The Queen v Soran Shero - [2013] ACTSC 31

THE QUEEN v SORAN SHERO
[2013] ACTSC 31 (1 March 2013)

CRIMINAL LAW – General Matters – two charges of sexual intercourse without consent – judge-alone trial – whether sexual intercourse took place – whether there was consent – whether accused knew of absence of consent or was reckless about consent – elements of offences not established beyond reasonable doubt – accused not guilty of either offence.

Evidence Act 1995 (Cth), s 165

Crimes Act 1900 (ACT), ss 50(1), 54(1) and 54(3)
Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 43 and 46
Supreme Court Act 1933 (ACT), s 68C

Fleming v The Queen (1998) 197 CLR 250
R v Rao [2008] ACTSC 17

No. SCC 382A of 2009

Judge: Penfold J
Supreme Court of the ACT

Date: 1 March 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCC 382A of 2009
AUSTRALIAN CAPITAL TERRITORY           )

R

v

SORAN SHERO

ORDER

Judge:  Penfold J
Date:  1 March 2013
Place:  Canberra

THE COURT ORDERS THAT:

On Count 1, that on 7 June 2009 Soran Shero engaged in sexual intercourse with the complainant without the complainant’s consent and being reckless as to whether she had consented – a verdict of not guilty be entered.

On Count 2, that on 7 June 2009 Soran Shero engaged in sexual intercourse with the complainant without the complainant’s consent and being reckless as to whether she had consented – a verdict of not guilty be entered.

Introduction

Soran Shero has been charged with two counts of engaging in sexual intercourse with the complainant without her consent and being reckless as to whether she had consented, allegedly committed on 7 June 2009.

The charges arose under s 54(1) of the Crimes Act 1900 (ACT). Under s 50(1) of the Crimes Act, sexual intercourse includes digital penetration of a person’s vagina. Under s 54(3) of that Act, recklessness as to consent can be established by proving knowledge of an absence of consent.

The accused pleaded not guilty to both of the charges.

Judge-alone trials

Election

The accused elected to be tried by a judge alone.

Section 68C of the Supreme Court Act 1933 (ACT) specifies the procedures to be followed for a trial by judge alone. In summary:

(a)the judge can make any findings of guilt that could have been made by a jury, and those findings have the same effect as jury verdicts;
(b)the judge must provide a judgment setting out the principles of law he or she applied and the findings of fact he or she relied on (this requirement has been interpreted as requiring the judge to set out also the reasoning process linking the law and the facts, and a justification for the verdict, Fleming v The Queen (1998) 197 CLR 250); and
(c)the judge must take into account any warnings or directions that would, under a Territory law (which for this purpose includes the Evidence Act 1995 (Cth), applicable at the time of this trial), have had to be given, or any comments that would under such a law have had to be made, to a jury in the case.

Directions

In a judge-alone trial the judge must give herself certain directions equivalent to those that would be given to a jury. Those directions relate to the presumption of innocence, the burden of proof generally and the way evidence should be dealt with, and they are set out in more detail in Appendix A to this judgment. Other specific directions, warnings and comments are also required by the circumstances of this case; they are also set out in Appendix A.

The evidence

Names and identities

The accused is charged under a family name that he adopted some years ago in place of his original family name. Among participants in the events the subject of this trial, he was known as “Marco”, a nickname he said he had acquired from a Spanish friend. I refer to him in this judgment as Mr Shero, but have retained the name “Marco” when quoting witnesses who referred to him in that way.

One of the witnesses, Jamie Baxter, was known to her friends as “Mully”. I refer to her as Ms Baxter but have used “Mully” when quoting references to her by other witnesses.

Another witness, Jonah Loulanting, was described by his friend Ms Baxter:

Jonah used to dress like a woman but now is just gay.

Jonah’s dress preference is relevant because in oral evidence he was referred to as male but he appears dressed as a woman in CCTV footage that was in evidence.

The complainant

The complainant had a very simple story to tell, and she stuck to it. After a party for her 18th birthday, she was introduced to Mr Shero in a Civic bar by a friend who told her to go with Mr Shero to get some drugs. She went to his home with him, where he gave her cocaine then tried to rape her. When she protested he drove her back to Civic to meet another friend.

However, the details of the story were much less clear. The complainant had told different versions of aspects of the story to different people right from the beginning, and her evidence at trial was full of backtracking, corrections and concessions.

Notably, she had a selection of responses which were used repeatedly when pressed for details or to explain inconsistencies in her evidence. These included, not unreasonably, the fact that the events had happened two years previously and she couldn’t remember everything, but also, less explicably, the suggestion that the fact of it being “her 18th” (birthday or birthday party) had deprived her not just of the ability to remember events subsequently but also the capacity or inclination to pay attention to things that were going on around her at the time, even things that might be thought to have concerned her intimately. Examples of the complainant’s focus on her 18th birthday, and her lack of attention, included the following:

(a)The complainant described being introduced to Mr Shero:
So after Mully had introduced you to Marco what, if any, conversation did you have with Marco?---We were just introduced, I said it was my birthday, he said “happy birthday” and that was really about it, there wasn’t like a huge big conversation that I can remember. Like I was just happy, it was my 18th, so as you are.

(b)In cross-examination, the complainant described the introduction again:
Did you speak to him at all?‑‑‑No, I said it was my 18th.
And was that the complete extent of your conversation with this Marco fellow?‑‑‑I can’t remember what else I spoke about. It was two years ago.
Did you speak to him about anything other than the fact it was your 18th?‑‑‑Not that I can remember. Just small talk.
All right and what was the small talk about?‑‑‑My name’s [name suppressed], it’s my 18th. Just general small talk that you make.
...
And so was that the way that you remembered it on that day, that the introduction had been Mully saying, “This is [name suppressed] or whatever, go with Marco”?‑‑‑Yes.
That kind of introduction, if that was the truth, must have struck you as a bit odd, mustn’t it?‑‑‑It was my 18th. I was happy to be out, partying.
If that introduction was true, it must have struck you as a bit odd, mustn’t it?‑‑‑Not really, because I wasn’t paying much attention.

(c)The complainant was cross-examined about going to Mr Shero’s home:
So you were going back to his place, you say in relation to drugs, even though he’s not spoken to you about that at all?‑‑‑Not that I can remember. It was my 18th. I was happy.

(d)In cross-examination about CCTV footage recorded in ICBM, the complainant said:
And do you remember if you’d had any conversation with Marco at that point?---I can’t remember. I remember being outside happy, telling everyone it was my birthday.
...
Dancing with your body touching Marco?---If that’s what you want to call it, then yes.
Well, is that what it was?---Yes, you can hear music, I was dancing, I was happy, it was my 18th.

(e)The complainant was asked about going with Mr Shero to his car:
And why were you kissing him on the cheek then on the way to the car?---I don’t know. I was excited, it was my birthday. Mully said, “Go get drugs”, I was excited, happy.
Had you already taken some cocaine at that point?---No.
Were you excited because you had already taken cocaine?---No, I was excited because it was my 18th.

(f)The complainant was asked about her visit to Mr Shero’s house:
And when you got to his house, what of Marco’s behaviour led you to believe that there was perhaps someone else there?---He just said to be quiet, so I wasn’t really paying attention. It was my 18th. I was just doing whatever, really.

The party

The complainant gave evidence that her party was held at the home of a friend of hers in the suburb of Macgregor. The complainant had dressed for the party as Little Bo Peep. At the party, she had some vodka and some tequila, and was feeling happy. The complainant said that she did not take any drugs at the party, and that she could not remember taking any drugs before going to Mr Shero’s home, but then raised the possibility of a friend having put something in her drink. The complainant was sure that, when she spoke to police and a doctor shortly after the alleged rape, she had not said that she had taken any drugs before going home with Mr Shero.

A photograph posted on Facebook and apparently taken at the complainant’s birthday party showed the complainant with her tongue out. On her tongue was an item in the shape of a two-colour pill or capsule. The complainant said that the item was actually a tongue ring she was given for her birthday by her Aunty Pat who at the time was her boss at the salon, and she thought her aunty had also given one to the complainant’s friend Ms Parker. She denied that it was a pill with a drug in it.

In Civic – the first time

The complainant said that between 11pm and 12 midnight, her parents drove her and two friends, Ms Baxter and Mr Loulanting, to Civic. The complainant said that she was no longer friendly with Ms Baxter or Mr Loulanting. In Civic they went to several bars or nightclubs. In the first one, they went into the toilets and had jelly shots from the complainant’s handbag. In another club, Mr Loulanting bought the complainant a glass of champagne, which she “didn’t really drink” because she didn’t like champagne. The complainant said that she “wasn’t really drinking in the clubs really”, and that her level of intoxication was such that she “would know everything [she] was doing”, and that she “didn’t want to get too off [her] face because it was [her] birthday”.

