The State of Western Australia v BLB

[2020] WADC 124

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CRIMINAL

LOCATION:   PERTH

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BLB [2020] WADC 124

CORAM:   BARONE DCJ

HEARD:   30 JUNE - 3 JULY & 31 JULY 2020

DELIVERED          :   1 SEPTEMBER 2020

PUBLISHED           :   9 SEPTEMBER 2020

FILE NO/S:   IND 986 of 2019

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND

BLB

Catchwords:

Criminal law - Trial of the issues - Sexual penetration without consent, child over 13 years old and under 16 years old

Legislation:

Criminal Code

Result:

The offender to be sentenced on the basis that:

• The sexual encounter was not a sustained, forceful and, at times violent, encounter in which the complainant was an unwilling participant.
• The complainant was not the instigator of the sexual encounter.
• The offender did not have an honest but mistaken belief that the complainant was too intoxicated to give consent.
• The offender was not positively of the belief that the complainant was over 16 years of age. 

Representation:

Counsel:

The State of Western Australia	:	Mr A Dungey
Accused	:	Ms H Prince

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Helen Prince

Case(s) referred to in decision(s):

Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19

Eades v The Queen [2001] WASCA 329

Edwards v The Queen (1993) 178 CLR 193

Law v The State of Western Australia [2009] WASCA 193

R v Flannery [1969] VR 586

R v Olbrich [1999] HCA 54; (1999) 199 CLR 270

R v Storey [1998] 1 VR 359

The State of Western Australia v SJH [2010] WASCA 40

The State of Western Australia v Thompson [2014] WASCA 108

Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234

BARONE DCJ:

Introduction

1. On 3 February 2020 BLB pleaded guilty before his Honour Chief Judge Sleight to a three count indictment dated 25 July 2019 that pleads that:

   (a)Count 1:  On or about 8 December 2017 at Joondalup [he] sexually penetrated TAS (the complainant), without her consent by penetrating her vagina with his penis, in circumstances of aggravation, namely, that TAS was of or over the age of 13 years and under the age of 16 years.

   (b)Count 2:  On the same date and at the same place [he] sexually penetrated TAS (the complainant), without her consent by introducing his penis into her mouth, in circumstances of aggravation, namely, that TAS was of or over the age of 13 years and under the age of 16 years, and

   (c)Count 3: On the same date and at the same place [he] sexually penetrated TAS (the complainant), without her consent by again penetrating her vagina with his penis, in circumstances of aggravation, namely, that TAS was of or over the age of 13 years and under the age of 16 years.

2. Judgments of conviction were entered in relation to each count on the indictment on 3 February 2020.

3. At the time that BLB entered his plea of guilty Ms Prince, BLB's counsel informed the court that there was a dispute between the State and the offender as to the circumstances of the offending.  The difference was explained to be that the defence says that BLB honestly, but mistakenly believed the complainant was consenting but accepted that that belief was not reasonable given the level of intoxication of both BLB and the complainant, and because of BLB's intellectual disability.

4. Mr Dungey indicated to the court that the State's position was that on the complainant's account, BLB could not possibly have been mistaken about consent.  This position was said to be fortified by the Sexual Assault Resource Centre (SARC) medical report which shows a number of injuries.

5. The matter was therefore adjourned to a trial of issues.

6. The trial of issues took place before me between 30 June 2020 and 3 July 2020.

7. At the commencement of the hearing the State prosecutor, Mr Dungey, read the State's statement of the facts of the offence.  The facts as read were as follows:[1]

   [1] ts 46 - ts 47.  

   The complainant was 14 years of age and had not previously met the offender.

   On the evening of Friday, 8 December 2017, the victim left her home in Currambine for the purpose of meeting up with her boyfriend, [WB], at Turtle Pond in Memorial Park, situated in Grand Boulevard, Joondalup, a place where she says young people are accustomed to gather on a Friday night.

   After arriving at Memorial Park, the victim consumed alcohol while socialising with her friends over a period of some hours.  At about 10.30 or 11 pm, her boyfriend left, asking her to accompany him [sic] but the victim did not want to leave as she was 'too drunk to go home' to her parents.

   At around this time, the offender, who was aged 20, arrived at the park in company with other similarly older males and introduced himself to the victim, saying that his name was Jason.

   Later during the evening, the victim and the offender walked towards Joondalup Railway Station.  After arriving at the station, the offender convinced the victim that it would be better if he walked her home.

   The victim asked where they were going and the offender gave different explanations, including that they were going to see his kids or inviting her back to his house where he said he would pay her money.  The victim asked if they could walk back to the railway station but he did not do so.

   Whilst they were walking in the vicinity of Lake Joondalup Baptist College, the offender pushed the victim to the ground in a bush area and subjected the victim to a sustained sexual assault against her will.  In the course of the assault, the victim was crying.  She said that she had a boyfriend and that she was only 14.

   The offender pulled the victim's long pants and underpants down below her knees and then her crop top up before forcing his erect penis into her vagina where he continued penetrating her for a period of time.

   Throughout this incident, the victim repeatedly told the offender to stop.  On several occasions, the victim tried to get up to prevent the offender from continuing to penetrate her.  The offender continued pushing the victim back to the ground.

   The offender removed his penis from the victim's vagina and inserted it into her mouth, forcing the victim to perform fellatio on him.  The offender reinserted his erect penis into the victim's vagina and commenced having sexual intercourse with the victim against her will.

   After a period of time, the offender allowed the victim to get up.  He said that he wanted to date her in secret.  She pretended to agree to this and let him write his telephone number down in her iPod.  She then walked back to the Joondalup Railway Station and the offender accompanied her.  There she saw several friends and transit guards to whom she complained that she had been raped.

   On Friday, 9 December 2017, the offender was arrested on suspicion and directed to undergo an intimate forensic examination.

   On 22 December 2017, the offender was again arrested on suspicion, voluntarily took part in an electronically recorded interview with investigators where he denied having sex with the victim.  On Friday, 8 June 2018, the offender was arrested and charged. 

8. Having heard the State's statement of the facts of the offence, Ms Prince who appeared for the offender then informed me that the two areas in dispute were:[2]

   1.The sexual contact between them was in fact commenced by the complainant; and

   2.Although the complainant was too drunk to consent and that BLB knew she was too drunk to in fact consent, he was honestly and mistakenly, but not reasonably, of the belief that she was consenting.

   [2] ts 48. 

9. In respect of the State's statement of material facts, Ms Prince indicated:

   (a)BLB denies saying his name was Jason.  It was agreed by both the defence and the State that this alone was not an issue that would affect sentence.[3]

   (b)BLB denies that the complainant asked where they were going.[4]  Further, BLB denies giving various explanations that he was going to see the kids, inviting her back to his house.[5]

   (c)BLB denies saying that he would pay the complainant money.[6]

   (d)BLB denies pushing the complainant and subjecting her to a sustained sexual assault against her will.[7]

   (e)BLB denies continuing to push the complainant back onto the ground, denying that he assaulted her in any way other than by way of committing the offences.[8]

   (f)BLB says that the vaginal penetration (in respect of both counts 1 and 3) involved the rubbing of his penis between the lips of the complainant's vagina.[9]

   (g)BLB denies saying that he wanted to date the complainant.  BLB says that he gave the complainant his telephone number should she need to talk about her family problems.[10]

   [3] ts 50. 

   [4] ts 50. 

   [5] ts 50. 

   [6] ts 50. 

   [7] ts 51. 

   [8] ts 52. 

   [9] ts 52. 

   [10] ts 52. 

10. Following my enquiry on the start of the trial of the issues, Ms Prince indicated that whether or not BLB had a positive belief as the complainant's age was not a matter for the trial of the issues.  At that time, Ms Prince expressly eschewed any reliance upon a matter in mitigation that BLB had a positive belief the complainant was over 16 years.[11]

    [11] ts 49. 

11. Following this indication, Mr Dungey indicated that the State would be leading from the complainant evidence of additional matters relevant to the issues in dispute.  The State had prepared the statement of material facts based on the complainant's specialist child interview conducted approximately 10 days after the event.  As the complainant was to give evidence, the State expected the complainant to give additional evidence in accordance with what she reported to the SARC that BLB:

    (a)digitally penetrated her;

    (b)touched her breasts;

    (c)put his hands around her neck (which she interpreted as him trying to choke her);

    (d)tried to cover her mouth to stop her from screaming;

    (e)did not use a condom; and

    (f)as a result, she experienced pain in her vagina and could not walk.

12. Accordingly the State would be inviting the court to make factual findings as to matters that were not included in the statement of material facts but may arise during the course of the complainant giving evidence.  These were said to be facts that would be relevant to fact finding in respect of the counts on the indictment. 

13. The State confirmed that no further charges were to be added to the indictment and specifically indicated 'we're certainly not going to be asking Your Honour to deal with this offender more harshly because of any other acts not the subject of any charge'.

