yes.

    XXN

    Q.So are you now saying you don't know why he was so upset in this argument on 16 September.

    A.Probably he was upset because I blacklisted him.

    Q.Angry because you blacklisted him.

    A.Yes.

23. ZQ was asked if when she said, ‘get someone to beat him’, this was a reference to a comment the accused had made, to beat up the boy with whom she had been with in Rundle Mall the day before. ZQ said that she did not recall.[157]

    [157] T 143.3-14.

24. Although ZQ and the accused continued to message each other that same night, 16 September, the accused did not respond to the last message which had been sent by ZQ at 9:44pm. At 10:24pm, ZQ messaged the accused, ‘Why not reply? ...Feeling guilty, aren’t you?’. The accused did not reply. Between 10:35pm and 11:16pm, ZQ messaged the accused numerous times, endeavouring to continue the discussion. The accused did not reply until 11:17pm, at which time he said, ‘Haven’t you noticed I don’t reply to your blubbering anymore?’.[158]

    [158] Exhibit P5 at pp 8-9.

25. ZQ asked the accused to think about whether he had hurt her and asked him if he was still meeting with his friend, A, for a drink.[159] In evidence, ZQ explained that she knew this meeting was planned because she had spoken about it with the accused, face to face, earlier, before they broke up.[160]

    [159] Ibid at p. 9. It was agreed the message ‘Got hit by lightning?’ was incorrectly transcribed and in fact said, ‘Are you meeting A?”. It was also agreed the message ‘Do you guys fancy a drink?’ was incorrectly transcribed and in fact said, ‘Are you having a drink with A?’, T 43.8-11.

    [160] T 42.30-43.7.

26. The following messages were then exchanged:[161]

    [161] Exhibit P5 at pp 10-11.

    Accused

    What on earth have I done?

    ZQ

    You think

    What did you do

    Accused

    What did I do

    ZQ

    In the afternoon you

    Threatened me

    Accused

    Shouldn’t I?

    You didn’t come today.

    The thing you did on Thursday

    ZQ

    You

    Are

    Threatening me

    Just this one

    Accused

    Your deception

    Your betrayal

    (my emphasis)

27. ZQ gave evidence that when she wrote, ‘In the afternoon…you threatened me’, she was referring to his earlier message, sent that afternoon, wherein he threatened to send the video to someone else.[162]

    [162] T 43.12-20.

28. In cross-examination, it was suggested to ZQ that when the accused wrote, ‘The thing you did on Thursday’ he was referring to her having met the boy in Rundle Mall that day. ZQ said she did not know.[163]

    [163] T 146.4-8.

29. ZQ said she remained in contact with the accused thereafter on Instagram and WeChat because he was threatening to post the video (or videos).[164]

    [164] T 146.9-30.

30. In cross-examination, ZQ was shown a recording taken of the accused near the Adelaide Casino on 22 September 2022. It was suggested to her that she was with him at that time and that she took that video. ZQ said she could not recall being with the accused on that day near the Casino, nor could she remember taking that video.[165] There was no evidence to the contrary.

    [165] T 151.13-152.16.

31. ZQ was asked if she visited the accused at an internet café on 23 September 2022. In response she said, ‘I often go to the internet café to play games’. She later clarified that she did see him at the internet café on that day. She said that she had brought herself flowers that day. She was asked if she had given the accused the flowers depicted in a photograph on a keyboard at the café taken that day. She said, ‘I don’t think so’.[166]

    [166] T 152.17-153.9.

32. ZQ denied seeing the accused at the internet café on 28 September.[167] There was no evidence to the contrary.

    [167] T 153.11-12.

33. On 28 September 2022, ZQ and the accused exchanged the following messages between 12:55am and 12:56am: [168]

    [168] Exhibit P5 at pp 12-13.

    Accused

    WTF

    You better turn it on now

    No mutual following, right?

    ZQ

    ???

    Accused

    Am I too nice to you?

    ZQ

    Mutual followed now

    Accused

    OK

    Go to sleep then

    If it’s me, I prefer PLP

    Just give it to me

    ZQ

    OK

34. ZQ gave evidence that she had both unfollowed and blocked the accused on Instagram, but she ‘refollowed’ him, after he asked her to do so.[169]

    [169] T 43.28-44.21.