At another club, ICBM, the complainant said, she was introduced to Mr Shero by Ms Baxter, who said “This is my friend Marco, he’s a real nice guy, go with him to grab some drugs”. The complainant said it was her birthday and Mr Shero said “Happy birthday”. She described this as “small talk”, and could not remember any further conversation. In cross-examination, the complainant was pressed about whether Ms Baxter’s introduction had struck her as odd, but responded by noting first that it was her 18^th and she was happy to be out partying, and then that she wasn’t paying much attention. Eventually she confirmed that what she had told one of the investigating police officers was all the conversation she could remember:

So are you saying that what you told Officer Purcell was the complete set of your introduction to Marco? ‘“This is [name suppressed], this is Marco, like we’re out for [name suppressed]’s birthday,’ And he said, ‘Happy birthday.’ Then Mully said, ‘Go with Marco, he’s a nice guy. Yes, go get some drugs, whatever’”. That was a complete conversation with Marco, was it?‑‑‑That I can remember, yes.

The complainant said that she wasn’t surprised by Ms Baxter telling her to go and get some drugs, although she couldn’t recall any conversation about drugs earlier in the evening.

The complainant and Mr Shero go to Mr Shero’s home

Some time after being introduced to Mr Shero, the complainant left ICBM with him. The complainant’s initial evidence was:

I just think we just went off to go to his car to go for a drive to get the drugs or whatever.

The complainant could not recall any other discussion with Mr Shero in ICBM, or saying she wanted to go to his home. Nor could she recall how long after the introduction they left, or even whether it was seconds or minutes.

As they walked to Mr Shero’s car, the complainant asked where they were going and Mr Shero said “Bruce” (another Canberra suburb). The complainant could not remember any other discussion then. As they drove they had the music up and Mr Shero was “making small talk”. The complainant could not remember any conversation in the car, but she knew she was going to Mr Shero’s house to get some drugs, because Ms Baxter had mentioned it. She “just assumed pills”. Later the complainant said she believed they were going to get drugs from Mr Shero’s house then go back to Civic “where everyone was”.

The complainant said that in the car or at his home, Mr Shero said that he had cocaine. Before that, she said, there had been no discussion with him about drugs or about paying for them.

Mr Shero’s car was a yellow Skyline. The complainant denied she was excited when she got into the Skyline, but she thought it was a nicer car than the one she drove, and a manual car, so she kept asking Mr Shero if she could drive it. He said, “Wait until we get into Bruce”. When they reached Bruce, Mr Shero let the complainant drive the car for the last couple of streets to his house, while he directed her.

The complainant said that when they left ICBM together, she was being friendly to Mr Shero rather than affectionate. The complainant said that she was dancing around in the passenger seat on the way to Mr Shero’s home, but denied kissing Mr Shero several times during the drive. She agreed, however, that she had kissed Mr Shero once on the cheek, because “I was excited, it was my birthday”, and she was excited and happy about getting drugs.

At Mr Shero’s home

When they reached Mr Shero’s unit, the complainant said, she parked the car on the street and they went through the gate, in the front door and to Mr Shero’s bedroom, which was on the left. The complainant said that when they arrived at Mr Shero’s unit, “everything was fine”.

The complainant couldn’t initially recall anyone else opening the door to the unit, but agreed that Mr Shero’s housemate could have come and opened it. The complainant said she wasn’t paying attention; she couldn’t recall being introduced to Mr Shero’s housemate and saying “Hi”, but she agreed that she and Mr Shero weren’t alone in the unit. Later the complainant said that she believed there was someone else in the unit because Mr Shero told her to be quiet, but noted that she “wasn’t really paying attention. It was my 18th.”

In Mr Shero’s bedroom

The complainant said that in Mr Shero’s bedroom there was a plate with two lines of what Mr Shero said was cocaine, two red pills and a $5 note. She did not refer to the shape of the plate. The complainant said that she snorted one line of cocaine, and she assumed Mr Shero had the other line because it had gone, but she hadn’t been paying much attention. Although she had never had cocaine before, the complainant said, she had snorted pills and didn’t need to watch Mr Shero to work out what to do. The complainant said that, after snorting the cocaine, she felt “normal”, and denied that she felt sexually aroused, anxious or confident, or that she was suffering major mood swings.

The complainant said that she told police that when she left Mr Shero’s room she took the pills and the $5 note with her because she was angry. She put the pills down her bra but couldn’t recall where she put the $5 note initially, or what happened to it. The complainant did not give the pills to police. By the time she got to the Winchester Police Centre (where she took off her bra to give to investigating police), she had left the pills at Belinda’s house (the house in Macgregor) or chucked them somewhere, but she didn’t consume them. The complainant said she thought the pills were “speed”, and had called them “pingers” to police. Later in her evidence the complainant said she threw away both the red pills and the $5 note.

After snorting the cocaine, the complainant said, she went to the en-suite bathroom, where she sat on the toilet using her phone, not apparently to speak to anyone but possibly to text or to check the time. While she was sitting on the toilet, Mr Shero walked in and unzipped his pants. She could see Mr Shero’s penis, which was not erect. Asked for more detail, the complainant said she was not focussed on Mr Shero’s penis. It was “normal” and not erect. She could not say whether Mr Shero was circumcised or not, and she didn’t really care about his penis. The complainant yelled at him to get out and leave her alone to “do [her] business”. The complainant said she yelled and pushed him away – probably around his stomach. Mr Shero left the bathroom, and the complainant pulled up her pants, washed her hands and left the room.

The complainant later referred to raising her voice, confirmed that she had yelled, but agreed she had not “screamed” at this point.

The complainant said she walked over to Mr Shero’s bed and he pushed her onto the bed. The complainant tried to push him off; she used her leg and one arm to push Mr Shero, while trying to call her friend Ms Parker’s number with the other hand. Mr Shero put his fingers in her vagina for about five seconds and she screamed at him. The complainant said that when Mr Shero pushed her onto the bed, he put his fingers in her vagina, but she was not sure how many fingers, and not sure what he did with his fingers in there; she was trying to message Ms Parker and was not paying attention. The complainant couldn’t remember where her underpants were at this stage. Seconds later, Mr Shero put his penis in her vagina, and kept it there for about five seconds. She was screaming and pushing him off. The complainant said that she had first tried to dial Ms Parker’s number, but kept getting the numbers wrong; then she remembered that one of her last calls had been to Ms Parker so she was scrolling down her “last calls” until she found Ms Parker’s number. While the complainant tried to dial Ms Parker’s number, Mr Shero got off her, pulled his pants up, and kept saying “It’s all right, it’s all right, it’s okay” or “It’s all right, it’s all right, I’ve stopped”.

The complainant couldn’t remember what she told Dr Tyson about being pulled out of the bathroom. There “wasn’t a big struggle”, she said, Mr Shero just pushed her shoulders and she fell back onto the bed because “I was too drunk”. The complainant agreed that the description she had given Dr Tyson, that Mr Shero had “pulled and pushed” her onto the bed, was not accurate, but said that Mr Shero did push her.

The complainant said that Mr Shero had pushed her onto the bed by her shoulders, but she was not sure if he had pushed one or both shoulders or if he had used one hand or two. The complainant commented that it had been two years ago, and “when you want to forget something you do”.

After some thought, the complainant said in response to a question that Mr Shero had pushed her from in front, and that she remembered falling backwards. The complainant said she had used one leg and one arm pushing and kicking, trying to push Mr Shero away, and had her mobile phone in her hand, trying to call Ms Parker. She was using her left arm to push, with her phone in her right hand. She said that she was trying to message Ms Parker and trying to dial Ms Parker’s number. The complainant agreed that she wasn’t using both hands to deal with the attack. The complainant agreed that she had told police that she was using her foot to kick while trying to make a call, and that she had not referred to using her hand to push Mr Shero, but denied she had invented her story. Pressed about the inconsistency between what she told Dr Tyson and what she told police, the complainant said it was hard to remember every single little detail.

The complainant denied that she and Mr Shero lay on the bed together and kissed. She said she couldn’t remember if there was kissing, but denied that she put her hand down Mr Shero’s pants and played with his penis, and that his penis came out of his pants and he ejaculated. The complainant told Dr Tyson that Mr Shero had not ejaculated.

The complainant was asked about Mr Shero’s pants. She first said that in the bedroom, Mr Shero had his pants down, but then said that at all times, Mr Shero had his jeans up but unzipped. The complainant agreed that she had told police that Mr Shero already had his pants down while he was fingering her, but she couldn’t remember when he pulled them down. She said that when she came out of the bathroom, “I wasn’t paying attention to anything”, and that during the assault she didn’t notice Mr Shero’s pants.

The complainant was also unable to provide any detail about how Mr Shero had achieved penetration:

Well, how did he line it up? Was there any lining up of the penis with the vagina to do it?---I don’t know. What, do you think I was sitting there watching everything he was doing?
Did he put it in and take it out and put it back in again, is that what you mean?---I don’t know, because I was too busy trying to get him off me and to try and ring Chelsea to come and help me.
And I think you say that the process that you were going through as you say he was putting his fingers inside you and putting his penis inside you a couple of times was that you were scrolling to find Chelsea’s number, is that right?---Yes, yes.

The complainant was, however, sure that Mr Shero had held her down. She was initially unable to explain how this was achieved, and became distressed. After a break, she said that Mr Shero had put one hand on her shoulder and pushed her down onto the bed. The complainant conceded that this was the first time she had told anyone that, but asserted that she was not making it up. The complainant agreed that Mr Shero hadn’t threatened her, but confirmed her evidence that over a period of about 15 seconds he had put his fingers, then his penis, into her vagina. The complainant was not sure how many times he had done this – she couldn’t say whether he had put his penis in once or twice, she said, because she had been too busy trying to dial Ms Parker’s number.

