The King v ADP
[2023] QDC 183
•5 October 2023
DISTRICT COURT OF QUEENSLAND
CITATION:
The King v ADP [2023] QDC 183
PARTIES:
R
v
ADP
FILE NO/S:
Indictment No. 1918/22
DIVISION:
District Court of Queensland
PROCEEDING:
Trial (Judge Only)
ORIGINATING COURT:
Brisbane District Court
DELIVERED ON:
5 October 2023
DELIVERED AT:
Brisbane
HEARING DATE:
3-4 October 2023
JUDGE:
Judge McGinness DCJ
VERDICT:
NOT GUILTY ON BOTH COUNTS
CATCHWORDS:
CRIMINAL LAW – Trial had before Judge without jury – verdict – where defendant is charged with two counts of rape – consent – mistake of fact – whether the defendant is guilty or not guilty
LEGISLATION:
Criminal Code Act ss 349, 24
COUNSEL:
S Sherrie for the Crown
K Juhasz for the Defendant
SOLICITORS:
Office of Director of Public Prosecutions for the Crown
Guest Lawyers for the Defendant
Introduction
[1] The defendant is charged with domestic violence offences against his former partner Ms L who I shall refer to as the complainant. On 23 February 2023 another District Court Judge ordered the defendant’s trial for these charges proceed as a judge alone trial. The trial proceeded on 3 and 4 October 2023.
[2] At the commencement of the trial the defendant pleaded guilty to the following offences, committed during the course of his relationship with the complainant on various dates between 8 October 2019 and 1 March 2020:
· two counts of assault occasioning bodily harm
· two counts of deprivation of liberty
· one count of choking
· two counts of common assault.
[3] He pleaded not guilty to two counts of rape allegedly committed on a date unknown between 28 December 2019 and 6 January 2020 at Wavell Heights.
[4] The complainant and the complainant’s mother gave evidence. The prosecution tendered and played a pretext telephone conversation which occurred between the complainant and the defendant on 21 April 2020. The prosecution tendered a document containing formal admissions pursuant to s644 Criminal Code. That was the extent of the Crown case.
[5] The defendant did not give or call evidence.
[6] At the close of the evidence, both parties addressed me. I propose to deliver my verdict now and to give brief reasons rather than reserving the matter.
Particulars
[7] The charges are particularised as occurring on one afternoon in January 2020. Count 4 is an act of digital rape. Count 5 is an act of penile rape.
Counts 4: Digital Rape
[8] In respect of count 4 the prosecution case is that the defendant inserted his fingers into the complainant’s vagina. The prosecution must prove beyond reasonable doubt that the defendant:
1. penetrated the complainant’s vagina with his fingers. Penetration to any extent is sufficient to prove this element.
2. without the consent of the complainant.
[9] In respect of count 5 the prosecution case is that the defendant inserted his penis into the complainant’s vagina. The prosecution must prove beyond reasonable doubt that the defendant:
1. penetrated the complainant’s vagina with his penis. Penetration to any extent is sufficient to prove this element.
2. without the consent of the complainant.
Issues for determination
[10] It is not in issue that the digital and penile penetration occurred. The issues in dispute are whether the prosecution can prove the complainant did not consent, and if so, whether the prosecution can exclude beyond reasonable doubt that the defendant did not honestly and reasonably but mistakenly believe she consented.
The evidence
Formal admissions
1. The defendant was in a relationship with the complainant for about 8 months, from approximately July 2019 until March 2020.
2. On 9 October 2019, the complainant moved into the defendant’s mother’s house at Main Avenue, Wavell Heights. She lived there until she moved out on 28 March 2020.
3. During their relationship, the defendant committed physical abuse against the complainant. This included pushing the complainant around and into walls.
4. On one occasion, the defendant pushed the complainant into a wall causing bruising to her face (Count 1: Assault occasioning bodily harm). On another occasion, the defendant bit the complainant on the arm, causing bruising (Count 2: Assault occasioning bodily harm). The complainant photographed her injuries from both occasions.
5. The defendant would sometimes prevent the complainant from leaving the bedroom at his house. On one specific occasion, the defendant barricaded the bedroom door shut and sat against it, preventing her from leaving, after she had packed her bags (Count 3: Deprivation of liberty).