14. As the matter proceeded Ms Prince indicated that the offender would be asserting that as a matter of subjective belief, he was positively of the belief that the complainant was over 16 years of age.[12]

    [12] ts 131. 

15. On 31 July 2020 I clarified with the parties the issues for consideration in the trial of the issues.  Ms Prince confirmed that:

    (a)There is substantial factual dispute between the parties relating to the sexual conduct that can be shortly summarised as the State alleging that the sexual encounter was a sustained forceful, (and at times violent) encounter in which the complainant was an unwilling participant, and the defence asserting that the complainant was the instigator of the sexual encounter that involved no force or overcoming of resistance.

    (b)The offender asserts that he had an honest but mistaken belief, which was not reasonable, as to whether the complainant was too intoxicated to consent to sex.

16. Mr Dungey clarified that the State, in addition to alleging that the complainant was not consenting given the forceful unwilling nature of the sexual encounter, also alleges that the complainant was so intoxicated that she was not capable of consenting in any event. 

The legal principles - burden and onus of proof in sentencing

1. Since R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [25] it is well settled that for the purposes of sentencing, the prosecution bears the onus of proving any aggravating factor beyond reasonable doubt, and that an offender bears the onus of proving any mitigating factor on the balance of probabilities (see also Law v The State of Western Australia [2009] WASCA 193 [29] - [30] Buss JA).

2. In Law v The State of Western Australia, Buss JA also noted that whilst a plea of guilty negatives all defences, 'it does not necessarily constitute an admission of all of the facts relied upon by the State for the purposes of sentencing'.[13]  Furthermore, noting R v Storey [1998] 1 VR 359, 371, Buss JA noted that:[14]

   the distinction between aggravating and mitigating circumstances, for sentencing purposes, may sometimes be unclear or even, on occasions, ambiguous.  The essential point of distinction is whether, in a particular case, a fact or circumstance is likely to result in a more severe or less severe sentence than would otherwise be the case.

   [13] Law [27].

   [14] Law [28].

3. Where disputed facts are raised in a trial of issues, if a sentencing judge is not persuaded of the existence of a particular fact or circumstance, whether mitigating or aggravating, the absence of that fact does not mean that the converse fact is proved.  In such circumstances the fact simply does not exist for the purposes of sentencing.[15]

   [15] Law [34] (Buss JA).

4. The State accepts that it bears the burden of proving beyond reasonable doubt that the sexual encounter was a sustained forceful, (and at times violent) encounter in which the complainant was an unwilling participant.  If I find that the sexual penetration occurred forcefully and unwillingly without the complainant's free and voluntary consent, that finding would aggravate the seriousness of the offender's conduct in committing the offence: see generally R v Olbrich; Law; The State of Western Australia v SJH [2010] WASCA 40 [69]; The State of Western Australia v Thompson [2014] WASCA 108 [25] - [26].

5. The offender submits that not only was the complainant a willing participant to the sexual penetration, but in fact, she initiated it.  In addition, the offender submits that at the time of the offence he honestly, but unreasonably, mistakenly believed that the complainant was not too intoxicated to consent to sexual penetration.  The offender also submits that at the time of the offence he believed that the complainant was over 16 years of age.  In order for the offender to rely upon these facts as being mitigatory, he bears the onus of proof on the balance of probabilities.[16]

   [16] R v Olbrich; Law [33].

The evidence

1. The State called the complainant, TAS, on the trial of the issues.  Her evidence was comprised of a visually recorded interview conducted with her on 19 December 2017 which was played during the trial of the issues.  This evidence was supplemented by oral evidence given during the trial of the issues.  The DVD of the visually recorded interview was received as MFI 1.

2. By consent evidence from the following witnesses were read into evidence by the State:

   (a)WR;

   (b)ACCW;

   (c)LTS;

   (d)KDB;

   (e)GR;

   (f)Bradley Wayne Lamers, transit officer;

   (g)Joseph Neil Dainty, a police officer;

   (h)Troy Marc Baker, a police officer.

3. Also read into evidence was a statement of agreed facts in relation to what BLB told the Police.  The agreed facts were: 

   The offender was interviewed by Detective Paul McGinely and Detective Acting Sergeant Chantal Killen at 9.05am on 22 December 2017 in the presence of the Teem Treasure Coordinator Jodi Reeves.  The offender was asked where he went, not last Friday but the Friday before that.  He said that he met friends at the Joondalup Train Station, and then walked to a pub, the old Bailey, and a club, the Arcade, where he spent the night drinking. 

   He said that he walked with his friends back to the train station.  It would have been about 2-ish when he got there.  His train was going to be another 45 minutes so he walked home.

   He said he was wearing some light blue jeans, and an orange Reebok top.  When he got home, he had a drink of water and went to bed.  That night the police came, woke him up, and said he was under arrest for suspicion of sexual assault.

   He was shown a photo of the complainant.  He was asked if he recognised her.  He said no.  He was asked if he had ever spoken to her.  He said no.  He was asked if he had met her on the Friday night that the Police were talking about.  He said no.  He was asked if he had ever seen her before.  He said no.

4. At the time that the agreed facts were read the State indicated that these facts were relevant to an assessment of BLB's credibility, but were also lead to show a consciousness of guilt. 

5. The State tendered a screen shot of WR's Facebook Messenger that was referred to in his evidence.  The screenshot was received as exhibit 8.[17] 

   [17] ts 142.

6. The State also tendered a diagram drawn by KDB.  The diagram was received as exhibit 9.[18]

   [18] ts 148.

7. Further, by consent the State tendered:

   (a)A Collection of Forensic Specimens Form indicating that oral rinse, vulva/penile gauze wipe, peri-anal gauze wipe, urine for biology and clothing were received by C Williams on 9 December 2017 at 4.50 am.  The form was received as exhibit 10.[19]

   (b)The report of Dr Fancios Jacobus Oosthuzien, team leader at WAPOL Toxicology Forensic Science Laboratory, ChemCentre dated 9 February 2018 concerning samples received from the complainant.  The report was received as exhibit 11.[20]

   (c)Portions of the report of Dr Debbie Ann Smith from SARC, signed 16 May 2018.  The report was received as exhibit 12.[21]

   [19] ts 155.

   [20] ts 156.

   [21] ts 157.

8. BLB elected to give evidence.  He called one other witness, Dr Gareth Merriman to give evidence.  In addition, a report of Dr Merriman dated 29 May 2020 was tendered and became exhibit 18.[22]

   [22] ts 217.

9. BLB tendered a disk of CCTV footage containing 12 clips.  The disk was received as exhibit 6.1.  BLB's counsel, Ms Prince, produced a table entitled 'Schedule Disc Joondalup Train Station Bulk CCTV Footage' relating to exhibit 6.1.  Columns 1, 2, and 3 of that schedule containing the clip numbers, CCTV footage reference, and times were received as exhibit 6.2.[23]

   [23] ts 115.

10. BLB also tendered the following exhibits:

    (a)Numerous photographs that were received as exhibits 2, 3, 5, 7, 14, 15 and 16.

    (b)A Google map showing the Joondalup Train Station and surrounding suburbs.  The map was received as exhibit 4.[24]

    (c)Two pages of Google maps showing BLB's home and the HBF Arena which was received as exhibit 13.[25]

    (d)A screenshot from BLB's phone dated 24 December 2017 at 3.42 am was received as exhibit 17.[26]

    [24] ts 101.

    [25] ts 162.

    [26] ts 212.

The complainant

1. The complainant was born on 14 July 2003.  The complainant was approximately 14 years and 5 months old at the time of the visually recorded interview, which was conducted 11 days after the offences occurred.  At the time of giving evidence on 30 June 2020 she was approximately two weeks shy of turning 17 years old.

2. The complainant gave an account of the events during the interview.  Her account included:

   (a)That she went out on the relevant Friday night to see her boyfriend, WR.  She was hanging out with him and bunch of other people at a park.  When her boyfriend left at about 10.30 pm or 11.00 pm, he tried to get her to go home, but she did not want to because she was 'too drunk to go home'.[27]

   [27] Child witness interview (CWI) page 3.

   (b)When her boyfriend was leaving, other people came along.  They were a bunch of older guys.  One of them was called Brandon (meaning the offender, BLB) but he told her his name was Jason or something starting with a J.  That person spoke about his kids.  That was 'basically all I can remember about that'.[28]  She had never met or seen him before.[29]

   [28] CWI page 4.

   [29] CWI page 21.

   (c)In respect of what she had drunk, she said that during the evening she had a 'few cups of goon'.[30] 

   [30] CWI page 8.

   (d)When everyone started walking to the train station to go home, she walked back with BLB because he said he would 'keep me safe and stuff' because he had met her boyfriend before.[31]

   [31] CWI pages 4, 11.

   (e)She described that she was 'pretty out of it' when the offender said he was walking her home or something.  She did not even know how but she ended up at Lake Joondalup Baptist College at a park with BLB.  She described being 'like I fully was out of it the whole time we were walking there'.[32]

   [32] CWI page 4.