The complainant agreed that she had not tried to ring the police during the alleged assault.

The complainant was not sure what she had told police about how many times Mr Shero put his penis in, and was not sure why she told police that it happened once and Dr Tyson that it happened twice. She said that “It was all happening at once”, and that she wasn’t counting.

The complainant said she had yelled, screamed and cried, and that she hadn’t only cried when they were leaving Mr Shero’s unit. She said that Mr Shero told her to be quiet, saying “Shut the fuck up”. The complainant agreed that she told police that Mr Shero said “Shut up and stop crying, you’re going to wake the neighbours”, and said that he said “Shut the fuck up” in the car.

The phone calls

The complainant gave evidence of trying to call her friend Ms Parker, using her phone with one hand while trying to push Mr Shero away as he sexually assaulted her. Eventually, the complainant said, she got hold of Ms Parker, as she and Mr Shero left the unit and were going to the car. She was crying on the phone and Mr Shero told her to “shut the fuck up” – Ms Parker heard this and said to put Mr Shero on the phone.

The complainant said that she had tried to ring Ms Parker “heaps of times” but that Ms Parker wouldn’t answer. She initially said that she had got onto Ms Parker while she was still in Mr Shero’s unit, then said that she couldn’t remember “because it all happened all at once”, but finally agreed that she only managed to speak to Ms Parker as she and Mr Shero headed to Mr Shero’s car to return to Civic ). She recalled speaking to Ms Parker while she (the complainant) was in the car.

The complainant was, however, quite confident that Mr Shero did not call Ms Baxter from his home, talk to her and then put the complainant on the phone.

The complainant could not recall speaking to Tom Baxter or to Jamie Baxter by phone during the evening.

The complainant and Mr Shero return to Civic

During or after their sexual encounter, the complainant said that she wanted to go back to Civic, and Mr Shero drove her back, stopping where he had been parked earlier.

When the complainant had spoken to Ms Parker, Ms Parker said she would come and get the complainant in Civic. The complainant said she thought that Mr Shero was on the phone on the drive back to Civic, and she couldn’t remember any conversation with him during that trip.

The complainant said that when she got out of the car, Mr Shero asked for her phone number and she gave it to him, before walking back to ICBM. She first said she didn’t know what she was thinking when she gave Mr Shero her number, but in cross-examination the complainant said that she had given him her phone number because she was scared, giving the following evidence:

Did you give him the phone number because you were not actually scared of him?---No, I was scared of him.
Did you give him the phone number because he’d not actually sexually assaulted you?---He sexually assaulted me.
And so when he asked for the number you gave him your real phone number?---Yes.
And your explanation of that is because you were scared?---Yes.

In Civic – the second time

Out the front of ICBM, the complainant saw Ms Baxter and several other people she knew. The complainant couldn’t recall seeing Mr Loulanting, but when she saw Ms Baxter, the complainant said, she was crying and in hysterics, and said she didn’t want what happened. The complainant said she was crying, then Ms Parker pulled up in Johnno’s car, put the complainant in the car, spoke to Ms Baxter, and got back in the car. They drove away. Also in the car were Johnno who was a friend of a friend, and Tom Baxter. The complainant was taken back to the scene of the birthday party in Macgregor.

In the car, the complainant told Ms Parker, who was comforting her, that Mr Shero had raped her. The complainant was not sure if Johnno or Tom Baxter could hear.

The complainant reports the incident

The complainant said that Ms Parker had rung the complainant’s mother, despite the complainant telling her not to, and told her about the sexual assault. The complainant didn’t want Ms Parker to call the complainant’s mother because she was afraid of telling her what happened, and didn’t want anyone to know. The complainant’s mother turned up at the house in Macgregor shortly after the complainant got there, and took her to hospital. From the hospital, the complainant went to the Winchester Police Centre in Belconnen.

At the Winchester Police Centre, the complainant spoke to Hayley Hinton and Carly Purcell and also saw a doctor, surrendered her clothes, and gave a urine sample. She could not remember what had happened to the tampon she had been using. The complainant told the doctor what she had drunk and that she had used cocaine, and the doctor took swabs and samples.

The complainant couldn’t remember whether she told Dr Tyson that Mr Shero had oral contact with her neck, and couldn’t remember whether her earlier evidence of her encounter with Mr Shero had included him touching her neck with his mouth.

In re-examination, the complainant couldn’t recall anything about the circumstances of telling Dr Tyson what had happened; she said she was just trying to block everything out and “pretend like it didn’t happen”.

The Facebook approach

The complainant knew a person called Annelise Sunderland, who had added her as a Facebook friend before sending her private messages on Facebook about what had happened with Mr Shero on the night of 6-7 June 2009. The Facebook exchange was in evidence, as follows:

Ms Sunderland: Hey [name suppressed]... just have a quick question for you... is it true that Marko raped you on the night of your birthday? I dont care but people are saying alota shit and yeah...anyways...cocooc
The complainant: yeah he did.
Ms Sunderland: but if he raped you i would have been able to hear it...and i was in the next room and his bedroom door was openn...
The complainant: well i dont have to explain myself to anyone he did wat he did why would i have gone to the police and be going through all this shit if he didnt do anything it was my 18^th for fuck sake.
Ms Sunderland: Im not saying he didnt But im saying im one of the main witnesses...And im sure you know that its one of the main offences in this country to lie about such a serious thing. Hope all goes well anyways

The complainant said that she told Ms Sunderland it was none of her business and “deleted her off Facebook”.

The complainant’s attitude to Mr Shero

The complainant told investigating police that Mr Shero was a “pretty boy”, by which, she said, she meant “somebody who would dress nice, look after themselves”. She denied that she had considered him good-looking, saying that she “wasn’t really paying attention to that”. The complainant denied that what she said to police meant she found Mr Shero attractive, saying she was not attracted to Mr Shero because he was “not her type”. Later, she said she was not attracted to Mr Shero because she was not attracted to “wogs”. As well, she said, she was attracted to “big blokes”, so physically Mr Shero was not attractive to her (Mr Shero was agreed to be about the same height as the complainant). The complainant repeatedly said that she had no sexual interest in Mr Shero and no interest in “hooking up” with him. Although she had a clear memory of kissing him on the cheek, the complainant said she didn’t go with Mr Shero for sex.

Chelsea Parker

Ms Parker said that the complainant was one of her best friends. Their joint birthday party was held at another friend’s house, where Ms Parker was then living. During the party Ms Parker, the complainant and their friend had shared a 750ml bottle of Tequila. Ms Parker had had one-third of the bottle of tequila and four Cruisers. She said that she and the complainant were intoxicated but “not paralytic”.

Around 12 midnight, the party “got stopped by the cops”. Ms Parker went to a house in Florey, and the complainant went to Civic; Ms Parker would have gone to Civic too, but had lost her ID.

Between 3am and 5am, while she was still at Florey, Ms Parker got a call from the complainant. The complainant asked Ms Parker to come and get her, but said she (the complainant) didn’t know where she was. The phone call was terminated; Ms Parker made contact again (she was not sure who rang whom) and the complainant said “He won’t stop, he won’t stop”. Ms Parker heard a male voice in the background saying “Would you shut up” and “Get off the fucking phone”. Ms Parker said it was just a male voice, with nothing noticeable about it.

Ms Parker organised a lift to Civic to look for the complainant. She got back on to the complainant, who said “he” was taking her back to Civic, and Ms Parker told her they would meet out the front of ICBM. Johnno and Tom Baxter drove Ms Parker to Civic and stopped in front of ICBM. Ms Parker saw the complainant walking from another bar towards ICBM. Ms Parker walked over to the complainant, grabbed her, and took her back to the car. The complainant had been with Ms Baxter and several others when Ms Parker saw her. Ms Parker had asked them what happened, and they said they didn’t know.

Ms Parker said that the complainant was pretty upset; she later described this as “mainly tipsy”. When Ms Parker hugged the complainant she collapsed into Ms Parker, crying. In the car, the complainant didn’t say much – Ms Parker suggested that perhaps she didn’t want to talk in front of the boys. They went straight to Macgregor.

Ms Parker had called the complainant’s mother, first while she was on her way to pick up the complainant, then again when they got to Macgregor. The complainant’s mother collected the complainant and left.

Ms Parker was asked what the complainant had told her:

Well, that was the conversation when we got back to Belinda’s house. I asked her what happened and she said that after she had some cocaine she went to the toilet and she came back into the bedroom and he pushed her on the bed. And then she told him to stop but he wouldn’t and then that was pretty much it.

She also said that the complainant had said “He put it in and wouldn’t stop”.

Ms Parker said that she used to have a tongue piercing, but couldn’t recall receiving a gift for her tongue piercing. She said she had never seen the complainant coming off cocaine.

The complainant’s mother

The complainant’s mother said she saw the complainant open the birthday gift from Pat, her former boss, and then put the tongue ring in.

The complainant’s mother gave evidence that at midnight, she had picked up the complainant from the party venue and taken her, with two friends, Ms Baxter and Mr Loulanting, into Civic, where she dropped them outside ICBM. At the party, the complainant had been drinking cans of Red Bear (vodka and raspberry fizzy drink).