6. On a date unknown in January 2020, the complainant and defendant were having an argument in his bedroom. The complainant tried to leave, and she was thrown onto the bed by the defendant. The complainant kicked the defendant off her and ran towards the bedroom door. The defendant followed, grabbed the complainant, threw her to the floor and choked her until she lost consciousness (Count 6: Choking in a domestic setting).
7. Later in January or February 2020, the defendant and complainant were in a car in Chermside. The complainant said she wanted to end the relationship. The defendant became angry and yelled at the complainant. The complainant exited the car and walked away. The defendant also got out of the car and chased after the complainant. He grabbed her from behind and pulled her back towards the car (Count 7: Common assault).
8. The complainant yelled at the defendant to let her go, but he dragged her back into the car and then drove off. The complainant screamed at the defendant to stop the car, but he continued to drive towards Mount Coot-tha (Count 8: Deprivation of liberty).
9. The complainant attempted to contact her friend, AC, but the defendant took her phone off her. In an effort to get her phone back, the complainant started pushing buttons on the stereo to distract the defendant. The defendant smashed his hand against the complainant’s hand on the stereo, causing the stereo to crack (Count 9: Common assault).
10. On 22 March 2020, the defendant sent a text message to the complainant which said:
“Physical abuse isn’t right and I’m trying really hard to change for you, sometimes I just lose control and scare myself, and that’s why I hurt myself after I hurt you.”
11. Throughout the relationship the defendant would threaten to self-harm or that he would commit suicide. On 30 March 2020, after the complainant moved out of the defendant’s house, the defendant sent the complainant messages indicating that he was going to self-harm or commit suicide. On this occasion, the defendant also sent the complainant photos of him bleeding from cutting himself on his arms.
12. On 21 April 2020, the complainant made a pretext phone call to the defendant from the Hendra Police Station and spoke with the defendant over the phone.
13. In September 2020, the complainant finalised a formal police statement which particularised the offending which is the subject of counts 1 to 9 on the indictment.
The complainant’s evidence
[11] The complainant gave evidence on 3 October 2023. She started dating the defendant in July 2019. It ended in early April 2020. In October 2019, the complainant moved into the home the defendant shared with his mother. The defendant became violent towards her when she moved in with him. The complainant described the relationship as intimate, toxic and violent. The defendant would on occasion hit, kick, push, shove, strangle and bite her. She would try to fight back. She would scream and cry.
[12] The two rapes occurred at the defendant’s home. One afternoon, the complainant was watching Netflix and the defendant was playing video games. The defendant asked if she was in the mood for anything sexual. She said she was not. After a “little bit of time” he came over to the bed and started stroking her back and arms. She again told him she was not in the mood. The complainant was wearing loose shorts and a t-shirt but no underwear. While she was lying down on her stomach, the defendant inserted his fingers into her vagina. After a significant pause, when asked by the prosecutor how the defendant did this while she was wearing pants, the complainant agreed to a leading question that he put his fingers through the gap in her pants. She told the defendant she was not interested and to stop. The defendant jokingly “brushed off” her words. She turned on her side to push him away and he pushed her flat on her back. She scrunched her eyes shut and he inserted his penis into her vagina.
[13] The complainant could not remember if she was still wearing her shorts at the time. She thought he pulled his pants down. The defendant thrust his penis in and out for some time. She said nothing while he was doing that. He stopped suddenly, got up and started apologising profusely, repeating “I’m sorry” over and over. The complainant could not recall what she did next. Later that evening they went for a drive. The defendant started crying and said, “today I raped you”.
[14] The complainant did not tell anyone what happened until after she and the defendant had ceased the relationship. She recalled telling her mother the day before she went to the police station, or at the police station, that the defendant had raped her. She did not give her mother any other details.
[15] In cross examination the complainant agreed that she and the defendant both had several personal issues before they commenced the relationship. She denied suffering anxiety or depression but admitted to self-harming since she was aged 11. The complainant acknowledged speaking to staff at The Prince Charles Hospital where she presented after her relationship ended, and admitting herself to Belmont Hospital where she stayed in the Psychiatric Ward for about six days. She accepted she spoke about her issues with Dr S, but denied telling him she had a longstanding history of unstable mood, anxiety, and substance abuse. The complainant denied using drugs before she met the defendant. She agreed that during the relationship she used MDMA, non-prescribed drugs and Cannabis. The complainant agreed that at the time she went into Belmont Hospital, she was using Cannabis in the hospital with another patient. She agreed that she had attended the defendant’s counselling sessions in relation to his diagnosis of autism.