35. In cross-examination, she said that when the accused messaged her saying, ‘If it’s me I prefer PLP…Just give it to me’, this was an offer to help her with the subject, PLP.[170] The following exchange occurred: [171]

    [170] T 153.25-36.

    [171] T 153.37-154.10.

    Q.Do you agree that as at 28 September that you had made up from your earlier fight on 16 September.

    INTERPRETER:     Sorry, Mrs Powell, do you say 'make up'?

    MRS POWELL:      Yes, I'll perhaps use a different expression.

    XXN

    Q.The relationship had been repaired since the earlier argument on 16 September.

    A.I can't remember. I can't remember clearly.

    Q.I suggest that at that time, 28 September, that the relationship was back on foot.

    A.Yes.

36. There were no further messages exchanged between ZQ and the accused on the Instagram account ‘sXXX’ until 2 October. On 2 October 2022, the accused tried unsuccessfully to call ZQ at around 10:00pm. Thereafter, the following messages are reproduced on Exhibit P5:[172]

    [172] Exhibit P5 at pp 13-14.

    Accused

    Not answering

    OK

    6

    You go on

    ZQ

    Shit

    Collected

    Accused

    I’ll make you famous in XXX High

    ZQ

    ?

    Accused

    You’ll see

37. ZQ gave evidence that she understood these messages to mean that the accused would send the video to her friends and other students at her school.[173]

    [173] T 46.7-16.

38. In cross-examination, ZQ agreed that on that day, she had argued with the accused about a white boy and a Chinese boy. She disagreed that the threat the accused made, to make her famous, was about him threatening to post photographs of her with other boys.[174]

    [174] T 158.13-27.

39. She was shown photographs of screenshots taken from the accused’s phone (and an accompanying translation) said to represent the same series of messages as those in Exhibit P5, albeit with a different translation. Immediately prior to the accused’s message, translated in this document as, ‘I made you famous at XXX High’,[175] were four messages sent by ZQ translated as, ‘Shit…Took…Fuck…I follow a few from our school’.[176]

    [175] MFI D14.

    [176] MFI D14, noting those four messages were translated in Exhibit P5 as only two messages, namely ‘Shit…Collected’.

40. ZQ disagreed that those four messages were sent to make the accused jealous that she was following other boys at school on social media.[177]

    [177] T 160.2-161.10.

41. ZQ was shown an image, in those same screenshots, of the accused with red hair, dated 9 October 2022. ZQ was asked if during the first week of October she had gone to the accused’s house and dyed his hair red. She said, ‘Maybe’.[178] She agreed that she had gone to Ikea with the accused on 6 October 2022 and that on 11 October 2022, the accused came to see her play badminton with her friends.[179]

    [178] T 168.2-4.

    [179] T 168.5-23.

42. On 12 October 2022, ZQ sent the accused messages, ‘You f**king chatting with Bonnie, right? … You f**k don’t reply, right’.[180] The accused did not reply. When asked during evidence-in-chief what she meant by these messages, ZQ could not remember.[181] In cross-examination, she agreed that at this time she was not happy with the accused as she thought he was talking to other girls on Instagram.[182]

    [180] Exhibit P5 at p 15.

    [181] T 46.22.

    [182] T 169.1-13.

43. ZQ agreed in cross-examination that she met the accused for Hotpot in Hindley Street on 13 October 2022.[183] The next day, when the accused sent her a message, ‘Then I go for that Vietnamese then’, she thought he was trying to make her jealous because he was talking to another girl.[184]

    [183] T 170.2-12.

    [184] T 169.24-170.1.

44. On 15 October 2022, ZQ and the accused exchanged numerous messages during which the accused was insistent that ZQ come to visit him at his house. ZQ told the accused several times that she was too busy to see him as she needed to study for exams. She suggested that he ask other girls. He replied, ‘Don’t want to come?...Didn’t you have fun?’. She replied, ‘Don’t feel like going’. He replied, ‘Say that again’.[185]

    [185] Exhibit P5 at pp 18-20.

45. ZQ gave evidence that these messages related to the accused wanting her to go to his house to have sex with him, notwithstanding he did not mention ‘sex’.[186]

    [186] T 47.5-16.