The complainant’s mother said in evidence that the complainant was “louder than normal” and “just very excited. Excited to be out, to have all her friends around”. The complainant’s mother had told police that the complainant had seemed “quite intoxicated”, “overly excited and not her usual self”, and “loud and happy”. (t 205)

The complainant’s mother said that Ms Parker had rung her at about 3.30am, saying “[Name suppressed]’s in trouble. I’m not sure where she is”. Then Ms Parker rang and said the complainant was at the party house and “she needs you, come and get her”. The complainant’s mother met the complainant at the house, and on the way out to the car the complainant said “Mum, I’ve been raped”. When her mother asked her what she had been doing, the complainant said she “was going back to do a line”. The complainant’s mother wasn’t surprised when the complainant said she had gone for a line of coke, because she knew the complainant had had an Ecstasy tablet at a rave party.

The complainant’s mother said that she had decided to take the complainant to hospital and that it was not the complainant’s idea. She thought the hospital had decided to call the police.

Tanya Stefszky

Tanya Stefszky said she had been in a relationship with Mohamad Hameed, who was living in Mr Shero’s unit, and on 6 June 2009 Ms Stefszky stayed the night at the unit. Mr Hameed’s bedroom was across the hall from Mr Shero’s bedroom. Ms Stefszky remembered that Mr Shero had brought a girl home, and she remembered this because Mr Hameed had told her that the police had called him about it later. Asked what she recalled about being woken up that night, Ms Stefszky said:

so what, if any, recollection do you have of being woken up that night?‑‑‑The only reason why we would have been woken up was when - when they were either coming in or leaving, so didn’t - didn’t actually hear anything else apart from that.

Ms Stefszky said she thought that when they looked out the window they may have seen Mr Shero with a blonde woman. Ms Stefszky did not remember a woman screaming or yelling, but said she would have got up and checked if she had heard this.

Jamie Baxter

Ms Baxter said she was no longer friendly with the complainant.

Ms Baxter said that after the complainant’s birthday party, she and Jonah were driven to Civic, with the complainant, by the complainant’s mother, and the group that she and the complainant joined went to several nightclubs.

Ms Baxter said that the complainant had been kissing people in each different club, including one described by Ms Baxter as “a random guy”.

Ms Baxter saw Mr Shero, and the complainant came over to her and said “Who’s that. Can you hook me up?” Ms Baxter told Mr Shero that it was the complainant’s birthday, and he bought them drinks (a bottle each of Smirnoff Double Black with raspberry). On three occasions, the complainant asked Ms Baxter if she could hook the complainant up with Mr Shero. This included shortly after Ms Baxter told Mr Shero it was the complainant’s birthday, when the complainant asked Ms Baxter to come to the toilet with her and renewed the request.

Ms Baxter said that after they came back from the toilet, the complainant was talking to Mr Shero and Ms Baxter was mainly talking to Jonah. In the smokers’ area, Ms Baxter said, the complainant and Mr Shero were hugging each other. The complainant and Mr Shero then told Ms Baxter they were going for a quick drive, or back to Mr Shero’s house, although Ms Baxter couldn’t remember which of them had actually said it. The complainant said she was going for a drive and she and Mr Shero left pretty much straight away, going out the front doors. Ms Baxter and Jonah followed them back from the smokers’ area into the club.

Ms Baxter said that she had received a call from Mr Shero’s phone, made from his home. Ms Baxter thought that Mr Shero had called and then put the complainant on, who said she wanted to come back to Civic, then Mr Shero confirmed that was what they were doing.

Ms Baxter said that she next saw the complainant when the complainant and Mr Shero walked back towards the front of ICBM some time later. The complainant looked “OK .... a bit upset”. Before the complainant reached Ms Baxter, Mr Shero approached Ms Baxter and asked what was wrong with her friend, who, he said, was saying that he had raped her. Ms Baxter said that the complainant had walked straight up to Jonah, then approached Ms Baxter and said “He raped me” or “He tried to rape me”. Ms Baxter was not sure which allegation the complainant made to her, but she was sure that the complainant had alleged a rape to either her or Mr Loulanting and an attempted rape to the other.

Ms Baxter said that the complainant was there with them for 10 or 15 minutes before she was picked up by Johnno and Ms Parker. Ms Baxter walked the complainant to the car. Later, Mr Shero told Ms Baxter that he didn’t do anything and he didn’t understand what was going on. Ms Baxter said that Mr Shero had given her and Jonah a lift home that night.

Asked about Annelise Sunderland, Ms Baxter said that she didn’t really know Ms Sunderland but had heard a lot about her and preferred not to associate with her.

Ms Baxter said that Mr Shero has a fairly heavy accent and can be hard to understand.

Ms Baxter did not give any evidence of telling the complainant to go with Mr Shero for drugs.

Jonah Loulanting

Mr Loulanting said that Mr Shero was a friend of his friend Ms Baxter. Mr Loulanting first met the complainant on the night of her 18th birthday.

Mr Loulanting said that Mr Shero had bought them Smirnoff Blacks with raspberry in Mooseheads, and that the complainant was also flirtatious, and stumbling, at Mooseheads, but in cross-examination he said that it was at ICBM that he saw Mr Shero.

Mr Loulanting said that by the time they got to ICBM, the complainant was “really drunk, like she was not classy at all”. When the complainant disappeared for an hour or so, Mr Loulanting was worried because he had told her mother that they would look after her.

Mr Loulanting said that when the complainant returned, she had told him that Mr Shero had raped her, but Mr Loulanting felt that the complainant had to say something like that because when she returned, he had spoken angrily to her, saying “Where the fuck were you”. Ms Baxter told him that the complainant had said Mr Shero tried to rape her, but the complainant told Mr Loulanting that Mr Shero had raped her.

When Mr Shero and the complainant returned to Civic, Mr Loulanting saw Mr Shero walk past, and then the complainant talked to Ms Baxter. Mr Loulanting saw Mr Shero again later when Mr Shero picked him and Ms Baxter up in the yellow car.

Mr Loulanting said that on the night concerned he had been wearing a Barbie “shirt dress thingy”, mini jacket of “dotty black leather”, curly hair and big earrings, boots, and leggings. He was identifiable on the CCTV footage by reference to this clothing.

Annelise Sunderland

Ms Sunderland said that she had met Mr Shero in 2009 through friends, mentioning Ms Baxter and Mr Loulanting and a person called Crystal. Ms Sunderland knew the complainant’s name from Facebook. Ms Sunderland said that Mr Shero told her who the complainant was, and offered Ms Sunderland money ($10,000 or $20,000) to get the complainant to say that Mr Shero hadn’t raped her. Ms Sunderland said she had had similar conversations with Mr Shero on a couple of different occasions.

Ms Sunderland said that Mr Shero had been present when she engaged in the Facebook exchange with the complainant as set out at [55] above. She agreed that she said on Facebook that she had been in the next room to the complainant and Mr Shero, but also agreed that she hadn’t been, and that she hadn’t known Mr Shero at that time. Apart from the Facebook contact, the only contact Ms Sunderland had had with the complainant was that she saw the complainant in the toilets in Mooseheads one night.

At some point, Ms Sunderland had asked her sister to pretend to be the complainant, but her sister had refused.

In cross-examination, Ms Sunderland agreed she had told lies because she wanted $10,000. She had lied to the complainant on Facebook about being in the next room. She had lied to Mr Shero’s previous solicitor by telling him she had got a confession from the complainant that her allegation wasn’t true. She had lied to Mr Shero by telling him she had got a confession from the complainant. However, Ms Sunderland denied that she was lying about the offer of $10,000.

Alexandra Tyson

Dr Tyson said that she had examined the complainant at 11am on 8 June 2009, about 32 hours after the alleged rape.

Dr Tyson had swabbed the complainant’s neck (for saliva), her labia, perineum, vagina (high and low) and anus.

Dr Tyson said that the complainant reported that Mr Shero had pushed her onto the bed, then “He fingered me then put his dick in me twice”. The complainant said she was yelling and crying out to stop, and that Mr Shero shouted at her to stop yelling. Dr Tyson recorded that after this, the complainant said, “He stopped and took me back to the city”.

Dr Tyson’s “Summary of Assault” recorded no weapon, no restraint or attempted restraint, no striking with hands or legs, no choking or strangling, and no biting, burning or threats of harm. The complainant was recorded as unsure whether she had been grabbed or held but as having suggested shoulders and arms as sites of contact. The complainant was recorded as having pushed Mr Shero away and yelled at him, and as suggesting that she “may have kicked him”. Dr Tyson recorded claims of digital and penile penetration, but no other form of penetration or attempted penetration, no ejaculation, no lubricant or condom, and no attempt at oral contact except on the complainant’s neck. Dr Tyson recorded that since the incident, the complainant had bathed or showered, used sanitary towels and tampons, and urinated.

Dr Tyson recorded the complainant’s report of having drunk 300ml of Tequila, two 300ml drinks of Red Bear (a vodka mixer), one Lemon Ruski and half a glass of champagne before the incident.

Dr Tyson recorded a reported use of cocaine, said by the complainant to be her first use, shortly before the alleged assault. Dr Tyson had observed two small bruises, 2cm and 3cm and purple and brown, respectively, on the complainant’s right arm, but in evidence said she could say nothing about the age of the bruises by reference to their colours.