   (f)She recalled BLB saying they were going to see his kids, was saying stuff about giving her heaps of money, and about coming back to his house to give her thousands of dollars.  He said that his house was up near Joondalup.[33]

   [33] CWI page 5.

   (g)She said no, 'I really don't want to', trying to pull BLB's arm and asking to go back to the train station.[34]

   [34] CWI page 5.

   (h)She initially described that BLB then pushed her onto the ground and started to rape her, saying that every time she tried to get up, he kept like hitting her and pushing her onto the ground.  Her words were 'like I was completely drunk, I couldn't like defend myself even if I wanted to'.[35]  It then went on for like an hour, two hours.[36]

   [35] CWI page 5.

   [36] CWI page 6.

   (i)When asked to describe what happened when he got angry, she said 'I don't know, he didn't get like really angry, he just like - I don't - he didn't get like violent, I don't - I don't know how to explain it' and 'like he didn't like show that he was angry, I just asked "well why are we here?" And then he like pushed me on the ground'.[37]

   [37] CWI page 12.

   (j)When asked by the interviewer 'so what happened before he pushed you on the ground?' her answer was 'I don't know, I just said why are here?'  She could not describe how he pushed her to the ground.  When specifically asked she said 'I can't remember'.[38]

   [38] CWI page 12.

   (k)She described that BLB hit her every time she cried and that he kept saying about the money, the whole time, and said things including that he loved her and that he wanted her to date him.  She told him 'I'm only 14'[39] and 'I have a boyfriend'.[40]

   [39] CWI page 6.

   [40] CWI page 12.

   (l)Once they were on the ground, she said he got on top of her and kept trying to take her pants off and stuff like that.  She replied 'what are you doing? I have a boyfriend'.  He then kept saying that her boyfriend was cheating on her.[41]

   [41] CWI page 12.

   (m)She described that she 'couldn't really control him' and 'couldn't stop him what he was doing' and that he was much stronger than her.  She indicated that she 'was off it, like you know, I was pretty drunk as well'.[42]

   [42] CWI page 13.

   (n)Once he got her pants off, he raped her.[43]  She described that BLB put his penis inside her.  When asked where, she responded 'my vagina and my mouth at different stages'.[44] 

   (o)When asked to tell the police about him putting his penis in her mouth she said 'I really - I can't remember'.[45]  When pressed, she went on to describe that he put his penis in her mouth after it was in her vagina.  After being in her mouth, he put it back in her vagina.  She was not able to describe what happened next responding 'I can't remember, I don't know every detail of what happened'.  Ultimately she remarked 'that's all I remember'.[46]

   (p)When specifically asked if anything else happened, she responded 'no, I can' - I just - I finally - I just kept saying 'please stop, can we go back to the train station, I'll date you' ''.[47] 

   (q)She described that during the event he would push her back down by her shoulders.[48]

   (r)In respect of injuries, she described having 'scratches and stuff'[49] on her back and bruises over her legs and some injuries in her vagina.[50] 

   (s)At one point she got up and ran to the road to see if there were any cars, but there were none.  She had said to him that she had left her headphones and 'just got up'.  He did not get mad.  She walked back from the road and he just acted like nothing happened.[51]  Although she said 'I really can't remember.  All I remember is just running to the road, that's it'.[52]

   (t)She tried to convince him to take her back to the train station and during that time BLB wrote his number down in her iPod because he wanted to date her in secret.[53]

   (u)She described that she 'finally convinced him to get up' and stop.[54]  They walked back to the train station together, but that he kept trying to pull her back to the park again.[55]

   (v)At the train station she saw some of her boyfriend's friends.  She did not describe telling them anything, but said that they saw the look on her face and they instantly knew what happened.[56]

   (w)The first person she told about what happened was her boyfriend WR, but that he already knew some of what had happened because his friend had messaged him and told him what happened.  She also told her best friend.[57] 

   [43] CWI page 13.

   [44] CWI page 14.

   [45] CWI page 15.

   [46] CWI page 15.

   [47] CWI page 15.

   [48] CWI page 16.

   [49] CWI page 16.

   [50] CWI page 18.

   [51] CWI page 17.

   [52] CWI page 18.

   [53] CWI page 10.

   [54] CWI page 6.

   [55] CWI page 16.

   [56] CWI page 19.

   [57] CWI page 22.

The complainant's evidence on 30 June 2020

1. When giving evidence at the trial of the issues, over two and a half years after the offences, the complainant was asked by Mr Dungey if BLB put his penis anywhere else apart from in her mouth or in her vagina.  The complainant responded 'he attempted to put - anally rape me'.[58]  This was different to her account in the visually recorded interview, during which she made no mention of attempted anal penetration.

   [58] ts 67.

2. The complainant was further asked by Mr Dungey if BLB had put anything else in her vagina apart from his penis, to which she responded 'His fingers.  His hands.  That's it'.[59]  Again, this was different to her account in the visually recorded interview, during which she made no mention of digital penetration.

   [59] ts 67.

3. The complainant went on in her evidence to describe BLB having touched her breasts, neck and face.[60]  She described BLB's hands ending up on her breasts 'when he pulled [her] top up'.[61]  In her visually recorded interview she had made no mention of this, and to the contrary when asked by the police 'what happened when he pulled your top up?' she replied 'he just pulled my top up, that's - yeah'.[62]

   [60] ts 67.

   [61] ts 68.

   [62] CWI page 19.

4. When asked by Mr Dungey what BLB's hands were doing on her neck, she replied that he was trying to stop her from screaming.[63]  This happened when she was on the ground in the dirt.  She described that he used his hands to try and cover her mouth, and her face.[64]  In her visually recorded interview the complainant had made no mention of BLB's hands being around her neck or over her mouth, nor indeed of her screaming.  To the contrary her description of her actions were of her trying to placate him by saying 'yes like I love you as well'.  She described telling him that she had a boyfriend and was only 14.  At its highest, she described crying, and repeatedly saying 'no stop'.[65] 

   [63] ts 68

   [64] ts 68.

   [65] CWI page 6.

5. When asked by Mr Dungey about whether she experienced any unfamiliar pain or soreness, she described 'I couldn't walk properly.  I was so swollen from what he'd done to me'.[66]  This evidence alluded to injuries in her vagina that were of greater magnitude than 'some injuries in her vagina'.[67] 

   [66] ts 68.

   [67] CWI page 18.

6. In her evidence, the complainant positively denied initiating any intimacy or sexual behaviour with BLB.[68]  The complainant became visibly upset by the question. 

   [68] ts 68.

7. In cross-examination, the complainant said she had drunk goon on the evening of the offences.  She indicated that there was a few bags that were being shared.  She had last eaten around lunch time and described that she hardly ever drank, and would get drunk very quickly.  She agreed that she had been a bit 'staggery' on her feet that night, but that she did not fall over.[69]  She went on to describe that BLB had given her a drink of red vodka, or something, a red-coloured drink, and she had a 'little toke of weed'.  She described 'then I was out of it like'.  After that she had a few blanks in her memory, but said she could still remember what happened.[70]

   [69] ts 78.

   [70] ts 79.

8. The complainant agreed she was not getting on well with her mother at the time.[71]  She described that her mother would be angry if she turned up really drunk.[72] 

   [71] ts 80.

   [72] ts 81.

9. The complainant did not recall going to the train station with BLB before the offences occurred, and only now knew that because she had been shown footage of her at the train station.[73]  She did not have any independent memory of being there with BLB, nor did she have any recollection of him kissing her whilst they were there,[74] or walking with him arm in arm.[75]

   [73] ts 81.

   [74] ts 84.

   [75] ts 85.

10. The complainant agreed that the offences occurred just past the HBF sign in the bushes and grassed area that were depicted in photographs 17, and 21 - 24 (exhibit 3).[76]  The complainant said that it was about a 10 to 15 minute walk from the train station to that area.[77]

    [76] ts 89.

    [77] ts 91.

11. The complainant was particularly emphatic in rejecting the suggestion that she had told BLBabout her mother or her parents whilst they were at the grassed area.[78]

    [78] ts 91.

12. The complainant accepted that she had gaps in her memory, saying that they started about 10 minutes after BLB got there.  She described it as 'that's when my memory cut out',[79] later describing having 'blacked out'.[80]

    [79] ts 93.

    [80] ts 98.

13. The complainant was also emphatic in denying that she had spoken to BLB about his bad family life, other than him having told her he has two children.[81] 

    [81] ts 93 - ts 94.

14. The complainant denied crying in the bush area due to talking about her family.  She was firm in her response that she was crying because BLB 'raped me'.[82]  She was equally firm in her denials that what happened between them was consensual (as in willing).  Her words were 'it wasn't just because I was too drunk.  I was underage.  I didn't want what he did to me.  I cried for help.  I cried for my mother'.[83]

    [82] ts 94.

    [83] ts 95.