46. ZQ told the accused she could not see him on Monday but would see him on Wednesday. The accused said, ‘I gave you the opportunity…And you talk to me like that’. He told her to come to see him on both Monday and Wednesday. She reiterated that she could not come on Monday because she had an exam to revise for. The following exchange occurred:[187]

    [187] Exhibit P5 at pp 23-24.

    Accused

    You try

    I said already

    If you don’t come

    You’ll be sorry[188]

    ZQ

    I really can’t go

    Are you my boyfriend?

    Accused

    Then don’t come

    I’m not your boyfriend

    [188] ZQ gave evidence that the correct translation of this and the previous message was – ‘if you try not to come then you will be sorry’; T 47.27-48.36.

    ZQ

    It’s not I don’t want to go

    I can promise to come on Wednesday

    (my emphasis)

47. ZQ gave evidence that she understood, from these messages, that the accused was threatening her.[189] She had sent him the message, ‘Are you my boyfriend’, as they had already broken up.[190] She sent the message, ‘It’s not I don’t want to go’ because she wanted to see him in person to explain their relationship was finished and that she did not want him to threaten her in the future.[191]

    [189] T 47.17-23.

    [190] T 48.37-49.3.

    [191] T 49.7-31; the word ‘stress’ at line 25 is an error – the word used was ‘threaten’.

48. Shortly thereafter, the accused messaged ZQ, telling her to come to his place on Wednesday and Thursday. ZQ said that she could not come on Thursday as she was playing ball, after finishing her revision, but she promised to come on the Wednesday. The accused then told her to come on Monday, Wednesday and Thursday. He said, ‘Come to exercise at my place.’ ZQ explained that what he meant by that was, come to my house to revise for your maths test.[192]

    [192] T 49.32-37.

1. When ZQ was asked if she had sent the accused a link to the profile of an attractive woman on 6 November at 10:05pm, she again responded, ‘Maybe’.[393]

   [393] T 174.3-14.

2. There is a screenshot on Exhibit D22 from ZQ’s ‘sXXX’ Instagram account of a message sent from that account to the accused on 6 November containing a link to the profile of an attractive woman. I find that ZQ sent that link to the accused on that day. Although it is possible ZQ answered ‘maybe’ because she could not recall the precise time she sent that link, she was shown the screenshot of this message. Insofar as her response ‘maybe’ was meant to mean that she agreed she had sent the accused the link but now could not remember what time she sent this on 6 November, this was not clarified in re-examination. I consider her response to this question was evasive.

3. It was submitted that the messages and audio/video files demonstrated that contrary to her evidence, ZQ was still involved in a relationship with the accused until November and that her actions demonstrated she still had feelings for him up until then.

4. None of the WeChat messages were in evidence and therefore only some of the online communications between ZQ and the accused during the relevant period are in evidence.

5. Further, although those messages were translated, the accuracy of that translation is questionable. While obvious errors were identified, the fact is that some of the messages in Exhibit P5 were identical to the screenshots shown to ZQ (MFI D14). Both series of messages were apparently translated by an appropriately accredited interpreter, however the translation differed in many instances. The differences were subtle but where the Court is required to draw inferences from the words exchanged between two people, even a subtle difference, or the use of a different tense, may make a significant difference in the potential inference or inferences that can be drawn therefrom.

6. Cultural issues also play a significant role.

7. However, the Court can only act on the evidence which is before it.

8. The messages demonstrate there were obvious issues in the relationship from very early on. As at 22 and 23 August, ZQ was trying to make the accused jealous because he was talking to other girls (and, in her evidence, had told him he was intimate with those other girls, notwithstanding he was in a sexual relationship with ZQ).

9. The accused sent a message to ZQ on 5 September (in the context of her pretending to be another girl online and trying to catch him cheating), ‘…we fight these days’.[394] It is likely and I find that the reason the accused sent the photograph of ZQ engaging in self-harm to C, was to ask her to look out for ZQ in the context of him having less to do with her in the future, because their relationship was either over or close to ending, consistent with ZQ’s initial evidence that the relationship ended on 7 September.

   [394] Exhibit D9 at p 11.