At the complainant’s vaginal opening, Dr Tyson observed blood (dried and liquid), but she did not conduct an internal examination because the complainant was uncomfortable about this because she was menstruating. Dr Tyson did, however, take high and low vaginal swabs.

Dr Tyson explained in evidence that the complainant’s menstruation meant that any semen or skin (epithelial) cells in the vagina would have been diluted or even removed by the menstrual flow, and the use of a tampon would have removed much material from the vaginal cavity. Dr Tyson said that a tampon present in the vagina when a penis is inserted may pick up semen or skin cells, which would be removed when the tampon is removed.

Dr Tyson said she had limited professional knowledge of the effects of cocaine, but agreed that they could include a “rush”, agitation, a heightened sense of being, possibly a sense of well-being, a feeling of invincibility, increased libido, paranoia, panic, and anxiety. There could be a radical mood swing when “coming down”.

Dr Tyson was not able to give any clear information about what might cause radical mood swings in withdrawal from cocaine, noting that the research literature did not often consider this question in a controlled environment. She suggested, however, that a predisposition to mood swings, or high or long-standing cocaine use, might be relevant. Dr Tyson said that intoxication might temper the effects of cocaine, and might mean that someone who was heavily intoxicated wouldn’t feel all the “usual stimulatory effects” of cocaine.

Fiona Knott

Ms Knott, a forensic biologist, had been responsible for the team that had conducted forensic analysis of various items of evidence and samples, and provided evidence about the team’s report.

Ms Knott, a forensic biologist, had been responsible for the team that had conducted forensic analysis of various items of evidence and samples, and provided evidence about the team’s report.

Ms Knott said that the tampon taken from the complainant was received for DNA analysis on 11 April 2011 (ie nearly two years after the incident). No semen had been detected on the tampon, so there had been no DNA analysis of the tampon.

The tampon had shown signs of degradation and discolouration, possibly reflecting fungal or bacterial activity which, Ms Knott said, could have degraded the DNA and reduced the chance of a result from DNA analysis. Ms Knott was not asked, however, whether this degradation might have affected the detection of semen as such (as distinct from the quality of any DNA recovered).

The genital swabs and smears taken by Dr Tyson had shown no semen or spermatozoa, so no DNA analysis was conducted on them.

The dry swab from the complainant’s neck showed a mixed DNA profile and the report indicated that it was 12 million times more likely that Mr Shero and the complainant were the contributors to the mixed profile than that the contributors were the complainant and “an unknown, unrelated individual selected at random from the Australian Caucasian population”. This was described by Ms Knott (in accordance with a standard used by the Australian Federal Police (AFP) Biological Criminalistics Team) as giving “extremely strong” support for Mr Shero’s role as a contributor to that mixed profile.

Forensic examination of the complainant’s underpants had found semen on the pants at locations described in the report as “outer front, right of crotch”; “inner back on seam left of crotch”, and “inner front, mid-leg”. Ms Knott said that DNA analysis of the semen provided evidence that she described as giving “extremely strong” support for Mr Shero being the source of the semen (the numerical ratio for this sample was 111 billion times).

Defence counsel did not challenge the reliability of the forensic evidence to the extent that it identified Mr Shero as the likely source of the semen deposits found on the complainant’s underpants. However, in cross-examination of Ms Knott, counsel established that the analyst involved appeared to have made a mistake in identifying the front and back of the underpants. This was an understandable mistake given that they were of the style described as “boyleg”, in which the front and back of the pants are cut in a very similar way and only when one holds them by the waistband and lets them hang does it become apparent that the back section of the pants hangs slightly lower around the upper legs than the front section – such a demonstration had to be conducted in court before Ms Knott agreed that the report did seem to have been prepared on the basis of a mistake about which was the front and which was the back of the complainant’s underpants.

The effect of Ms Knott’s concession was that the report in relation to the three areas on the pants where Mr Shero’s semen had been detected had to be read differently. Specifically, the three points, described in the report as “outer front, right of crotch”, “inner back on seam left of crotch” and “inner front, mid-leg” now had to be read as “outer back, left of crotch”, “inner front on seam right of crotch” and “inner back, mid-leg”.

Brett Scott

Mr Scott was a crime scene scientist within the Forensics Operations area of the AFP. He gave evidence of searching Mr Shero’s car, bedroom and en-suite. He said that police had identified what they believed to be semen stains on the sheet on Mr Shero’s bed, and photographed the stains. The photographs were exhibited.

Haylee Hinton

Constable Hinton had been assigned to the Sexual Assault and Child Abuse Team.

Interview with the complainant

Constable Hinton said that she had seen the complainant at the Winchester Police Centre, where the complainant told her she had been sexually assaulted by “Marco” after going to his house to take some drugs. Constable Hinton gave evidence of the collection of the complainant’s urine sample, used tampon, two gauze swabs, and her clothes, which had all been sealed up. The complainant told Constable Hinton that she had taken drugs and had been drinking alcohol until the early hours of morning, but she had seemed quite coherent and normal, and was quite happy to take part in a medical examination.

Search of Mr Shero’s home

Constable Hinton described the search of Mr Shero’s home on 9 June 2009, the Tuesday after the Sunday of the alleged rape. Also present were Mohamad Hameed who lived there, and Anna Kalogris who did not. Mr Shero had tried to contact his lawyer, and managed to speak to a solicitor. Constable Hinton said that when Mr Shero’s bedroom was searched, six small pink pills were found in a pocket of a pair of jeans on the floor of the room.

Transcript of execution of search warrant

The execution of the search warrant at Mr Shero’s home was recorded and a transcript was in evidence. It is apparent from the transcript of Mr Shero’s conversation with police officers that his spoken English was not particularly good. He was offered a copy of the search warrant to read, but asked the police officers to read it to him, explaining that he could understand it if they read it to him but that it would take a long time for him to read it for himself.

As to Mr Shero’s command of English, I note also Ms Baxter’s evidence that he has a fairly heavy accent and can be hard to understand (at [83] above) and DSC Purcell’s evidence that English is Mr Shero’s third language after Kurdish and Arabic (at [143] below).

Mr Shero’s conversations with police

In considering what Mr Shero told police, I take account of the fact that it was not sworn evidence and that he was not able to be cross-examined by the prosecutor. On the other hand, although Mr Shero had apparently had a brief conversation with a legal aid solicitor shortly after police arrived at his unit with the search warrant, he then spoke to police without the presence of a lawyer and despite his apparently poor command of English, and did so very frankly in terms of what he said (whether his demeanour suggested frankness is something I am not in a position to judge).

During the search, Mr Shero denied having seen any cocaine. There was a square plate in the dishwasher but neither Mr Shero nor Mr Hameed could remember when the dishwasher was last used, or how long the square plate might have been there. Mr Shero said his sheets had not been changed since the previous Sunday, the day of the alleged rape. He agreed that blood on the toilet seat might have been left by “that girl”.

Mr Shero said that a girl he knew called him into ICBM and told him to look after “the [complainant]”, saying “she likes you”. Mr Shero said he was drinking too much as well that night. Mr Shero told the girl that he wanted to go home and she said she wanted to come with him. He said “Sure?” and she said yes. When they got back, he had trouble unlocking the door, but his flatmate came and opened the door. The complainant asked to use the toilet and she was there for three or four minutes, while Mr Shero had a smoke in the kitchen.

Mr Shero told the AFP officers:

And then about – after four – four minutes I come back. She’s come down, like sit there. She’s lie down there. We kiss, I mean, like, she was kissing me, like – you know, she was, like, kissing me and holding – like, but, like, she’s get a phone call. She’s talk on the phone a little bit, I don’t know. She say, “Oh, you have to take me ICBM now”. I say, “Why you going back there?” and she say, “Oh, you have to take me now.” I said, Okay.”
...
We came out, when we were outside she was talking on the phone. She start nearly cry. I said, “What are you crying for?” She say, “No, I’m not nothing, nothing.” And then she start dancing in the car, like, dancing you know like with the music.

Mr Shero told the officers that after he took the complainant back to the front of ICBM, and pointed out the girls she had been with, he received a phone call (apparently from one of those girls) telling him that the complainant claimed he had raped her. Mr Shero claimed that someone’s brother had called him and told him “We all know [the complainant’s] liar”.

Mr Shero suggested to AFP officers a plan by others to make problems for him, and mentioned an incident two months earlier when a man had hugged him and engaged him in conversation and then another man punched him in the face and he had to go to hospital. He suggested someone else had put blood in his bathroom.

Mr Shero told police that the friends with the complainant were Ms Baxter, Ashley, Mr Loulanting and others whose names Mr Shero didn’t know. Mr Shero said he had had four shots of a mixed drink known as “quick fuck”. Mr Shero said “I was drinking little bit too but I never lost control like, to do something wrong”.