15. The complainant denied starting to behave in a sexual way to BLB.[84]  She denied that he rubbed his penis against the lips of her vagina.[85]

    [84] ts 97.

    [85] ts 98.

16. In relation to the suggestion that BLB said he would walk her back to the train station, the complainant stated that she walked back to the train station with him following her.[86] 

    [86] ts 98.

17. The complainant also denied going into a Caltex Service station on the way back to the train station.[87] 

    [87] ts 99.

18. In cross-examination, despite being pressed, the complainant maintained that:

    (a)BLB gave the name of Jason;

    (b)BLB told her to be quiet;

    (c)BLB put his hand over her mouth; and 

    (d)that she was screaming.

19. In re-examination the complainant confirmed that there were periods of time where her memory was blank, but said that her memory was not blank regarding when she was in the bushes.  Her evidence was 'no, not in the bushes.  Not where he raped me.  There's no blank memories in that area'.[88]  This was in contrast to her visually recorded interview during which she had variously described not being able to remember when asked about events that occurred in the bushes.[89]

    [88] ts 118.

    [89] CWI pages 11 - 15.

20. The complainant suggested that she had memory issues about 'how I got there and how I got back … but I remember everything that happened to me'.[90]

    [90] ts 118.

SARC report

1. When the complainant was examined by Dr Smith on 9 December 2017, approximately 9 to 11 ½ hours after the offences, Dr Smith observed no injuries to the complainant's mouth or neck.  A 4 cm x 7 cm graze was observed on the lower back.[91]  Along with two scratches to her arms and a 1.5 cm diameter bruise on the complainant's left forearm.[92]  Dr Smith also observed two bruises on the upper right thigh, and multiple small abrasions below the left kneecap.[93] 

   [91] SARC report par 18.

   [92] SARC report pars 19 - 21.

   [93] SARC report pars 22 - 24.

2. Dr Smith conducted an external genito-anal examination on 9 December 2017 and noted black particles (possibly dirt or soil) on the inner aspect of the outer genital lip and a 2.5 cm x 1.5 cm blister on the right inner genital lip.[94]  

   [94] SARC report par 27.

3. On 14 December 2017 a further external genital examination was conducted during which time no injuries were observed.  The blister had completely resolved.  An internal vaginal speculum examination was conducted and no injuries, or vegetative or foreign materials were observed.[95] 

   [95] SARC report pars 32 - 35.

4. Dr Smith's report indicated that sexual assault can occur without any general bodily injuries being present on physical examination.[96]  Further, Dr Smith reported that it is not uncommon for non‑fatal strangulation to occur without any signs of visible external injury.[97]  Dr Smith also reported that it is uncommon to find lip or mouth injuries after alleged penile-oral penetration.[98] 

   [96] SARC report par 48.

   [97] SARC report par 56.

   [98] SARC report par 58.

5. In respect of the bruises and abrasions it was not possible for Dr Smith to determine if the bruises and abrasions were due to accidental injury, non-accidental injury due to assault or a combination of both.[99]  Further, it was not possible to determine if the bruises and abrasions occurred before, during or after the offences.[100] 

   [99] SARC report par 100.

   [100] SARC report par 47.

6. Dr Smith reported that the observable blister was likely a friction blister caused by forceful repeated rubbing by another object or surface.  She was not able to be more specific about the nature of the surface or object.[101]  In her opinion, the site and type of the injury was not typical of injuries seen following penile-vaginal penetration.[102]  It was not possible for Dr Smith to determine if the contact that caused the blister was caused by penis, finger, mouth, tongue, or object or combination thereof, or whether consensual or non-consensual.[103]

   [101] SARC report par 104.

   [102] SARC report par 105.

   [103] SARC report par 106.

7. Finally, Dr Smith was of the opinion that the absence of peri-anal and anus injuries neither confirms nor excludes recent attempted anal penetration by a penis.[104]

   [104] SARC report par 108.

Other witnesses

WR

1. WR was TAS's boyfriend on 8 December 2017. He and the complainant had been seeing each other for around two to three weeks. They met around 4.30 pm,[105] and spent time in various locations close to and at the Joondalup Train Station eventually going to Memorial Park, sometimes referred to as TP.[106] 

   [105] ts 138.

   [106] ts 139 - ts 140.

2. WR's evidence was that everyone at TP was drinking alcohol, including the complainant.  He told the complainant to stop drinking because in his view she had had too much to drink.  His evidence was that the complainant had drunk two or three Woodstock premixed cans and three or four 375 ml bottles of goon.  He described that the complainant was 'sculling' the wine drinking it really fast.  This was about 30 minutes before BLB arrived.[107]

   [107] ts 140.

3. In respect of the 'weed', WR said that the complainant smoked three or four tokes of herbal marijuana from a bong and 'went off her head'.[108] 

   [108] ts 140.

4. He described that the complainant stopped drinking because everyone started telling her she was 'way off' and could not even walk straight.  He tried to sober her up by taking her for a walk.[109] 

   [109] ts 140.

5. WR described BLB as half drunk when he arrived.  He described BLB as acting very flirty and being all over the girls.  He was holding the girls around the waist and over the shoulder, hugging them.  He did this to the complainant as well as other girls.[110]

   [110] ts 140.

6. He heard BLB offer to take the complainant to his place so she could crash there.  Although WR said no, BLB kept asking to take her to his place.[111]

   [111] ts 141.

7. Ultimately the complainant did not go home with WR because she said she was 'not in a good state'.  He left without her.  The next morning around 6.00 am he noticed that he had received messages from the complainant at 1.56 am saying 'help me' repeatedly.[112] 

ACCW

[112] ts 141.

1. ACCW was in Joondalup on 8 December 2017 to meet up with his mates as he usually did.  He described that it was typical for whoever was free to meet up.  He met up with WR, the complainant, RMcC and LTS at the train station before going with them to Turtle Pond next to Memorial Park.[113]  He described that there was a pretty large group at Turtle Pond that grew in number as time passed.[114]

   [113] ts 142.

   [114] ts 143.

2. ACCW's evidence was that some of the group had bought alcohol which was shared amongst everyone.  He described that the complainant was pretty drunk from a cask of wine.  He noticed a change in her behaviour as she went from relatively quiet and reserved to happy and jumpy.[115]  He did not say when he observed this referable to when BLB arrived or when he, Ali, left for home.

   [115] ts 143.

3. He described that BLB was a touchy feely guy who would touch girls buttocks and say things like 'see that girl over there?  I'd fuck her'.  He did not however specifically describe seeing this behaviour on that night.[116]

   [116] ts 143.

4. ACCW left by catching an 11.18 pm bus from the train station.[117]

LTS

[117] ts 143.

1. Around sundown on 8 December 2017, LTS went to Turtle Pond to catch up with friends.[118]  He described a group of at least 11 people, including the complainant, being there when he arrived with his girlfriend CV.[119]

   [118] ts 143.

   [119] ts 144.

2. LTS arranged for his friend GR to purchase alcohol.  GR purchased a 10 pack of Woodstock premix (8%), a 10 pack of Woodstock premix (6%), a 10 pack of Woodstock premix (4.8%) and two bags of goon wine.[120]

   [120] ts 144.

3. LTS described the complainant as a light weight based on having seen her behaviour when drinking previously.[121] 

   [121] ts 144.

4. On this evening the complainant asked him for a can of Woodstock and he said no.  He did however give her boyfriend a can of Woodstock 8%.  He then saw the complainant take the can and start drinking it.  He also saw the complainant take a few mouthfuls from a goon bag.  This prompted him to whip the bag out of her hands and tell her 'no more drinks'.[122] 

   [122] ts 144.

5. LTS described that about an hour later the alcohol had hit the complainant and she was 'smashed'.  He described that she was 'really really drunk, like close to the point of passing out, and she was slurring her speech'.  He also described seeing her eyes glazed and red, thinking that she had smoked some marijuana.[123]

   [123] ts 144.

6. LTS describes that the complainant and WR left to get food and returned.  About 45 minutes after that BLB arrived.  He noticed that BLB started trying 'to get with [the complainant]'.  He saw BLB being really flirty and feeling her up.  He described BLB getting real close with the complainant asking her for hugs and feeling her arse. 

7. LTS's evidence was that BLB was drinking a 17.5% bottle of red goon wine and was 'drunk'.[124]

   [124] ts 145.

8. LTS described that WR got angry as a result of BLB's behaviour and asked to leave.  At about 10.30 pm - 11.00 pm he, WR, CV and the complainant walked to the Joondalup Train Station.  After some discussion regarding trains and buses, he, CV and WR took a train leaving the complainant at a bus stop.[125]

KDB

[125] ts 145.

1. On 8 December 2017 KDB had been at the Arcade Nightclub in Joondalup with GR.[126] 

   [126] ts 146.

2. KDB's evidence was that at about 1.40 am he left the Arcade Nightclub with GR and walked to the Joondalup Train Station.  As he approached the train station he was approached by BLB and a girl he did not know.  They looked like friends upon his observation.  When he got closer to the girl he noticed that her mascara was running, like she had been crying.  He did not ask her about it.[127] 

   [127] ts 146.