10. ZQ and the accused continued to interact with each other, both on social media and in person, after 7 September.

11. I consider it likely and I find that although ZQ ended the relationship with the accused on or around 7 September as she told Officer Perry, she was still attracted to the accused at that time and wanted to remain involved with him in some way. She ‘unblocked’ him from WeChat on 8 September. She visited his Newton house on both 13 and 14 September, on the first occasion taking photos of him at a park near his house and on the second taking a video of him at his house. [395] If, on those two occasions, she attended the home to have forced sexual activity with the accused as a result of the threats, it is unusual that she would also take those photos or make that video, using the accused’s phone.

    [395] T 127.9-13; T 127.17-20; Exhibit P21 at [26.6] and [26.7], Exhibit D22, files marked 1863 and ’14 September’.

12. On 16 September, the accused sent ZQ several threatening messages. The tone and content of most of the messages he sent ZQ that day, and many of the messages he sent to her thereafter, was aggressive, condescending, demanding and bullying. However, ZQ continued to engage with him. She tried to keep the conversation/argument going on 16 September, despite the accused stepping away from it for several hours. When he returned to the conversation, he continued to berate her, ‘Haven’t you noticed I don’t reply to your blubbering anymore?’.

13. On 15 October, the accused sent a message to ZQ stating ‘I’m not your boyfriend’. He could not have been clearer. There can be no doubt the relationship was over then, as it most likely was weeks before, yet they still continued to communicate with each other online and see each other thereafter.

14. On the prosecution case this was because of the threats.

15. However, the threats were being made from as early as 16 September and the ‘I’ll make you famous in XXX High’ message was sent on 2 October.

16. The evidence demonstrates and I find that ZQ continued to see the accused in various different social settings, not just at the house at Newton, thereafter. There was no evidence that ZQ gave the accused the flowers depicted in a photograph dated 23 September, or that ZQ visited the accused at an internet café on 28 September or that ZQ was with the accused near the Adelaide Casino on either 22 September or on 31 October.

17. However, ZQ agreed she went to Ikea with the accused on 6 October and that she met the accused for Hotpot on 13 October. In all likelihood she dyed his hair red sometime in early October.

18. The fact that ZQ was unhappy with the accused because he was chatting with other girls on Instagram as of 12 October, demonstrates that she still had feelings for him at that time, rather than simply being relieved that he had shifted his attention away from her and onto another girl or girls.

19. Further, I am satisfied that on 6 November, that is, the day before the alleged offending, ZQ did send the accused a link to the profile an attractive young woman. Although the context in which that link was sent is unknown, this behaviour suggests that ZQ was still interested in engaging with the accused at that time and, consistent with some of her earlier behaviour, likely still jealous about his interest in other women (or at the very least, interested at his reaction to being sent this link).

20. As previously stated, I am conscious of the fact that not all of the communications between ZQ and the accused are in evidence. It is difficult to make inferences from isolated ‘snapshots’ from those communications.

21. However, when looked at in combination with the audio and video files, the messages demonstrate, and I find, that ZQ was still interested in maintaining a relationship of sorts with the accused beyond 7 September, up to, at least 6 November. While it is possible she did so simply to placate him and in response to his threats to publish the videos, some of her behaviour is simply inconsistent with this. Rather, it is consistent with her still having some positive feelings for the accused, notwithstanding that he was treating her appallingly (the latter being amply demonstrated by his social media communications with her).

    What occurred on 7 November

22. It was submitted that there were several differences in ZQ’s evidence and that of Mr Colella, relevant to the circumstances of the offending, which should cause the Court to have at least a reasonable doubt as to the reliability of ZQ’s account.

23. One such difference related to what had occurred next to the pool.

24. Mr Colella’s evidence was that he was in the kitchen when he heard ZQ screaming. He went outside to where ZQ and the accused were, near the pool. He retrieved ZQ’s glasses from the pool at that time. In cross-examination, ZQ agreed that her glasses were retrieved from the pool.

25. In the first ZQ interview, ZQ told Officer Perry that the accused took her phone and had threatened to throw it in the pool. She did not tell Officer Perry anything about the glasses. Mr Colella did not notice either ZQ or the accused holding anything.