Mr Shero said that Ms Baxter introduced him to the complainant and said “She likes you”. Questioned further, Mr Shero gave more detail:

She tried to come and hug me and I start kissing her and she said, “I like you,” you know, like, and then they go back inside. She told me “Look after her”. I said, “Okay.” And then I told her, “Look, I” – because I know other girl as well and they are, like – she was staring at me.
Like, I don’t know – I wasn’t, like, to she see me, like, with girls or something. But I told her, “Look, I am really – I came out from Meche and I want to go home. Do you want to stay go back to your friends or do you want to come with me?” She say, “I come with you,” and she was holding my hand. We come out, we go to the car. I was parking the car from other side. And then, like, the way I drive she, like – she always, like dancing, like kissing me here, like, touching me everywhere.
And then we come here. She went to the toilet, like I said before, and then I go have a smoke. As soon as I come out, like I say, I say “What are you doing, come sit down here”. She lie down here, I sit her. Like I hug her, kiss her little bit but then she say, “You have to take me home.” She’s got a, like, call, she’s talk on the phone and she say, “you have to take me to ... (indistinct) ... take me back to Civic, like, I want to go see Mully, Mully,” you know, but I say, “Mully, she’s my friend too.” And then she say, “I have to go back to her.” I say, “Okay, I take you back there.”

Mr Shero told police that Ms Baxter had called him while the complainant was in the toilet, and he said they had come home, then he had offered to put the complainant on and there had been talk. Then later, while the complainant was using her phone, Mr Shero had called Ms Baxter.

When Mr Hameed had asked him the next day what had happened, Mr Shero told him he had had to go back. He said to police:

I thought she was going to stay with me all night, like, but she doesn’t want. I take her back to Civic. Yeah, that’s when I take her back there and I call her friend and I said, “We are coming. Where you are?”

Mr Shero said that the complainant seemed to change her mind about staying the night after she got or made a phone call:

She was happy when she come here ... and as soon as she talk on the phone she changes.

Back in Civic, Mr Shero said, he walked the complainant back to ICBM and, he told police, there were “four, six, seven guys there”. Later, when Ms Baxter called him, she said “Slut, I don’t believe her, but she just trying to push the guys to bash you”.

Mr Shero described sexual activity with the complainant to police:

A252SHERO: As soon as – as soon as she sit here, I sit there, but we was kissing, playing with her tits as well. She was playing with mine but I was just – I just lie down on here start kissing little bit and she say, “You have to take me home – to Civic.”
...
A258SHERO: But, like, I say she was playing with me and I kiss her, like, touching her and I didn’t jump on her as soon as like – I don’t know, like, how to explain. I come but not – without sex, without something, like my get up or something, you know, like - - -
Q259When you [say] you come, did you just come on the sheets?
A259SHERO: Yeah.
Q260Or did you come on anything else?
A260SHERO: No.
Q261Did you come on any of [the complainant’s] clothing or any other part of her?
A261SHERO: I don’t know. Probably she’s sitting on but I come on the sheets. But, like, you know, sometimes happen, like, to guys, like, you come without – it didn’t work. You know, like, don’t get up.
Q262Did you touch her vagina at all?

A261 SHERO: Yeah, I touch.

Q263 Yes?
A263 SHERO: Because she was touching too.

Q264 How did you touch her?
A264SHERO: Well, like, I don’t know. Like you are female, like with your boyfriend, you know, like, how - - -
Q265Yes, but it’s different for everybody and that’s why I am asking you to tell me what part of your fingers you used to touch what part of her vagina and what you did with them?
A265SHERO: Like this one when I just touch her but, you know, didn’t, like - - -
Q266Put it in, is that what you’re indicating?
A266SHERO: No, no, just there. Like, outside her – like, when I touched her like that, I touch her too as well, but straight away I come.
Q267Okay. So, correct me if I am wrong. I am trying to understand from what you’re just gesturing and indicating that you touched her vagina but you didn’t put your fingers inside her?
A267SHERO: No.
Q268Is that right or have I misunderstood you?
A268SHERO: Yeah, yeah. Yeah, that’s right. I touch her but I don’t put no finger in.
Q269Did you touch her over or under here underwear?
A269SHERO: Well, she didn’t take the underwear off. But - - -
Q270So, were your fingers in contact with her skin?
A270SHERO: Yeah, yeah, contact yeah.

Mr Shero said the complainant was crying as they left his house, but then in the car on the way back to Civic she was “dancing” all the way.

Mr Shero told police that the complainant had driven his car “from the traffic lights” to his house, but said he had not asked for her phone number or given her his number.

Mr Hameed’s statement

Constable Hinton said that Mohamad Hameed had given a statement to police to the effect that he had been present in Mr Shero’s home on the night in question. Constable Hinton confirmed the relevant parts of that statement in evidence. Those parts of the statement were as follows:

Between 8:30pm and 10:30pm, on Saturday 6 June 2009, my girlfriend, Tanya STEFSKI, and I returned home from the city. At that time, Marco was not at home.
Between about 3:00am and 4:00am, on Sunday 7 June 2009, I was asleep in my bedroom, with Tanya, when I heard someone who I thought to be Marco trying to unlock the door with some keys. It sounded as if he was having difficulty, and a short time later I heard someone knocking on the door.

As a result of the knocking, I got out of bed and opened the front door. I saw Marco and a female, with blonde hair, about 160cm tall, who was dressed in a white coloured outfit. It was dark so I couldn’t see that well. The female person said “Hello” to me and then I responded “Hi” and continued on my way back to bed.
I could hear the female and Marco talking in Marco’s room for about five to six minutes. A short time later, I heard Marco say words to the effect of “Okay, you want to go home? I take you home” in a loud voice. A short time after that, I heard Marco and the female leave the premises.

Constable Hinton confirmed that at no point did Mr Hameed indicate to her that he’d heard screaming or yelling from the female.

Evidence relating to drugs

Constable Hinton gave evidence that neither red pills nor cocaine had been found in Mr Shero’s house.

Certificates from the ACT Government Analytical Laboratory (ACTGAL) were in evidence showing that the six pink tablets found in Mr Shero’s bedroom contained methylamphetamine and traces of pseudoephedrine and ephedrine, but that no drugs were found on the square white plate.

Another ACTGAL certificate showed that analysis of the complainant’s urine sample showed cocaine and pseudoephedrine.

Carly Purcell

Detective Senior Constable Purcell was assigned to the Sexual Assault and Child Abuse Team. She met Constable Hinton at the Winchester Police Centre and took part in the conversation with the complainant when she reported the alleged rape.

DSC Purcell gave evidence that the medical examination of the complainant had been postponed because the doctor who was contacted to conduct it (a Dr Trennovan) had said that the complainant might not be able to consent to a medical examination after consuming alcohol and drugs as she had reported to police. DSC Purcell said that in her initial conversation with the complainant, the complainant said that she had taken an Ecstasy tablet earlier in the evening and had had cocaine at Mr Shero’s home.

DSC Purcell said that if the complainant had told her that she had taken possession of two red pills from Mr Shero’s room, she would have asked her where they were, and could not recall asking where such pills were.

DSC Purcell said that Mr Shero had consented to a forensic procedure, the conduct of which was recorded. The transcript was in evidence. She noted that English is Mr Shero’s third language after Kurdish and Arabic.

CCTV footage – inside and outside the nightclub

Ten different pieces of CCTV footage obtained from the ICBM nightclub were in evidence. Few of them had timestamps, which meant that there was no evidence of the total elapsed time between when the complainant and Mr Shero were introduced and their departure for Mr Shero’s home. None of the footage was of particularly good quality. However, it was possible to make certain observations.

The footage included several segments showing the complainant in a group including Mr Shero in the smoking area of the nightclub. In the period covered by these segments, the complainant can be observed standing alone near a barrel watching other members of the group. Mr Shero approaches the complainant, they appear to speak to each other, Mr Shero puts his arm around the complainant and then they appear to hug each other. The complainant and Mr Shero then separately approach a person who was identified during evidence as Ms Baxter, then move back to their earlier positions, and the complainant then stands immediately in front of Mr Shero.

There is further footage showing the complainant standing immediately in front of Mr Shero with her back to him. Mr Shero appears to have his arms around the complainant’s waist, and she appears to be moving against his body.

Another segment of footage shows the complainant leaning back against Mr Shero, moving slightly forward followed by Mr Shero and then moving back towards Mr Shero. The complainant moves forward to speak to Ms Baxter and Mr Loulanting, leaving Mr Shero alone. He speaks to several other people until after 60 seconds (according to the CCTV timing) the complainant again backs towards Mr Shero. Shortly afterwards, the complainant and Mr Shero leave the area holding hands, with Mr Shero leading the way.

Another segment shows the complainant and Mr Shero walking through another part of the nightclub; the complainant has her arm over Mr Shero’s shoulder, and Mr Shero has his arm around the complainant’s waist. The complainant conceded in evidence that this showed her and Mr Shero on their way out of the club.

A further segment of footage appears to show the complainant and another woman approaching ICBM within the colonnaded area immediately outside ICBM, then moving to the footpath and walking along the edge of the footpath closest to the road. It is only possible in this segment to identify the complainant by reference to the fairly distinctive skirt (part of the Little Bo Peep outfit) that she was wearing in the earlier footage.