3. He spoke with BLB and the girl went and spoke with GR.  A group of people joined him and BLB as they were talking.[128]

   [128] ts 147.

4. Whilst he was talking with BLB, GR came over and said he was going to hit BLB.  He took GR away from BLB, and they walked to where the girl was.  He asked what was going on and the girl said 'he raped me.  I didn't know what to do.  He forced me.'[129] 

   [129] ts 147.

5. KDB alerted the transit guards and stayed with the girl until the police and ambulance arrived.[130] 

GR

[130] ts 147.

1. GR's evidence was that he attended Turtle Pond on 8 December 2017.  He got there around 7.30 pm.[131] 

   [131] ts 148.

2. Whilst there he caught up with WR, the complainant and LTS.  He was there when BLB arrived.[132]

   [132] ts 148.

3. He noticed BLB drink some port wine that BLB had with him.  He also noticed BLB share his alcohol with WR, the complainant and some other people.[133] 

   [133] ts 149.

4. GR left Turtle Pond around 8.30 pm to 9.00 pm eventually meeting up with KDB at Arcade Nightclub.  They left the club at about 1.30 am in order to catch the 1.40 am train.[134] 

   [134] ts 149.

5. Whilst GR was at the train station he saw the complainant and BLB walk around the corner together.  The complainant came up to him and he could tell something was wrong with her.  He described that it looked she had been crying as her mascara and makeup was running.  He also described her as seeming scared and closed off in contrast to how he had seen her earlier that night when she appeared happy and outgoing.[135] 

   [135] ts 149.

6. GR asked the complainant what was wrong and she said 'He raped me.  He wouldn't stop', and pointed towards BLB.[136]  

   [136] ts 149.

7. He went and spoke to BLB and asked him 'why the fuck did you rape her?' To which BLB replied 'I don't know what the fuck you are talking about'.[137] 

   [137] ts 149.

8. GR sat with the complainant whilst KDB went to get the transit guards.  The complainant broke down crying.  He tried to comfort her until the police arrived.[138] 

Officer Lamers

[138] ts 149.

1. Transit officer Bradley Lamers was working nightshift at the Joondalup Train Station on 8 December 2017.[139] 

   [139] ts 150.

2. At about 2.00 am a young bloke approached the office and said that his friend had been raped.[140]  

   [140] ts 150.

3. Transit officer Lamers checked that the cameras were on and then went and spoke with the young lady, the complainant.  He noticed that she was crying and her body was shaking.  She appeared very upset.  She said that it happened at the LBC Baptist School by the lake.  Transit officer Lamers asked her if she was injured and she showed him a bruise on her back.  When he asked her if she knew who the guy was, she said it was a friend of her boyfriend and that her boyfriend left her with him.[141]  After the male that reported the incident said it was BLB, the complainant told transit officer Lamers that 'he raped her'.  He asked if the guy had hurt her, to which the complainant responded 'yes'.[142]

   [141] ts 150.

   [142] ts 151.

4. Transit officer Lamers contacted the police.  Transit officer Lamers also reviewed the TransPerth CCTV system and ensured that the footage was retained.[143]

Senior Constable Joseph Dainty

[143] ts 151.

1. At 2.30 am on 9 December 2017, Senior Constable Dainty attended the Joondalup Train Station with Senior Constable Goodfield.[144]

   [144] ts 152.

2. At 2.35 am he spoke with the complainant.  Senior Constable Dainty described that the complainant was sat on the floor and appeared clearly distressed.  She appeared quite disheveled.  Her make-up had run and her eyes were bloodshot and swollen.  It appeared to Senior Constable Dainty that the complainant had been crying.[145]

   [145] ts 152.

3. Senior Constable Dainty spoke with the complainant.  He described that the complainant struggled to speak and appeared quite withdrawn, staring at the floor.[146]

   [146] ts 152.

4. Senior Constable Dainty described that 'through questioning, [the complainant] stated that she had been raped by a male vaginally and orally'.  The complainant also stated that the male had refused to let her leave and had held her down.[147]

   [147] ts 152.

5. Senior Constable Dainty continued to obtain an account from the complainant who said that she had been raped vaginally near to a lake off Joondalup Drive.  The complainant identified a lake/pond located on the junction of Kenny Drive and Joondalup Drive near to the HBF Arena.[148]

   [148] ts 153.

6. The complainant identified that the male who had raped her was called BLB.[149]

   [149] ts 153.

7. Senior Constable Dainty spoke with the complainant for about five minutes before an ambulance arrived.  He accompanied her to the hospital and again spoke with her to get a full account of the incident.  Ultimately officers from the Joondalup detectives attended and relieved him and Senior Constable Goodfield.[150]

Sergeant Troy Baker

[150] ts 153.

1. At approximately 2.40 am on 9 December 2017 Sergeant Baker attended the Joondalup Train Station with Constable Ryan.[151]

   [151] ts 154.

2. He located the complainant.  She was sitting on the floor with her head in her hands crying.  He then spoke to her.[152]

   [152] ts 154.

1. Sergeant Baker asked the complainant 'did he have sex with you?' to which she nodded.  He then asked 'where did it happen' to which she said 'the lake near the school'.  When he enquired where exactly, the complainant said 'in the bush and on the grass.  He was chasing me for about two hours.  I thought I was going to die'.[153] 

   [153] ts 154.

2. Sergeant Baker's evidence was that he then asked 'did he hold you down and have sex with you?' to which the complainant said 'yes'.[154] 

   [154] ts 154.

3. Sergeant Baker undertook police tasks including a search of the grass and bush areas at the HBF Arena, Kennedy Drive Joondalup.  Nothing of interest was located.

The offender

1. BLB was born on 9 September 1997 and was 20 years old at the time of the offending.  He lives in Teem Treasure supported accommodation for people with disabilities.  He has Agenesis of the Corpus Callosum.[155]  BLB described having a bad family life.  His father committed suicide when BLB was 13 years old.  His mother had bipolar and took a lot of drugs.[156]

   [155] ts 160.

   [156] ts 161.

2. On 8 December 2017 BLB was at home before going into Joondalup around 7.30 pm to 8.00 pm.  He had not drunk any alcohol before he left home.[157]  BLB caught the train into Joondalup, but estimated that it would be approximately a 30 minute walk from his house to the Joondalup shops.[158] 

   [157] ts 161.

   [158] ts 164.

3. Once in Joondalup he went to the Arcade Nightclub by himself arriving roughly about 8.30 pm, near 9.00 pm.  At the Arcade Nightclub he drank Jack Daniels and Tequila shots.  He did not know how many he drank but described it as 'quite a bit' and was feeling 'pretty drunk'.  BLB did not have any idea of what time he left the club.[159]  Outside the club he ran into a friend, Ben.  Together they walked up to Turtle Pond.[160]

   [159] ts 165.

   [160] ts 167.

4. At Turtle Pond there was a group of both guys and girls.  The complainant was in the group but BLB had not met her before.[161]  At Turtle Pond BLB observed the complainant stumbling and saw her knee smack on the outside of a piece of limestone.[162]

   [161] ts 170.

   [162] ts 170.

5. When asked what the people were doing at Turtle Pond, BLB answered 'drinking'.[163]  According to BLB he could see goon bags of fruity lexia.  He had a bit of Jack's with him and gave evidence that he was drinking at Turtle Pond.  He also shared what he had with others.[164]

   [163] ts 171.

   [164] ts 171.

6. BLB gave evidence that he spoke with quite a few people at Turtle Pond including the complainant.  He described her as seeming 'really drunk'.[165]  He told the complainant that his name was BLB and said that he had kids.  He told this to more than one person.[166]

   [165] ts 171.

   [166] ts 171.

7. BLB described leaving Turtle Pond with the complainant and described that WR was a bit ahead.  He did not know what time it was that he left.[167]  They went to the train station to check what time the bus and trains were running.[168]  BLB said that he decided to walk home because both the bus and train were 'going to be an hour and a half or so late'.[169]

   [167] ts 172.

   [168] ts 173.

   [169] ts 174.

8. BLB gave evidence that he said to the complainant 'if you want, I can drop you home' because he lived near that area.  They walked together towards McDonalds on a pathway eventually coming to an area near a HBF Arena sign.  At that area BLB felt 'vomity' and had to run into the closest bush to vomit.[170] 

   [170] ts 179.

9. After vomiting he sat down on the grass in area depicted in photo 20 (exhibit 3) and talked with the complainant.  They talked about family and the complainant mentioned that she was not getting along with her mother.[171]  BLB described that the complainant seemed really upset when speaking about her mother and was crying.  He said that he gave her his number in case she wanted to contact him for advice.  BLB also gave evidence that the complainant told him she was upset because WR had said that she could not come over.[172] 

   [171] ts 180.

   [172] ts 181.