26. It was submitted that by mentioning the phone to Officer Perry, and not the glasses, ZQ was simply embellishing her story about the threatened posting of the video.[396] In other words, she was adding detail to make her version of the alleged offending sound more plausible.

    [396] T 313.15-29.

27. I reject this submission, as it simply does not make sense. The video was on the accused’s phone, not on ZQ’s phone.

28. ZQ gave no evidence that the accused did, in fact, throw her phone in the pool. The fact Mr Colella did no see the accused holding a phone is unremarkable. It would be unusual if he did recall such a minor detail. Although ZQ was not re-examined as to why she did not mention the accused throwing her glasses in the pool, before it was raised with her in cross-examination, it may well be that she had simply forgotten that detail, which was insignificant in the context of what she says had occurred to her, in the accused’s bedroom, shortly prior to this.

29. Another potential difference in ZQ’s account and Mr Colella’s evidence related to whether ZQ left the house alone, or with the accused, after the alleged offending.

30. Mr Colella gave evidence that after he retrieved ZQ’s glasses from the pool:[397]

    … She was very polite and said, ‘thank you’, and I went back inside and she went back into the room and, into the bedroom and was there for so many minutes and left, and he got up and left with her. (my emphasis)

    [397] T 230.34-38.

31. A proposition was put to ZQ that the accused had caught the bus into the city with her from Newton after the alleged offending. She said initially, ‘I don’t recall’ and then said, ‘No, I don’t think so.’[398]

    [398] T 184.20-25.

32. If ZQ and the accused did, in fact, catch the bus into the city together thereafter, this is seemingly inconsistent with him having raped ZQ shortly beforehand. However, there was no evidence that they did, in fact, catch the bus into the city together thereafter. Although Mr Colella described the accused leaving with ZQ, he did not see where the accused (or ZQ) went after they left the house. They could have gone entirely separate ways.

33. However, there was an important difference in ZQ’s evidence, compared to that of Mr Colella, as to what occurred at the Newton house on 7 November.

34. In the first ZQ interview, ZQ said that the accused’s homestay family were home at the time of the alleged offending. She did not say anything about any interactions with them at that time.[399]

    [399] MFI P2 at line 401.

35. In the second ZQ interview, ZQ said the homestay host was in the house and ‘heard it’ and asked, ‘what’s going on’.[400] When asked where the homestay host was at this time, ZQ said, at first, ‘out his door’ and then said, ‘outside the room’. She said the door was closed and he did not see what was happening.[401]

    [400] MFI P4 at lines 343-352.

    [401] MFI P4 at lines 1019-1035.

36. In cross-examination, ZQ was asked if the homestay host had come to the door when the accused was having sex with her and she was screaming. She said, ‘I think so’.[402] She said he had enquired whether she was okay but she had not said anything.[403]

    [402] T 182.24.

    [403] T 182.25-29.

37. Given what she said in cross-examination, the only possible interpretation of what ZQ said in the second ZQ interview on this topic is that she recalled Mr Colella being on the other side of the accused’s bedroom door while the accused and her were having sex on 7 November. As the door remained closed, he did not see what was happening at that time. He enquired what was happening, but she had not said anything.

38. If, in fact, this evidence was the product of some misunderstanding due to language issues, either at the time of the second ZQ interview or during cross-examination, this was not clarified by way of ZQ’s further evidence-in-chief or in re-examination.

39. Mr Colella did not give evidence that he had gone to the accused’s bedroom door in response to hearing ZQ screaming on the day of the alleged offending. He said he had never heard any noises or disturbances coming from the accused’s bedroom. His only evidence of any interaction with the accused and ZQ on 7 November related to his observations of them in the courtyard near the pool (and hearing them in the courtyard).

40. This is an important difference in the evidence as it goes to the circumstances incidental to the offending. It is unlikely that either ZQ or Mr Colella could be mistaken as to this. While there were aspects of Mr Colella’s evidence which caused me some concern, there is no basis for me to reject his evidence on this important issue.

    Ms Zhou’s Evidence –As to the Complaint and Generally

41. As previously stated, the timing of the complaint and the fact it was made to Ms Zhou demonstrates some degree of consistency in ZQ’s conduct.

42. However, the content of the complaint as described by Ms Zhou differs from (and omits) important details compared with ZQ’s account of the alleged offending.