Cross-examined about the footage showing her interactions with Mr Shero:

(a)The complainant asserted that Mr Shero put his arm around her because she had complained about being cold (she identified this as part of her small talk).
(b)The complainant denied that when she was standing immediately in front of Mr Shero she was squeezing him, rubbing herself against him, or “grinding” him, which she agreed she understood to mean “rubbing yourself against somebody else for their sexual pleasure”; she asserted that she was merely dancing with her body touching Mr Shero.
(c)The complainant agreed that at one point she appeared to lean into Mr Shero’s embrace, but denied this was because she found him sexually attractive.
(d)The complainant conceded that the footage showed her and Mr Shero walking through the club with their arms around each other, but pointed out that she was shown at the end of the footage putting her arm down, so that they did not actually leave ICBM with their arms around each other. My own observation is that the footage appears to show them walking into a crowded area where it may not have been feasible to continue walking side by side, but the footage of the complainant and Mr Shero with arms around each other speaks for itself, and the complainant dropping her arm at the end of the segment does not detract from the effect of that earlier footage.
(e)The complainant repeatedly denied that at any point captured on the CCTV footage she and Mr Shero had discussed drugs.

The CCTV footage is not clear enough to enable me to distinguish whether the complainant was “grinding” Mr Shero as put by his counsel, or merely “dancing with her body touching” Mr Shero as explained by the complainant (assuming these actions are in fact distinguishable by anything other than the person’s intention). However, I do not need to reach any conclusion about that particular issue to be satisfied that, despite the complainant’s efforts to explain it away, the CCTV footage shows an ongoing, significantly physical, and apparently affectionate interaction between the complainant and Mr Shero. The impression given by the CCTV footage significantly undermines the complainant’s claims that she was, at best, being friendly to Mr Shero rather than affectionate, and was certainly not sexually attracted to him.

Consideration

Prosecution submissions

The prosecutor’s submissions were notable for their focus on attempts to explain why an absence of evidence for any particular part of the Crown case should not be seen as damaging that case. In the end, the Crown case appeared to rely almost entirely on the complainant’s evidence, which I was urged to accept as credible despite the fact that there were notable gaps in her evidence, very little independent evidence in support of her version of events, and various pieces of evidence that were inconsistent with her evidence but consistent with evidence given, or claims made, by others. These matters are considered in more detail at [159] to [169] below.

Consciousness of guilt

The prosecutor in closing submissions did not place any particular weight on the claim, outlined in her opening remarks, that Ms Sunderland’s evidence that her Facebook approach to the complainant was made at Mr Shero’s instigation showed a consciousness of guilt on Mr Shero’s part.

Ms Sunderland admitted that she had lied to various people, including both the complainant and Mr Shero, as well as Mr Shero’s solicitors. Although there is objective evidence of her contact with the complainant (including of her false claim that she was in the next room while the complainant was with Mr Shero at his home), this is not enough to give credence to Ms Sunderland’s assertion that Mr Shero had asked her to try to extract a retraction from the complainant; it is equally consistent with, for instance, Ms Sunderland believing that she might obtain a benefit from Mr Shero if she could do so.

In R v Rao [2008] ACTSC 17, Gray J said that a consciousness of guilt has to be the only rational explanation for the relevant conduct, noting at [62] that:

if there are other explanations for the accused's conduct upon which the prosecution seeks to rely and that conduct is reasonably explicable upon that other basis, then the accused is not to have that conduct held against him.

Even if I could be satisfied that Mr Shero had instigated Ms Sunderland’s attempt, I could not be satisfied that this necessarily showed a consciousness of guilt rather than a not unreasonable belief on Mr Shero’s part that the allegations made by the complainant would be difficult to defend, and would take a long time to be resolved through the courts even if in the end he was successful in defending the charges.

Matters not in dispute

Many of the events of the evening of 6 June 2009 and the early morning of the following day are not in dispute. The complainant attended her birthday party in the evening and drank quite a lot of alcohol. Around midnight, she went to Civic, where she visited several nightclubs. At some stage in the morning, she was introduced to Mr Shero, and went with him to his home in Bruce. At Mr Shero’s home there was some kind of sexual activity, after which Mr Shero drove the complainant back to Civic where she met her friend Ms Parker. Ms Parker took the complainant back to the birthday party venue, from where the complainant’s mother picked her up and took her first to Calvary Hospital and then to the Winchester Police Centre, where the complainant alleged that Mr Shero had raped her.

Other matters emerged from unchallenged forensic evidence. A urine sample provided by the complainant at the Winchester Police Centre was positive for cocaine and pseudoephedrine. Semen which DNA analysis strongly suggested was Mr Shero’s was found on his bed sheets and on the underpants the complainant had been wearing on the night in question.

Gaps in the prosecution case

As mentioned, there were various gaps in the prosecution case.

The complainant was not able to give any explanation of where her underwear was or whether it was removed during the alleged penetration by Mr Shero, or any evidence about how Mr Shero had dealt with his own pants.

The urinalysis evidence of the complainant’s cocaine use at some stage in the evening did support the complainant’s evidence that she had used cocaine but, contrary to the prosecutor’s submission, it did not support her claim that Mr Shero had provided it, and neither the search of Mr Shero’s home nor any other evidence available gave any support to that claim.

No trace of cocaine was found in Mr Shero’s unit, and nor were red pills or a $5 note which the complainant claimed were with the cocaine when Mr Shero produced it. The complainant’s claim that she had removed the two red pills and the $5 note was not recorded, nor recalled in evidence, by investigating police, and was not made in the complainant’s evidence in chief, but was made only in cross-examination when counsel put to her that there were no red pills. Her claim that before arriving at the Winchester Police Centre she had lost or discarded both the red pills (which she said she had put in her bra) and the $5 note, as to which she could not remember where she had initially secreted it, was also unconvincing, especially given her very defensive responses to cross-examination on this issue.

The fact that pink pills containing methylamphetamine and pseudoephedrine were found in the pocket of Mr Shero’s jeans in his room does not establish that the complainant went to Mr Shero’s home in the expectation of being given drugs. Furthermore, although the complainant’s urine did contain pseudoephedrine, it was no part of the Crown’s case that the complainant had ingested either the red pills she claimed were on the plate with the cocaine or pink pills of the kind found in Mr Shero’s jeans – rather, the complainant strenuously denied having taken any pills at Mr Shero’s home or afterwards.

Nor was there any evidence in support of the complainant’s claim that Ms Baxter had told her to go with Mr Shero for drugs.

Support for Mr Shero’s version of events

On the other hand, there are various points at which the evidence of other witnesses appears to support Mr Shero’s version of events as told to police during the execution of the search warrant. Of course, Mr Shero is not required to prove his innocence, but support for what he told police tends to undermine the complainant’s evidence where it conflicts with Mr Shero’s claims.

The CCTV evidence was consistent with evidence given by Ms Baxter and Mr Loulanting, and with Mr Shero’s claims, but was not easy to reconcile with the complainant’s evidence, despite her efforts to interpret it to that effect.

Mr Shero told police there had been kissing on his bed, and the complainant told Dr Tyson that there was oral contact with her neck; this was supported by DNA analysis of the dry swab of the complainant’s neck. However, the complainant’s account at trial of events in Mr Shero’s room did not allow for any kissing; the evidence of oral contact with her neck did not match her evidence of being pushed roughly onto the bed and immediately penetrated, twice, as soon as she came out of the toilet.

The forensic evidence suggested that Mr Shero had ejaculated, which he admitted but the complainant denied. Defence counsel said that the locations of the semen stains on the complainant’s underpants are consistent with Mr Shero’s claim that he ejaculated on the bed. Certainly they lend no particular support to the prosecution case that Mr Shero ejaculated as or after he withdrew his penis from the complainant’s vagina. The complainant could easily have sat in the ejaculate as she got off Mr Shero’s bed, which would explain the semen on the outer back of her pants. Semen might have got onto the “inner back, mid-leg” area either if the leg of the pants folded back as she moved across the bed or when the pants were seized and put into the police exhibit bag, and semen might also have found its way onto the inner front of the pants (to the side of the crotch area) through contact with semen elsewhere on the pants.

Mr Shero’s claim to police that the complainant was confused when she left Mr Shero’s home, and didn’t know where she was, was consistent with Ms Parker’s description of the complainant’s initial phone call to her.

Evidence as to the complainant’s use of drugs

I do not need to resolve the question of what was on the complainant’s tongue in the Facebook photograph, or of where or how the complainant ingested the cocaine and pseudoephedrine found in her urine sample. Whether the item on the complainant’s tongue was a tongue ring or an illicit drug is irrelevant given the unchallenged forensic evidence of her drug use. That unchallenged drug use, however, is relevant as an explanation of what might seem, on the basis of Mr Shero’s claims to police officers but also the evidence of the complainant’s friends Ms Baxter and Mr Loulanting, to be unexplained mood swings during the evening.

The complainant’s mother also gave evidence that, while not describing mood swings as such, certainly seemed to be describing an unusually excited or animated mood on the complainant’s part at the point when her parents drove her to Civic, possibly the “heightened sense of being” or “sense of well-being” described by Dr Tyson as common effects of cocaine.

The fundamental issue

The fundamental issue in dispute in this trial is the nature and circumstances of the sexual encounter between the complainant and Mr Shero. Other evidence is relevant only to the extent to which it raises issues about the credibility of particular witnesses or other pieces of evidence, or suggests possible interpretations of other behaviour.

The complainant says, in general terms, that in Mr Shero’s bedroom, she was pushed onto the bed and Mr Shero put first his finger or fingers, and then his penis, into her vagina. She had yelled, screamed and pushed him off, after which he stopped and agreed to take her back to Civic.