[16] The complainant finally left the defendant’s home in late March/early April 2020. She said she attempted to leave on several occasions but decided not to due to the defendant self-harming. The complainant agreed with the suggestion that she left because the defendant’s mother had asked her to, but she denied she was asked to leave on numerous occasions. The complainant then changed her evidence and said she was never asked to leave. The complainant then agreed that the defendant’s mother had sent her a text in March which stated: “if you want to help him, you need to keep your distance and leave”.
[17] The complainant agreed to the following suggestions:
· Before and after the alleged rapes in January 2020 they had a consensual sexual relationship including consensual sex.
· Generally, they would not use a condom, but sometimes they did, and she was on birth control.
· Sometimes the defendant would penetrate her vagina with his fingers prior to sexual intercourse (approximately 50 percent of the time, maybe even less).
· Sometimes sexual intimacy would commence with kissing and touching and progress from there, however, usually they would both indicate they were in the mood first.
[18] The complainant accepted she had given a version of what occurred to the prosecutor during a conference with him the week before the trial. That version was to the effect that she was lying on the bed with the defendant who asked for sex. She said she was not interested. The defendant waited for some time. He then came over to the bed and began stroking her and touching her and putting his fingers in her vagina while her pants was still on. The defendant was kissing her while leaning on her and she told him to stop in a joking manner. (The complainant clarified in evidence that she was not in fact joking, but that may be how the defendant perceived it.) The defendant began to stroke himself and kissed the complainant. He inserted his penis and thrust multiple times. The complainant had her eyes scrunched. The defendant pulled his penis out and immediately said sorry.
[19] The complainant disagreed with the following propositions:
· They usually did not use a lubricant.
· That she did not say stop or push him away before the digital and penile penetration occurred.
· That the defendant never said to her later that day that he raped her.
· That she did not scrunch her eyes until after the defendant inserted his penis into her vagina. She instead maintained that she scrunched her eyes prior to the defendant inserting his penis.
[20] The complainant denied kissing the defendant back prior to digital and penile penetration occurring. She denied that the defendant stopped at the point that the complainant indicated that she did not consent (after penetration). She denied being drug affected during the conversation later that evening.
[21] The complainant was asked questions about the pretext call conducted on 6 April 2020. She volunteered under cross-examination that:
· She was determined during the phone call to get the defendant to admit to the things that he did against her.
· She utilized a method of requiring him to admit to each incident of violence he committed by asking the defendant for specific apologies for each act.
· Multiple times during the call she corrected him on things that he said had occurred when they differed from her recollection of incidents of domestic violence. (For examples see 1-pages 31-32 Trial Transcript).
[22] The complainant eventually agreed that in the pretext call, she had indicated to the defendant that he did stop the penile penetration once it became apparent to him that she did not want to have sex. However, the complainant then denied that the defendant only became aware during the act of penile penetration when she openly gave him an indication that she did not want to continue. The complainant said she saw no point in arguing with the defendant during the pretext call about what point he realised that she was not consenting, or what he thought had happened. The complainant agreed that during the pretext call she did not give the defendant details of her crying, or saying stop before he penetrated her, and she did not correct him when he said he did not realise she was not consenting at first. The complainant’s explanation for not challenging the defendant’s version or providing those details was she did not need to give the defendant details since he already knew what he had done.
Preliminary complaint evidence
[23] The complainant told her mother about the rape either the day before or the day they went to the police station. She told her mother words to the effect “he raped me.” She did not give her mother any details on that occasion.
[24] The complainant’s mother gave evidence that she recalled the complainant saying that the defendant wanted to have sex and the complainant told him that she did not want to. The complainant told her mother that the defendant decided to have sex with the complainant anyway. The complainant said that during intercourse she was crying and froze up and did not say anything. The complainant’s mother recalled the complainant saying that the defendant eventually just stopped.
[25] Under cross examination the complainant’s mother denied being told by the complainant that the defendant stopped once he realised the complainant did not want to have sex. The complainant’s mother agreed that she was only told about the defendant penetrating the complainant’s vagina and not other sexual acts.
[26] I accept the mother’s evidence that the complainant told her the defendant raped her.