43. Ms Zhou did recall ZQ telling her she had recently engaged in forced sex with the accused which is consistent with ZQ’s account.

44. However, Ms Zhou gave no evidence that ZQ told her that the accused had threatened her prior to her engaging in that sexual intercourse, and/or how he had threatened her. Importantly, Ms Zhou made no mention of the video(s).

45. Much was made of the fact that ZQ only told Ms Zhou about engaging in non-consensual sex with the accused after this was raised by Ms Zhou. However, as stated, ZQ was very reticent to discuss anything relating to sex or sexual activity in the prescribed interviews. It was necessary for the interviewers to consistently probe ZQ for more detail to understand precisely what she was claiming had happened. It was only after she was pressed for detail, that she provided it. I consider this aspect of Ms Zhou’s conversation with ZQ falls into the same category – it was only when she was specifically asked about their sexual relationship, that ZQ discussed it.

46. However, a significant feature of what Ms Zhou recalled ZQ telling her was her concern that the accused was stalking her at her homestay house and workplace and that she did not feel safe.

47. These matters did not specifically form part of ZQ’s allegations, albeit she did tell Officer Perry that the accused had threatened to go to her house. Of course, ZQ was being specifically questioned by Officer Perry (and Officer Close, and in court) about her specific allegation of rape and there was limited questioning about other aspects of the accused’s behaviour that may have been of concern to her.

48. However, Ms Zhou’s recollection was that ZQ’s particular concern was that the accused was stalking her outside the restaurant where she worked and at her home. Notwithstanding ZQ’s reluctance to discuss sexual matters, she did tell Ms Zhou about the fact the relationship was a sexual one. If the accused had raped her three days earlier and had raped her several times over the previous weeks as ZQ claims, it is unusual that those events would not have been (or become) the focus of the discussion.

49. Perhaps ZQ was endeavouring to find a solution to her problem from Ms Zhou without having to go into too many details about her sexual activity with the accused. Perhaps she was simply too ashamed or embarrassed to talk about this openly with Ms Zhou (or Officer Glasson – noting she did not tell him about being raped on the Monday). However, ZQ did not give any evidence about withholding details about the alleged offending from either Ms Zhou or Officer Glasson because of embarrassment or similar.

50. The fact that Ms Zhou’s ‘takeaway’ from the conversation was that ZQ’s primary concern was the accused stalking and harassing her, rather than the fact she had been aggressively raped by him three days earlier, does cause me to have some doubts about precisely what did occur on Monday 7 November at the Newton house.

51. Similarly, the fact ZQ did not tell Officer Glasson about the rape but did tell him her arm was bruised in an ‘argument’ on the Monday, contributes to those doubts.

52. Another important difference in Ms Zhou’s recollection of the conversation, and ZQ’s evidence, is Ms Zhou’s recollection that ZQ told her that the accused was waiting for her outside of her work in Chinatown, one or two nights earlier. Ms Zhou appeared to correlate the bruises she saw on ZQ’s arms as having been caused at that time, when the accused grabbed her.

53. I have considered the possibility that Ms Zhou’s recollection of what ZQ told her may now be confused and that ZQ told her about two entirely different incidents – her fear of the accused stalking her outside the restaurant in Chinatown and an entirely unrelated and separate incident that had occurred one or two nights before, when he grabbed her on the arm. It may be that the latter incident was ZQ describing the accused grabbing her arm when they were arguing by the pool at the Newton house on Monday 7 November.

54. However, this was not Ms Zhou’s evidence. She had a much more detailed recollection of the conversation, than ZQ. She was confident in that recollection and what was ZQ’s primary concern about the accused’s behaviour.

55. I have no reason to doubt the reliability and credibility of that evidence.

56. Further, ZQ was adamant she had not seen the accused between the date of the offending and reporting the offending to police. If the accused was waiting for ZQ outside the restaurant one or two nights before she spoke to Ms Zhou, then that must have been on either the Tuesday or Wednesday night, that is, after the offending. This immediately raises a concern as to both the reliability and credibility of ZQ’s evidence.