10. BLB said that the complainant told him that she went to school but she wagged.   When she said this to him, he did not ask her anything.[173]

    [173] ts 181.

11. BLB's evidence was that the complainant initiated the physical and sexual contact between them.  Regarding the sexual contact, BLB's evidence was that:

    (a)The complainant started stroking down his chest getting to his penis.  She then rubbed him on the outside of his pants before putting her hands into his underpants, starting to stroke his penis.[174]

    (b)After he got an erection, the complainant started to give him oral sex.  He did not ejaculate.[175]

    (c)When asked if there was any other sexual contact, BLB said he rubbed his penis on the lips of the clitoris.  He described that his penis was 'just on the outside of the lips', 'it was pretty much in between the lips but on the outside'.  BLB denied putting his penis into her actual vagina.[176]

    (d)The complainant was kissing him but did not say anything to him during their sexual contact.[177]

    (e)BLB denied ejaculating.[178]

    (f)BLB also denied that the complainant got up at any stage and ran away.[179]

    (g)When asked 'was she affected by alcohol still?  Was she still drunk?' BLB answered 'yes'.  He also said he was still drunk.[180]

    [174] ts 181.

    [175] ts 182.

    [176] ts 182.

    [177] ts 182.

    [178] The transcript at 182 reads '(no audible answer)' however my notation of the evidence was that BLB replied 'no' when asked 'did you ejaculate?'.

    [179] ts 182.

    [180] ts 187.

12. BLB said that when the sexual contact finished between them the complainant said she wanted to go back to the train station.   They then got up.  He struggled to put his pants on due to his erection.[181]  They hugged and BLB told her to call him whenever she wanted to talk.[182]

    [181] ts 182.

    [182] ts 183.

13. BLB said that he walked the complainant back to the train station to make sure that she was safe.  He denied that she was crying at this time.[183]  They stopped at the Caltex on the way back to the train station.  BLB gave the complainant the money to purchase a drink but waited outside.[184]

    [183] ts 183.

    [184] ts 183 - ts 184.

14. BLB and the complainant arrived at the train station where they saw a few people.  Ultimately he ended up walking home, leaving the complainant with her other friends at the train station.[185]

    [185] ts 185.

15. BLB gave evidence that between that night and when he was interviewed by the police he had received threatening text messages.[186]  The messages accused him of raping the complainant.  They also referred to the fact that she was 14 years old.[187]

    [186] ts 186.

    [187] ts 187.

16. BLB said he was scared and upset by the messages.  His evidence was that he did not tell the police the truth because he was scared.  He agreed he was scared that the complainant was 14 and that she saying she was raped, but 'also because of the messages that were coming in saying that they were going to run through my house, and that if they see me on the street they were gonna jump all over my head…'.[188]

    [188] ts 187.

17. In cross-examination BLB denied telling people that he wanted another child or asking the complainant if she wanted to be the child's aunty.[189]

    [189] ts 189 - ts 190.

18. BLB indicated that on the night he had a 700 ml bottle of Jack Daniels Bourbon Whisky with him.  It was not mixed with anything.[190]

    [190] ts 190.

19. BLB denied flirting with anyone at Turtle Pond and denied holding the complainant around her waist[191] or feeling her up with his hands[192] or asking her for hugs.[193]  BLB also denied touching any girls on the buttocks at Turtle Pond.[194]

    [191] ts 190.

    [192] ts 191.

    [193] ts 192.

    [194] ts 194.

20. BLB also denied telling WR that the complainant could crash at his place.  He explained that he would never have said that because the coordinator of his accommodation would have to say yes first. [195] 

    [195] ts 190 - ts 191.

21. When asked about his memory in cross-examination, BLB said he became drunk enough not to remember things around 'maybe 12‑ish' when he was around the area near the train station.[196]

    [196] ts 192.

22. BLB denied that he kissed the complainant at the train station and said that she kissed him.[197]  When shown the CCTV from the train station (exhibit 6, clips 1 and 2), BLB continued to deny that he kissed the complainant.  He then said that the complainant asked him to kiss her and that the complainant told him that he could kiss her.[198]

    [197] ts 192.

    [198] ts 195.

23. During cross-examination BLB agreed that he knew the complainant was at school and had been wagging school.  He did not ask her what year she was in.  He denied that the complainant told him her age and indicated that he never found out her age that night.[199]  When Mr Dungey put to BLB 'did you have any belief as to how old [the complainant] was?', BLB said he thought she was 16 to 17 years of age.  When asked why, BLB's evidence was that 'she looked like she was 16 or 17 years of age' and by the way she was drinking and the way she was acting.[200]

    [199] ts 197.

    [200] ts 198. 

24. BLB said that he and the complainant had sex with her on top of him.  He denied pushing her to the ground or that she was crying during sex. BLB agreed however that the complainant told him she had a boyfriend.[201]

    [201] ts 198.

25. When Mr Dungey put to BLB that the complainant was 'blind drunk', BLB answered 'Yes, and so was I'.[202]  BLB also accepted that he was older, taller, and heavier built than the complainant.[203]

    [202] ts 200.

    [203] ts 200.

26. BLB denied trying to penetrate the complainant's anus.  He denied that he put his penis in her mouth, saying that 'she grabbed my penis and put it in her mouth'.  BLB denied putting his hands around the complainant's neck or over her mouth, or putting his fingers in her vagina.[204]

    [204] ts 200.

27. BLB denied that GR asked him 'why the fuck did you rape her?' at the train station after he and the complainant returned.  In cross‑examination when Mr Dungey asked 'you're saying when you left the railway station that night, you knew nothing about an allegation of rape?', BLB agreed.  He also agreed when Mr Dungey put the proposition that 'you thought it was a nice night and you hadn't done anything wrong at that point?'.[205]

    [205] ts 202.

28. When asked about their arrival back at the train station, BLB's evidence was that 'when [the complainant] was around me, she was fine'.[206]

    [206] ts 205.

29. In cross-examination BLB confirmed that he lied to police when he spoke with them.  He confirmed that he lied when he said he did not recognise the complainant, he lied when he said he had never spoken to her, he lied when he said he did not meet her on that Friday night, and lied when he said that he had never seen her before.[207]

    [207] ts 208 - ts 209.

30. BLB said he was scared of the police.  When asked why, he said because he 'didn't want to go to gaol.  And because of the threats that I was getting from people'.[208]

    [208] ts 209.

31. When pressed about whether the sex was willing, BLB responded 'It's all I'm saying is that I was drunk, she was drunk, and I didn't know what I was doing'.[209]

    [209] ts 210.

The CCTV footage

1. Exhibit 6.1 contains several clips of CCTV from the Joondalup Train Station on 8 December 2017 and 9 December 2017.

2. Clips 1, 2 and 3 (as per exhibit 6.2) are contained within a file labelled JDP103-2017-12-0820h33mins206ms.g64.  These clips depict the complainant and BLB together between 11.15 pm and 11.16 pm.  At 00:26 seconds into the file BLB and the complainant are seen walking towards the turnstiles of the train station.  BLB is holding the complainant's arm to his chest area and they appear to be walking arm‑in‑arm.  As they approach the turnstiles, BLB lets go of the complainant's arm, moves his hands to the back of her neck and pulls his face towards hers so that their heads appear to be touching.  This can be seen at 00:31 seconds into the file. 

3. It is not possible to conclude whether BLB and the complainant kiss given that the point of contact, if any, occurs behind a pole, however their faces remain close (or in contact) for approximately four seconds before BLB pulls his head away.  He then pulls the complainant's head to his chest for a brief hug and he pats her on the back.  They then separate.

4. Clips 10, 11 and 12 are contained within file JDP002-2017-12-09_0258m27s008ms.g64 in exhibit 6.1.  These pieces of footage were captured between 1.50 am and 2.04 am on 9 December 2017.

5. At 00:07 seconds into the footage, BLB and the complainant can be seen walking along the upper train station walkway.  They are walking next to each other but do not physically touch.  The complainant has an electronic device in her hand.  It appears to be illuminated.

6. At 01:12 minutes into the footage the complainant climbs over the turnstiles.  BLB follows behind her.  The complainant can then be seen to be using an electronic device.  At 01:42 minutes into the footage the complainant walks out of the train station.  BLB continues to follow from behind.

7. At 04:54 minutes into the footage the complainant and BLB are seen walking back into the train station.  They are walking next to each other.  Two other people can be seen near the entry to the train station.  One is sitting and one is standing.  BLB and the complainant appear to talk with the other people.  Those people then exit out of the camera's view. 

8. For several minutes BLB and the complainant remain standing near the train station entrance.  The complainant can be seen to be looking at her electronic device for most of the time.  At 07:24 minutes into the footage, BLB and the complainant walk back down the upper walkway towards the foreground of the footage.  They again walk side by side.  During this time the complainant is still looking at her electronic device.  The footage is not of sufficient quality to determine whether the complainant's face shows distress, although she does not appear to be wiping her eyes or face. 