The pretext call on 6 April 2020
[27] The pretext call lasted approximately one hour and fifteen minutes. It comprised the complainant asking the defendant to make specific admissions to the acts of violence he subjected her to. He made admissions to each of the counts charged on the indictment except to penetrating her vagina without her consent. The defendant’s answers in the following passage provide evidence that he honestly believed the complainant was consenting to sexual intercourse at the relevant time.
| COMPLAINANT | You raped me and you lied about it. |
| DEFENDANT | I didn’t rape you baby. |
| COMPLAINANT | Yes, you did Christian. |
| DEFENDANT | How? |
| COMPLAINANT | You might’ve realised too late, but you still did it. |
| DEFENDANT | Baby I stopped. |
| COMPLAINANT | Once you realised but you still did it. |
| DEFENDANT | Baby I asked can I, like can I at least try and see if you would get in the mood and you said fine. |
| COMPLAINANT | No, no. No, I didn’t. you didn’t. |
| DEFENDANT | Baby I would never rape you [UI] I would never rape you that’s not me. |
| COMPLAINANT | But if it’s an accident or not it still happened. You say on purpose. Just because you didn’t realise, and you didn’t mean to doesn’t mean you didn’t do it. |
[28] The effect of the above exchange is that the complainant acknowledged that the defendant stopped having sex once he realised she was not consenting.
Directions
[29] I must reach my verdict only on the evidence. In addition to facts proved by evidence, I may draw inferences but only reasonable inferences and if there is more than one inference reasonably open, I must draw the inference that most favours the defendant. The burden rests on the prosecution to prove the guilt of the defendant beyond reasonable doubt. There is no burden on the defendant who is presumed to be innocent. I dismiss all feelings of sympathy or prejudice regardless of who is involved and regardless of the nature of the allegations or charges. I am required to assess the credibility and reliability of witnesses. I may accept or reject such parts of the evidence as I see fit.
[30] I also have directed myself along the lines contained in the Supreme and District Court Trial Bench book on the following issues:
· Preliminary Complaint evidence.
· Defendant not giving evidence when no adverse inference.
· Separate consideration of charges.
· Use of discreditable violent conduct during the relationship.
· Mistake of fact.
· Editing of recordings.
· Transcripts of evidence.
· Domestic violence (section 103Z(2) Evidence Act 1977).
· The complainant’s evidence given with a screen as a special witness.
· The alleged admission by the defendant to the complainant that he raped her.
· Liberato direction in the context of the defendant’s statements and answers in the pretext call.
Was the complainant’s evidence credible and reliable?
Credibility and reliability
[31] Prior to determining whether the prosecution has proved the elements of the offences, it is appropriate to first consider issues of credibility and reliability regarding the complainant’s evidence.
[32] The prosecution submitted the court should find that the complainant was an honest and reliable witness because she consistently said in evidence that she told the defendant she did not want him to touch her and that she did not consent to any sexual acts. She made a complaint to her mother and police only a few days after the relationship ceased, which bolstered her credibility and reliability. The complainant made serious allegations of defined acts of domestic violence in the pretext call with the defendant (within months of the alleged offences) of assault, choking and deprivation of liberty which the defendant accepted as having occurred, and to which he pleaded guilty at the beginning of the trial. The complainant alleged that the defendant had sex with her without her consent in the pretext call. The complainant made concessions in her evidence on 3 October 2023 which the prosecution submits demonstrates her honesty.
[33] The defendant submitted the complainant’s evidence is critical in circumstances where there is no objective evidence that the defendant raped the complainant. The defendant submits the court would find the complainant’s evidence on 3 October 2023 to be unreliable when compared with inconsistent statements in the pretext call and the version she gave to the prosecutor in the week before trial.
[34] A useful guide to resolving issues of credibility and reliability is found in the following observations by Lord Pearce in Onassis and Calogeropoulos v Vergottis[1] relevant to the present case:
“‘Credibility’ involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”
[1][1968] 2 Lloyds Rep 403.
[35] My overall impression of the complainant is that she was an honest witness. I have little doubt that when the complainant gave evidence in court, she believed to be true and accurate the things about which she testified, however some features of her evidence reflect adversely on her reliability.
[36] For example:
·The complainant did not challenge the defendant’s recollection during the pretext call that he stopped when he realised that she was not consenting. The complainant replied, “You might have realised too late, but you still did it”. When the defendant said again that he stopped, the complainant answered, “Once you realised, but you still did it”. These statements by the complainant indicate that she accepted the defendant’s recollection that he stopped when he realised that she was not consenting. I do not accept, as the complainant stated during her evidence, that she gave these responses because she saw no point in arguing with the defendant. The complainant was clearly the person in control and driving the direction of the conversation during the entirety of the pretext call. The complainant continually corrected the defendant with her version of violent acts that he carried out. She disagreed with him on his recollections when they were inconsistent with hers, or were vague, and she persisted until he agreed with what she said or until he went into greater detail. The complainant challenged the defendant in the pretext call on many of the statements he made about the detail of acts of violence he perpetrated against her during the relationship.