Mr Shero told investigating police that he and the complainant lay on the bed kissing and touching each other, and that he had ejaculated shortly afterwards on his sheet. At some point, the complainant had become upset and Mr Shero had agreed to take her back to Civic.

Thus, the questions are:

(a)Did Mr Shero put his fingers or his penis into the complainant’s vagina while they were in his bedroom?
(b)If he did either of those things, did the complainant consent?
(c)If the complainant did not consent to whatever admittedly brief sexual activity took place, did Mr Shero know she was not consenting or was he reckless about her consent?

The only direct evidence of sexual intercourse came from the complainant’s own evidence. Mr Shero had told police that there had been sexual activity but no penetration. The forensic evidence is consistent with Mr Shero’s version of events, but the complainant’s evidence does not receive any positive support from any forensic evidence, or from the evidence of Ms Stefszky, who was with Mr Shero’s housemate Mr Hameed while the complainant was in Mr Shero’s bedroom or bathroom.

The complainant’s own evidence is less than convincing, given her inability to provide any details of the assault or its mechanics, including matters such as where her underwear was or whether it was removed and whether Mr Shero had taken his pants down.

The complainant’s assertions about the nature of her interaction with Mr Shero in ICBM were inconsistent with Mr Shero’s claims made to police when they searched his unit, and with Ms Baxter’s evidence. Although the prosecutor submitted I should give little or no weight to Ms Baxter’s evidence, no effort was made to discredit that evidence, which in relevant respects was consistent with the ICBM CCTV footage; Ms Baxter’s evidence that she was no longer friendly with the complainant, and Mr Shero’s report of Ms Baxter’s reference to the complainant as a slut (at [125]) may have raised an issue about Ms Baxter’s objectivity but did not seem to go to her credit. More importantly, the complainant’s assertions themselves were at odds with the CCTV footage from ICBM, and the complainant’s repeated attempts to “re-interpret” the CCTV footage were quite unconvincing.

I note also the unchallenged evidence that Mr Shero drove the complainant back to Civic immediately after she asked him to do so and then escorted her back to ICBM to meet her friends; this does not exclude guilt but may suggest no immediate consciousness of guilt.

Finally, while there are no doubt many things that I do not understand about the behaviours of young people, especially in the context of alcohol and drug use, I find surprising the complainant’s claim that, while still sober enough to be in control of herself, she went home with a man she had only just met in the expectation of getting some “pills”, and that she did this despite having had virtually no conversation with the man in general and no conversation at all about the possibility of him providing pills or other drugs.

This does not mean that the complainant’s claim of sexual intercourse without consent is not true. What it does mean is that I cannot help but have what I consider to be a reasonable doubt about the complainant’s version of events, having regard to the absence of evidence supporting her version of events, my doubts about her credibility, the wealth of evidence raising doubts about particular aspects of her story, and the existence of at least one other possible scenario, being that the complainant had taken cocaine at some earlier stage of the evening, that she had gone home with Mr Shero on the basis of some kind of sexual interest (possibly but not necessarily drug-induced), but that at his home she had suddenly lost interest in sexual activity (whether as a result of some kind of sobering-up or otherwise) and demanded to be taken back to Civic. I note that such a scenario does not require that the complainant has deliberately lied about what really happened, only that the combination of alcohol, cocaine, and whatever she had consumed that left traces of pseudoephedrine in her urine may among other things have affected her perception or recollection of events.

If I accepted the complainant’s evidence about going home with Mr Shero because someone else, not Mr Shero, had told her that Mr Shero would provide her, apparently free of charge, with unspecified drugs, it might also be possible to accept that the complainant’s actions as shown in the CCTV footage were motivated solely by platonic friendliness or gratitude for that anticipated supply of drugs. However, this would not matter. Whatever was really in the complainant’s mind, it is clear to me that her behaviour towards Mr Shero, as captured on the CCTV footage, could easily have given him the impression that she was interested in him as a sexual partner. That possibility, coupled with the complainant’s own evidence that Mr Shero abandoned his sexual advances within 15 seconds when she resisted, would exclude a finding beyond reasonable doubt that Mr Shero had engaged in sexual intercourse with the complainant knowing that she did not consent or being reckless as to whether she was consenting.

In summary:

(a)I am not satisfied beyond reasonable doubt that there was sexual activity as the complainant described it;
(b)I am not satisfied beyond reasonable doubt that the complainant did not consent to whatever sexual activity there was; and
(c)I am not satisfied beyond reasonable doubt that, if the complainant was not consenting to whatever sexual activity there was, or if any ostensible consent was affected by alcohol or drug use, Mr Shero knew that the complainant had not given a real consent or was reckless about whether she was consenting.

There will be verdicts of not guilty on both counts.

Other matters

Non-specific evidence

Defence counsel commented on the frequency with which the complainant’s evidence relied on “whatever” instead of providing real information. I agree that this is a “troubling feature” of her evidence and to some extent of the evidence of some other witnesses. I further note, however, that it is a feature that is not confined to this trial, but also that it is not necessarily a feature beyond the capacity of counsel to grapple with.

Claim of “sloppy” forensic work

I note defence counsel’s claim in his submissions that the mistake made by the forensic analysts about the front and back of the complainant’s underpants (at [112] above) showed sloppy forensic work, and reject that description given the particular difficulties caused by the design of the pants. However, I do note that, if the failure to check the layout of the pants properly was at all influenced by the expectation that semen was more likely to be found on the front than on the back, then that would represent sloppy work of a dangerous kind.

Findings

I find that:

(a)on Count 1, that on 7 June 2009 Soran Shero engaged in sexual intercourse with the complainant without the complainant’s consent and being reckless as to whether she had consented – Mr Shero is not guilty; and
(b)on Count 2, that on 7 June 2009 Soran Shero engaged in sexual intercourse with the complainant without the complainant’s consent and being reckless as to whether she had consented – Mr Shero is not guilty.
I certify that the preceding one hundred and eighty-seven (187) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate: Sameena Ahmad
Date: 1 March 2013

Counsel for the Crown:  Ms S McMurray
Solicitor for the Crown:  ACT Director of Public Prosecutions
Counsel for the Defendant:  Mr S Gill
Solicitor for the Defendant: Legal Aid ACT
Date of hearing:  6, 7, 8, 9, 10 June 2011
Date of judgment:  1 March 2013

Appendix A – Directions for a judge-alone trial

General directions

The general directions that I gave myself for the purposes of Mr Shero’s trial are set out below.

The prosecution has brought this charge and the prosecution bears the burden of proving it. Guilt must be proven. The accused does not have to prove innocence. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his innocence. He is entitled to be presumed innocent of any charge until his guilt has been proven to the standard of proof that the law requires, namely beyond reasonable doubt. To prove guilt, the burden of proof rests upon the prosecution to prove each and every element or ingredient of the offence charged beyond reasonable doubt.

It is not enough for the prosecution to persuade me that the accused is probably guilty or even that he is very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events, and the prosecution does not have to do so.

If the accused offers or suggests an explanation which is consistent with his innocence, he is not required to prove that explanation. It is for the prosecution to disprove the explanation, or show that it is irrelevant; if the prosecution does not do so, the prosecution has not proved its case to the required standard of proof.

In deciding what evidence I accept and what evidence I reject, I may take account of all manner of things, including what a witness had to say; the manner in which the witness said it; and the general impression which the witness made upon me when giving evidence. I am not obliged to accept the whole of a witness’s evidence. I may, if I think fit, accept part and reject part of the same witness’s evidence.

Noting that the accused has not given any explanation by himself giving, or by calling, evidence in response to the prosecution’s case, I reminded myself that the accused bears no onus, and that although the accused may give or call evidence in relation to the whole or any part of the prosecution’s case, he may equally choose not to give or call any evidence in that regard; he is entitled to say nothing and make the prosecution prove his guilt. I remind myself that the accused’s silence in court and the accused’s choice not to call evidence cannot be used against him, and constitute no admission by him, and that no such inference must be drawn from that silence and that choice. As well, I may not use the accused’s silence to fill gaps in the evidence tendered by the prosecution, or as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt. Nor may I speculate about what might have been said in evidence if the accused had himself given evidence, or what might have been said by any other person who might have been called by the accused as a witness in the trial.

There is no need for the verdicts on the two counts to be the same. Each count must be considered separately in the light of the evidence that applies to it.

Other directions and warnings

Evidence given from remote location

Subsection 43 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) requires that, unless the court otherwise orders, evidence given by a complainant in a sexual offence proceeding must be given by audiovisual link from a place other than the courtroom, if such an audiovisual link is available. There was no request that I order otherwise, and the evidence was accordingly given by the complainant by audiovisual link from a place other than the courtroom.

Section 46 of the Evidence (Miscellaneous Provisions) Act requires a jury to be warned that an inference adverse to an accused should not be drawn from the fact that a witness is giving evidence from another place, so I give myself an equivalent warning.

Reliability of the complainant’s evidence

At the request of counsel for the defence, I warned myself that the complainant’s evidence might be unreliable given the evidence from several witnesses, including the complainant herself, suggesting that at the time of the events concerned she was affected by alcohol and one or more illicit drugs (s 165, Evidence Act 1995 (Cth)).