Dr Merrimen

1. Dr Merrimen has seen BLB for psychotherapy sessions since 13 January 2020.  By the time of giving evidence, Dr Merrimen had seen BLB for 14 sessions.[210]

   [210] ts 217; Exhibit 18.

2. Dr Merrimen indicated that BLB is missing a part of the corpus callosum that allows the transmission of information between the hemispheres of the brain.  This condition causes problems with problem‑solving and critical thinking.  Dr Merrimen likened the consequences to FASD, fetal alcohol syndrome.  Dr Merrimen explained that a number of people with the condition have autism and processing issues, causing a lifetime of difficulties in comprehending issues.  As a result, chunking of information occurs for the purposes of decision‑making and communication.  Chunking can sometimes cause the person to miss out certain information.[211]

   [211] ts 220.

3. Dr Merrimen indicated that the deficits depend on the damage which is present.  This is assessed with neurological scanning.  No such scanning has been conducted in respect of BLB.[212]  Dr Merrimen is not able to determine the severity of BLB's level of disability.[213]  Dr Merrimen made reference to other assessments conducted in respect of BLB, but confirmed that he had not seen the original assessments.

   [212] ts 220.

   [213] ts 223.

4. Those other assessments included diagnoses of emotionally unstable personality disorder - borderline type, adjustment disorder, major depressive disorder and PTSD.[214]

   [214] Exhibit 18, page 1.

5. Dr Merrimen indicated that someone with this disorder will model themselves on the actions of others.  This also flows into the issue of sexuality because sexual rules are learnt.[215]  Dr Merrimen gave evidence that BLB now has understanding around the issues of age and consent.  His evidence was that:[216]

   it's hard to determine what was happening back then apart from trying to predict what we know with people with this particular condition, is that he would have been looking for certain cues from others about the right thing to do.

   [215] ts 224.

   [216] ts 225.

6. Dr Merrimen had not seen the CCTV footage but indicated if given cues, such as another person not pulling away when they kiss someone, a person with this condition will act upon learned rules.[217]  Intoxication would also impair the thought processes.[218]

   [217] ts 225.

   [218] ts 226.

7. Dr Merrimen was of the opinion that BLB's condition would have affected his logical decision-making around age of consent 'very, very difficulty'.[219]  Dr Merrimen's report indicates that intoxication exacerbates BLB's difficulties in problem-solving, appropriate behaviours and appropriate decisions.[220]

   [219] ts 227.

   [220] Exhibit 18, page 2.

8. Dr Merrimen gave further evidence relevant to the sentencing proceedings only.

9. Under cross-examination Dr Merrimen confirmed that BLB was at risk of engaging in behaviours such as hugging and touching girls without invitation prior to his work with Dr Merrimen.[221]  Dr Merrimen confirmed that BLB would be capable of being untruthful[222] and said that BLB would have been in shock around being interviewed by police and not sure how to handle that situation.[223] 

   [221] ts 234.

   [222] ts 235.

   [223] ts 236.

10. Dr Merrimen said that BLB had a healthy libido for his age.[224]

    [224] ts 237.

11. Dr Merrimen also confirmed that notwithstanding BLB's conditions, he would have no difficulty in understanding that there was a refusal of consent to sex if the circumstances indicated as such (such as her screaming, his placing his hand over her mouth, or her indicating she was only 14 and had a boyfriend).[225]

    [225] ts 242.

Parties' submissions

1. The State's case is that the complainant never said or did anything to indicate that she wanted to have sex with BLB.  Further, the State submitted that the complainant did a number of things which made it clear that she did not want to have sex.

2. The State submitted that BLB's disabilities were not significant in the context of the trial of the issues, because BLB's evidence was that the complainant initiated the sexual contact by putting her hand down his pants.  In effect, the State says that any man, including a man with BLB's disabilities would interpret that information in the same way.  Further, the State submitted that Dr Merrimen's evidence did not suggest that BLB would not have understood the cues of being pushed away or screaming during sex.

3. The State's case is that BLB was positively told of the complainant's age.

4. The State submitted that TAS's evidence was given with emotion and anger and was consistent with the nature of the propositions that were being put to her. 

5. In respect of the inconsistencies between the complainant's evidence in her interview and evidence at the hearing, the State submitted that the form of questioning may account for greater evidence being elicited at the hearing.  The State drew a distinction between the scripted non‑leading questions in the interview and the more direct questioning during the hearing.

6. The State submitted that the complainant's account was reliable given that she made a complaint, including that she told Senior Constable Dainty that BLB refused to let her go and held her down.  The State also drew the court's attention to the complainant's distress noticed by others at the train station, and the messages sent to WR at 1.56 am.  The State described these messages as a cry of distress.  The State says that the complainant's distress is hard to reconcile with BLB's version of events.

7. The State submitted that the evidence showed that BLB was behaving inappropriately towards women in general on that night and initiated touching the complainant in front of others.  The behaviour showed, in the State's submission, that BLB was a sexually active young man.  The State drew the court's attention to the footage that showed BLB take the initiative, put his hands on either side of her head and kiss the complainant.  Further, the State's case is that BLB did not just form an idea to have sex when at the bushland area.  The State's case is that BLB wanted to have sex with the complainant for some time, as evidenced by his telling WR that he would take her home and his taking her to a secluded area.

1. The State submitted that the evidence showed that no alcohol was consumed after 11.15 pm.  The complainant's urine alcohol reading was taken at 4.50 am and read 0.167%.

2. The State submits that BLB's evidence was unreliable.  The State says that BLB did not have a complete memory of the events, had forgotten things he had done, and could not be relied upon as an accurate historian.  The State submits that BLB's failings of memory were for things that painted him in a bad light.

3. On behalf of BLB it was submitted that the complainant's level of intoxication was such that it has effected the reliability of her memory.  For example, the complainant did not recall what can be seen in clips 1, 2 and 3 of exhibit 6.1 and did not recall how she got to the bush area where they had sex.  Further, it was submitted that the reliability of the evidence of the other people who were at Turtle Pond and said that they observed BLB's behaviour, was also likely effected by intoxication.

4. The defence submitted that there were aspects of the complainant's evidence that was not plausible.  For example:

   (a)It was not plausible that BLB would have both put his hand over the complainant's mouth to stop her screaming, but also asked her to 'tell me that you love me' whilst they were having sex; and

   (b)It was totally inconsistent for the complainant to have pulled BLB back towards the train station given what she said had occurred.

5. Further, the defence submitted that the complainant's evidence was inconsistent about significant aspects of the sexual activity.  In addition, the complainant's physical presentation was not consistent with having been repeatedly held down given the absence of bruising or injury to her shoulder area where she says she was held down.  The defence submitted that the findings of Dr Smith are consistent with BLB's account of the events.

6. The defence submitted that the complainant chose to leave with BLB, demonstrating a level of comfort she must have felt in his presence.  Contrary to the State's submission that BLB lured the complainant into a secluded area, Ms Prince submitted that the path taken was consistent with walking towards BLB's home.

7. The defence submitted that the evidence of crying seen by KDB would have also been consistent with the complainant crying whilst talking about family matters.  Further, the complainant and BLB appeared to look like friends on his observation of them.

8. The defence submitted that BLB's evidence could be accepted.  It was logical that BLB would have vomited given his level of intoxication.  Further, it was submitted that BLB's behaviour in staying with the complainant in the train station when they see other people after the events and giving her his accurate number, is inconsistent with an unwilling sexual encounter between them.  In respect of BLB's behaviour earlier in the night, the defence submitted that the complainant did not describe any inappropriate touching at Turtle Pond.

9. The defence submitted that BLB's fear can account for his telling lies to the police.  Contrary to the State's submission that his lies were consistent with a consciousness of guilt, the defence submits that the fact that BLB walked back to the train station with the complainant after sex demonstrated the opposite.

Distress

1. Evidence of distress is capable of supporting the State's contention that the complainant was unwillingly sexually penetrated as contended by the State.[226]

   [226] Eades v The Queen [2001] WASCA 329 [34] (Murray J); R v Flannery [1969] VR 586; Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19 [44];

2. Before I can be satisfied that evidence of distress is capable of supporting the State's case, I must first be satisfied that the complainant was in fact distressed.  I have little difficulty in being satisfied beyond reasonable doubt that TAS was in fact distressed on the morning of 9 December 2017.  KDB did not know the complainant and described her as appearing though she had been crying.  GR, who knew the complainant, described her as breaking down crying.  Each of the officers described the complainant as crying.  Senior Constable Dainty described the complainant as appearing clearly distressed.

3. However, evidence of distress itself is not sufficient to be supportive of the State's case that the sexual encounter was unwilling in addition to occurring without consent due to the complainant's level of intoxication.

4. In order for it to be supportive of the State's case, I would need to be satisfied that the distress was not caused by some other reason.  In this case I am not satisfied that there is no other reasonable inference open other than the complainant was distressed as a result of BLB sexually penetrating her without her willing participation.