·The complainant did not challenge the defendant during the pretext call with details of her recollection which indicated her lack of consent despite repeatedly raising these details in her evidence. For example, she did not challenge defendant’s recollection by suggesting to him that she had told him to stop a number of times, that she said no, that she pushed him away when he was trying to have sexual intercourse, that she was crying before he stopped having sex with her or that he had admitted to her later that day that he had raped her.
· The complainant’s version to the prosecutor in conference was inconsistent with her evidence in court in material respects as to how the incident unfolded. For example, she told the prosecutor that before the defendant inserted his penis into her vagina, when he was kissing and stroking her, she told him to stop in a joking manner, whereas in her evidence she said she was not joking. (The complainant conceded the defendant may have perceived that she was joking). Also, the complainant’s version to the prosecutor was that when she scrunched her eyes, the defendant immediately pulled his penis out and immediately said sorry numerous times. The effect of her evidence in court, however, was that he penetrated her after she was crying and scrunching her eyes shut.
· The complainant’s statement to the defendant in the pretext call that he had lied about raping her is materially inconsistent with her evidence in court that he admitted to raping her on the day of the alleged rapes.
[37] The complainant’s version in the pretext call occurred only a few months after the alleged rapes. The evidence she gave in court occurred over three and a half years after the alleged rapes, and about a week after the version she gave to the prosecutor in pre-trial conference. The complainant conceded in evidence that her memory would have been better closer to the events.
[38] In my view, the complainant was probably telling the truth as she saw it when she gave evidence in court. However, I am not satisfied that her evidence was reliable where it differed from her statements in the pretext call and her version to the prosecutor in conference. I have carried out a careful assessment of her evidence when considering whether the prosecution has proved the issues in dispute and the guilt of the defendant. Specifically, I am not satisfied that the complainant reliably recalled when and how she communicated to the defendant that she was not consenting to digital and penile penetration. A reasonable inference is open on all the evidence that, as soon as the defendant became aware she was not consenting to digital or penile penetration, he withdrew his penis from her vagina and apologised.
Directions relevant to the issues in dispute
Penetration
[39] I accept the complainant’s evidence that digital and penile penetration occurred. The defence case does not dispute this element is proven.
[40] The second element the prosecution must prove is that the complainant did not consent to the defendant penetrating her vagina in this manner. The prosecution case is that the complainant did not consent to the defendant penetrating her vagina with his fingers or with his penis.
[41] “Consent” is defined under our law. Consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent. A person’s consent to an act is not freely and voluntarily given if it is obtained by force, intimidation, by someone in a position of authority or by fraud.
[42] Consent must be given. For consent to be given it must be communicated somehow. If I am satisfied that consent has not been given freely and voluntarily, that is to say, if it is not communicated in some way, then I will be satisfied that the Crown has proved this element of the offence.
[43] Consent can be given in a variety of ways. Sometimes inaction, or a failure to voice an objection, implies giving consent to what is being done and sometimes it does not imply consent to what is being done. For example, if a man kisses a woman on the lips, and she does not stop him from doing so and she does not object by saying anything, her failure to do or say anything, together with other circumstances, might imply that she has given her consent to being kissed in that way. On the other hand, under different circumstances, a woman’s lack of objection to exactly the same action might amount to lack of consent.
[44] The circumstances leading up to the act of penetration will be relevant in my consideration of whether I can be satisfied the complainant did not consent. All matters surrounding the events that night are relevant to whether I can be satisfied the complainant consented to sexual intercourse at the point of penetration.
[45] The defendant’s case is that I would have a reasonable doubt that the complainant consented.
[46] I am satisfied the complainant’s evidence that she did not consent is truthful and reliable. She consistently maintained that the defendant raped her from the time in April 2020 when she complained to her mother, in the pretext call conducted in April 2020, in her version to the prosecutor and in her evidence in court.
Mistake of Fact
[47] The defence of mistake of fact available under s24 Criminal Code is raised on the defendant’s responses to the complainant’s rape allegations during the pretext call. A person who does an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act to any greater extent than if the real state of things had been such as the person believed to exist.