57. I have previously outlined in detail why I have rejected the proposition that ZQ stabbed the accused with a knife on Wednesday 9 November 2022. However, it remains possible that the female voice heard in the background of the recording made of the accused walking near Chinatown at dusk on Wednesday 9 November 2022, is ZQ’s voice. The fact Ms Zhou recalled ZQ telling her she had seen the accused one or two nights earlier in Chinatown lends some support to that conclusion (albeit for the reasons I have previously expressed, Ms Zhou’s recollection of what ZQ told her and how she felt at the time the accused was waiting for outside her workplace, does not accord with what can be seen, heard and inferred from that recording).

58. However, if that is ZQ’s voice on that recording, then, in my view, what can be seen, heard and inferred from that recording, is inconsistent with ZQ having been raped by the accused two days earlier.

    Summary

59. While I am conscious of ZQ’s young age and potential language and cultural issues, I am not satisfied those issues fully explain why, in terms of both her demeanour and willingness to answer questions, she presented so poorly, particularly during cross-examination.

60. On its face, this was a strong prosecution case. However, the combination of ZQ’s poor presentation as a witness and some important inconsistencies (and omissions) in her account, does impact negatively on my overall assessment of her reliability and credibility as a witness.

    Conclusion

61. There are aspects of the evidence which provide strong support for ZQ’s account of the alleged offending, specifically the fact the accused was still in possession of the video on 11 November and the damning messages the accused sent to her.

62. I am satisfied beyond reasonable doubt those messages relate to a threat by the accused to publish/post the video(s) and not to publish/post something else, whether that be a photograph of ZQ with another boy, or of ZQ self-harming, or something entirely different.

63. I reject the two alleged motives to lie. I am satisfied the accused lied to Mr Colella about ZQ stabbing him. I consider it likely BQ’s evidence was untrue and tailored to provide support to his friend, the accused.

64. While there is every possibility the accused’s injuries were in fact sustained during his rape of ZQ on Monday 7 November, I cannot be satisfied of that beyond reasonable doubt.

65. I have no doubt the accused was bullying, harassing and threatening ZQ. He treated her appallingly.

1. I am satisfied that a reasonable inference that can be drawn from the messages, in combination with the video and all of the evidence, is that during September and October 2022, the accused was threatening to post, on social media, or otherwise publish, a recording or recordings of ZQ engaging in sexual activity with him, unless ZQ did what he wanted her to do and that this included her attending at his house and having sex with him.

2. I am satisfied threats of that type were made to ZQ up to and including 20 October.

3. However, I am also satisfied that ZQ continued to see the accused for purposes other than sexual activity in October, notwithstanding these threats. I am satisfied that despite how badly the accused was treating her, ZQ was still jealous about the accused’s interest in other girls as at 15 October (when she sent the ‘chatting with Bonnie’ message) and even as late as 6 November when she sent the accused the link to the profile of an attractive girl.

4. In the absence of there being evidence of any threatening message proximate to the day of the alleged offending, I cannot exclude as a reasonable possibility that ZQ did have sexual intercourse with the accused on 7 November 2022 but that she did so because she still held romantic feelings for him, notwithstanding the fact that he treated her badly throughout the relationship and not because of the threats.

5. ZQ cannot be mistaken about what occurred on that day. It must follow, that I cannot exclude as a reasonable possibility, that ZQ is not telling the truth about what occurred at the Newton house on 7 November 2022.

6. The accused and ZQ certainly argued by the pool on that day. The fact ZQ told Officer Glasson about an argument having caused the bruise on her arm, and did not tell him about the rape, together with the other important inconsistencies (and anomalies) in ZQ’s account identified above, do cause me to have a reasonable doubt as to the accused’s guilt with respect to either count.

7. As such, I cannot exclude, as a reasonable possibility, that no sexual intercourse occurred at the Newton house between ZQ and the accused on the relevant date, and that rather than attend there to have sex with the accused, because of the threats, ZQ attended for another reason, such as discussing the state of their relationship and/or imploring him to stop harassing and threatening her.

8. As such, while I consider it likely the accused did engage in sexual intercourse with ZQ on 7 November 2022, when he was 18 and he knew she was 16, and, in all likelihood, raped her on that day, I cannot be satisfied of that beyond reasonable doubt.

9. I find the accused not guilty of both counts.