5. There are a number of other reasonable inferences open on the evidence including:

   (a)That she was distressed because she had sexual intercourse with BLB even though she was in a relationship with WR at the time;

   (b)Her distress arose from a realisation that she was too intoxicated to have consented to sexual activity with BLB; or

   (c)That she was distressed because they had not used contraception.

6. Consequently, I am not satisfied that the complainant was distressed because BLB had sexually penetrated her without her willing participation.

Lies and consciousness of guilt

1. I am satisfied beyond reasonable doubt that BLB told several lies to the police when he was interviewed by the police on 22 December 2017.  In particular:

   (a)BLB lied when he told the police that he did not recognise the complainant when shown a photo of her;

   (b)he lied when he said that he not ever spoken to the complainant;

   (c)he lied when he said he did not meet the complainant on 8 December 2017; and

   (d)he lied when he said that he had never seen her before.

2. I am also satisfied that these lies were deliberate lies.  BLB admitted to lying.  Further, they are not things about which he could be mistaken about in the all of the circumstances.  

3. When considering the issue of BLB's lies to the police I remind myself that not every lie told by an accused person/offender is evidence of guilt.  There may be many reasons for telling a lie.  BLB may have lied out of embarrassment, fear for his safety, panic, to escape an unjust accusation, or because he knew the complainant was too drunk to consent to sex. 

4. In this instance BLB's lies relate to the event connected with his offending.  However, to be capable of supporting the State's case that BLB lied out of a consciousness of guilt of having engaged in an unwilling sexual encounter, the lies must be explicable only on the basis that the truth would implicate in the offence with which he has been charged.  In this instance, the lies must only be explicable on the basis that the truth would have implicated him in an unwilling sexual encounter.  The motive for the lies must also have been a realisation of guilt and a fear of the truth.[227]

   [227] Edwards v The Queen(1993) 178 CLR 193.

5. I am not satisfied that BLB lied out of a realisation of guilt of having engaged in an unwilling sexual encounter.  BLB accepts by way of his pleas of guilty that the complainant was too intoxicated to consent to sexual penetration.  Further, I cannot exclude that BLB lied because he was scared about the seriousness of the allegations being put to him by the police or because he had received threatening messages and was concerned for his safety and the safety of his family.  Dr Merrimen's evidence supports that BLB would not have been sure how to handle being interviewed by police.

6. BLB's lies however are a factor to consider when assessing his credibility.[228]

   [228] Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234.

Analysis

1. Dr Smith's evidence is neutral as to whether the sexual encounter between the complainant and BLB was a willing or unwilling encounter on the part of the complainant.  The causes of the observable injuries were unable to be determined.  In addition, the absence of injuries is not proof of a willing sexual event or a lack of physical force such as non‑fatal strangulation. 

2. During her child witness interview the complainant gave a straightforward and comprehendible account of what occurred to her on 8 and 9 December 2017.  She appeared to answer the questions as clearly as she could and indicated when she could not remember details or events.  She described sexual penetration occurring consistent with the counts on the indictment that BLB has pleaded guilty to.

3. During her evidence in court, the complainant's account of the sexual activity that occurred was significantly inconsistent to the account in her child witness interview.  In her child witness interview, conducted 11 days after the events, the complainant made no mention of:

   (a)BLB attempting to anally rape her;

   (b)BLB digitally penetrating her vagina;

   (c)BLB touching her breasts, neck and face;

   (d)BLB trying to cover her mouth and face; or

   (e)BLB putting his hands on her neck to try and stop her from screaming.

4. During the child witness interview the complainant described that BLB did not get really angry or violent and did not show that he was angry.  She described that she could not control BLB because he was stronger, she was drunk and she could not defend herself.  Her evidence was that she 'couldn't stop him'. 

5. In her child witness interview the complainant was not able to recall all of the details of what happened.  There were times that she could not provide details but appeared to be trying to provide as much detail as she could recall.

6. On 30 June 2020 the complainant accepted that she did not have a clear memory for all of the details.  She did not recall going to the train station with BLB before the offences occurred.  She said that she had gaps in her memory and said that her memory cut out 10 minutes after BLB arrived. 

7. Given the significant inconsistencies in her account of what occurred, combined with her difficulties in remembering events, I am not able to accept her evidence beyond reasonable doubt such that I would be required to rely upon it to be satisfied that the sexual encounter was a forceful and at times violent encounter in which the complainant was unwilling.

8. The complainant however was adamant that she did not initiate the sexual activity with BLB.  She was never inconsistent about that fact and became upset and indignant when it was suggested that she did so.  Whilst I cannot accept her evidence beyond reasonable doubt, her emphatic rejection of this suggestion causes me significant doubt as to whether I can accept BLB's evidence in this regard.  In addition, the fact that BLB lied to the police about even knowing the complainant, causes me concern regarding his credibility as a witness.

9. I accept the State's submission that Dr Merrimen's evidence is of little consequence to the issues I am to resolve in this matter, given that I do not accept that the complainant initiated the sexual activity. 

10. For the reasons I set out further on regarding the complainant's intoxication, I find that the complainant was far too intoxicated to consent to the sexual penetration.  She was smaller than BLB and given BLB's acceptance of her intoxication, I do accept the complainant's description that when she asked him 'why are we here?' when they were on the grassed area, he pushed her to the ground.  In all of the circumstances, I find that BLB took the opportunity of the situation and of the complainant's intoxication to engage in sexual activity with her. 

11. All of the witnesses who were at Turtle Pond universally described the complainant as intoxicated.  WR described that the complainant could not even walk straight.  ACCW described the complainant as pretty drunk.  LTS described that the complainant was smashed, slurring her speech and close to the point of passing out.  I accept this evidence.  The complainant described herself as being pretty out of it, and then fully out of it when her and BLB were walking to the park where the events occurred.  I accept this evidence in light of the other witnesses, but also BLB's description of the complainant's intoxication.

12. BLB described the complainant as being really drunk when at Turtle Pond and spoke of having seen her stumbling.  He accepted that she was still drunk when the sexual contact occurred.  Later in his evidence BLB accepted that the complainant was 'blind drunk'. 

13. I accept that the complainant did not consume any further alcohol after leaving the train station at approximately 11.15 pm and walking to the area where the events occurred.  The complainant's urine sample was taken at 4.50 am on 9 December 2017[229] over five hours after she last consumed alcohol.  Her urine sample was analysed and the reading was 0.167%.  Given her size, and reputed history of being a lightweight, the complainant would have been extraordinarily intoxicated five hours before the urine sample was collected.

    [229] Exhibit 10. 

14. Added to this, BLB was also intoxicated.  Witnesses described seeing him with alcohol and his own evidence was that he was also blind drunk.  No doubt BLB's intoxication impaired his thought processes as per Dr Merrimen's evidence.

15. Given these facts I do not accept that BLB believed that the complainant was not too intoxicated to consent to sex.

16. BLB was not asked during his evidence-in-chief about what belief, if any, he had of the complainant's age on 8 December 2017.  Accordingly, he did not give evidence setting out the reasons why he believed she was over 16.  It was only in cross-examination that BLB asserted that he thought she was 16 to 17 years of age.  BLB relied upon how the complainant looked and the way she was acting.

17. The child witness interview was conducted on 19 December 2017 when the complainant was 14 years and 5 months old.  Her appearance is consistent with that age.  She does not in my view look like she is 17 years of age.  It is true that a girl's appearance may be deceptive regarding their true age.  However her physical appearance is consistent in my view with someone who is aged between 14 and 16 years.

18. However it being possible that the complainant was 16 years of age falls short of BLB positively believing that the complainant was 16.  BLB's evidence that her drinking led him to believe she was over 16 years of age is not compelling.  In addition, according to BLB their conversation included school, wagging and her parents.

19. Given these facts, I do not accept that BLB held a positive belief that the complainant was over 16 years of age on 8 December 2017.  However, given the concerns I have regarding the complainant's reliability I am not able to accept beyond reasonable doubt that she told BLB that she was 14 years of age.  

20. In all of the circumstances, I am of the view that BLB simply did not turn his mind to the complainant's age on the night.  He was later informed that she was 14 years of age and he was concerned about that fact when he spoke with police.

Summary

1. Turning to whether the issues for determination have been proven.

2. I am not satisfied beyond reasonable doubt that the State has proven that the sexual encounter was a sustained, forceful and, at times, violent encounter in which the complainant was an unwilling participant.

3. I am also not satisfied on the balance of probabilities that the accused has proven that the complainant was the instigator of the sexual encounter that involved no force or overcoming of resistance.

4. Further I am not satisfied on the balance of probabilities that the offender has proven that he had an honest but mistaken belief, which was not reasonable, as to whether the complainant was too intoxicated to consent.

5. Finally, I am not satisfied on the balance of probabilities that the offender was positively of the belief that the complainant was over the age of 16 years.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

DM
Associate to Judge Barone

9 SEPTEMBER 2020