[48] If the complainant did not consent, but the defendant honestly and reasonably believed that the complainant consented to the defendant inserting his fingers and penis into her vagina, the defendant will not be criminally responsible to any greater extent than if the complainant had consented. That would mean that the defendant should be found not guilty of rape.
[49] For the defence to apply, I bear in mind that a mere mistake is not enough, the mistaken belief must have been both honest and reasonable. An honest belief is one which is genuinely held by the defendant. To be reasonable, the belief must be one held by the defendant, in his particular circumstances, on reasonable grounds.
[50] Finally, there is no burden on the defendant to prove that he made a mistake of fact. The prosecution must satisfy me beyond reasonable doubt that he did not do so. If the prosecution has failed to satisfy me that the defendant did not act under an honest and reasonable mistake of fact, I must find the defendant not guilty of rape. If the Crown proves to my satisfaction beyond reasonable doubt that:
(1) The defendant did not honestly hold the relevant mistaken belief about the complainant consenting to him inserting his fingers and penis in her vagina.
or
(2) That belief was not reasonable in the defendant’s circumstances.
Then I would find that the defence of mistake of fact does not apply.
[51] All matters and circumstances surrounding the events that night are relevant. This includes an assessment of the timing of when the complainant told the defendant she did not want to have sex, the complainant’s evidence, the defendant’s answers in the pretext call, the evidence of the prior violence perpetrated by the defendant against the complainant and all the other evidence.
[52] Honest: I am satisfied the defendant’s answers to the complainant during the pretext call were his honest recollection of the alleged rape incident, and his belief he did not rape her. The defendant’s statements that he did not rape her and that he stopped were made during what he believed to be a confidential conversation with the complainant, and during which he made numerous admissions of serious violent offending against her. My impression was that the defendant was anxious to admit everything awful he had done to her in an effort to convince her that he was remorseful and regretful, and he had changed. Yet, unlike the other offending, he did not admit that he raped her. Rather, he effectively said he believed he had not raped her. His statements provide an answer to the Crown case that he did not hold an honest belief. In addition, the complainant’s responses during the same discussion of rape are consistent with her accepting he did not believe he was having non-consensual sex, even though she was not in fact consenting.
[53] I am not satisfied of the complainant’s evidence in court that she verbally made clear her lack of consent to the defendant penetrating her vagina based on inconsistencies between the complainant’s various recollection of the incident and her responses in the pretext call. I am also not satisfied the defendant said to the complainant later on the day of the relevant incident “I raped you”. In conclusion, I am not satisfied beyond reasonable doubt that the defendant did not honestly believe that the complainant was consenting to digital and penile penetration.
[54] Reasonable belief: The prosecution submit I would be satisfied that the defendant’s belief, even if honestly held, was not reasonable having regard to the history of domestic violence he had perpetrated against the complainant prior to the alleged rape, and his immaturity and lack of insight, both which were evident in the pretext call. The prosecution appears to be submitting that the defendant’s level of immaturity and gross lack of insight fell below the normal standard expected of an 18-year-old and any belief he held was therefore not reasonable. I do not find this submission persuasive.
[55] The test is whether the belief held by the defendant in his particular circumstances was reasonable. The focus is on the defendant’s belief, rather than that of a theoretical reasonable person, the information available to the defendant and the defendant’s circumstances are of relevance in considering whether a belief was reasonably held: R v Mrzljak [2005] 1 Qd R 308 at 321, 329-330; commentary in Supreme and District Court Benchbook 80.
[56] The acts of penetration occurred in the context of an intimate, ongoing, otherwise consensual sexual relationship between two extremely immature and troubled 18-year-olds, who lived together and shared a bedroom at the defendant’s mother’s house. On the state of the evidence, having regard to my findings that the complainant’s evidence of specifically telling the defendant not to touch her, “no” or “to stop” may be an unreliable recollection of what occurred, I have a reasonable doubt that the complainant did anything overt to communicate to the defendant that she was not consenting when he put his fingers into her vagina, or did anything more overt than jokingly tell the defendant to stop when he was leaning over her kissing and stroking her before he penetrated her vagina with his penis. The prosecution has failed to exclude beyond reasonable doubt the defence of honest and reasonable mistake.
Verdict
[57] I find the defendant not guilty on Count 4 and not guilty on Count 5.
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