The State of Western Australia v Eades - [2017] WADC 123

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: THE STATE OF WESTERN AUSTRALIA -v- EADES [2017] WADC 123

CORAM: GOETZE DCJ

HEARD: 28 AUGUST 2017

DELIVERED : 8 SEPTEMBER 2017

FILE NO/S: IND 84 of 2017

BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
IVAN GEOFFREY EADES

Catchwords:

Criminal law - Alleged sexual penetration without consent - Trial by judge alone - Turns on own facts

Legislation:

Criminal Code Act Compilation Act 1913
Criminal Procedure Act 2004
Evidence Act 1906

Result:

Accused acquitted

Representation:

Counsel:

The State of Western Australia : Mr S B Watters
Accused: Mr R F Owen

Solicitors:

The State of Western Australia : State Director of Public Prosecutions
Accused: Aboriginal Legal Service (WA) Inc

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

Longman v The Queen (1989) 168 CLR 79
The State of Western Australia v Wood [2008] WASCA 81

GOETZE DCJ:

Introduction

The State of Western Australia has charged Ivan Geoffrey Eades with one offence alleging that, on 28 October 1989 at Girrawheen, he sexually penetrated the complainant without her consent, by penetrating her vagina with his penis. It is further alleged that this offence is aggravated by reason that the complainant was then under the age of 16 years.
Mr Eades has pleaded not guilty.

Trial by judge alone

Pursuant to an order under s 118 of the Criminal Procedure Act 2004 made on 1 June 2017 by her Honour Judge Petrusa SC, the trial of the charge against Mr Eades was ordered to be by judge alone without a jury.

Legal principles

Before proceeding further, it is appropriate to remind myself of the following:
1.The accused is presumed to be innocent of the charge brought against him.
2.The burden of proving the charge is on the State of Western Australia.
3.The State must prove the charge beyond reasonable doubt. If there is a reasonable doubt as to whether the accused is guilty of the charge, then it is my duty to acquit him.
4.The accused does not need to prove anything.
5.The accused did not give evidence during the trial. It was his right not to do so. No adverse inference can or should be drawn against him from exercising that right. The fact that he did not give evidence proves nothing, one way or the other.
6.As will be observed in due course, the State case against the accused consists of both direct and circumstantial evidence.
An inference, or conclusion, can only be drawn against the accused if it is the only reasonable inference, or conclusion, that can be drawn consistent with the proven facts. The circumstances found to have been established must be such as to exclude every reasonable inference, or conclusion, consistent with the accused's innocence. An inference, of course, is simply a logical deduction from a set of facts which have been found to be proven.
7.This is a criminal trial. It must be determined solely on the evidence, without speculation about matters not in evidence. Further, what counsel has said is not evidence. The evidence must be assessed dispassionately and objectively. The case must not be decided on prejudice, or on sympathy.
8.Part of the evidence of a witness may be accepted, but other parts of the evidence of that same witness may be disregarded.
9.At trial, various experts gave evidence of a finding or their opinion in areas in which they are qualified by training or experience or both, to make an expert finding or give an expert opinion. The facts upon which they base their respective opinions must be proved. Although it is expert opinion evidence, it is still evidence and as the judge of the facts, it is for me, not the experts, to decide whether to accept or reject their evidence.
In this case, the various experts were not challenged as to their findings or opinions.

The indictment and the elements of the offence

The offence of sexual penetration without consent was provided by s 324E of the Criminal Code, together with the circumstance of aggravation arising from s 324H(e), as they stood in 1989.
The elements of the offence are that:
1.the offender was the accused, Mr Eades;
2.Mr Eades sexually penetrated the complainant; and
3.the penetration was without the complainant's consent.
The alleged sexual penetration has been particularized as penile penetration of the complainant's vagina.
By way of explanation of the elements:
1.first, the State must prove beyond reasonable doubt that the person who did the things it alleges constitute the offence was the accused and not some other person;
2.secondly, sexual penetration can take many forms. This case concerns the alleged penetration of the complainant's vagina by the accused with his penis.
By s 324F of the Code, the law is that if a person penetrates the vagina of another person with any part of his body, including his penis, then he sexually penetrates that person.
Any degree of penetration of the outer lips of the vagina is sufficient. The word 'vagina' is used in a non‑technical way. Ejaculation is not necessary for sexual penetration to have occurred; and
3.thirdly, the State must prove that the sexual penetration was without the complainant's consent.
By s 324 of the Code, 'consent' means a consent means freely and voluntarily given. Consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deception or fraudulent means.
A failure of a person to offer physical resistance does not of itself constitute consent to a sexual assault.
In this matter, the State has alleged a circumstance of aggravation by s 324H(e) of the Code, namely that at the time of the alleged offending, the complainant was under the age of 16 years.
The State case stands or falls on the charged offence. Mr S B Watters, representing the State, conceded that there is no room in this trial for an alternative verdict.

The State case

The State case is that the complainant met another female at a bus station and that later, the other female obtained some alcohol. She then telephoned her boyfriend, whom she arranged to meet at a park. The boyfriend brought another male with him. That other male is alleged to be the accused. All four people then drank alcohol at the park. Then, they all went to a two‑storey town house in Girrawheen from which the occupants were absent.
The State case is that the complainant came to know the alleged offender as Finky Eades, who was Aboriginal and older than she was. The police evidence is that Mr Eades is sometimes known as Finky.
The State case is that, whilst at the town house, the other female and one of the males, who is not the accused, went into a bedroom leaving behind the complainant with the accused who forced the complainant up the stairs and into another bedroom, where he allegedly sexually penetrated the complainant without her consent.
The State case is that after the alleged penetration, the complainant claimed she wanted to go to the toilet, but the accused kept watch over her. After having been to the toilet, she was able to engage the other female and male in a conversation, during the course of which, she managed to escape from the town house and run to a nearby home, where she sought refuge. The police were then called. They took the complainant back to the town house and then to the Sexual Assault Referral Centre, where she was examined. Various swabs and samples were taken from her. Further, the complainant's clothing was seized.
A cold case review began in February in 2016, from which the State relies upon DNA evidence obtained from the complainant's clothing, being consistent with the accused's DNA profile on a database, so as to prove sexual penetration and the identity of the alleged offender.

The defence case

Mr Eades pleaded not guilty to the alleged offence. At the commencement of the trial, his counsel, Mr R Owen, indicated that everything is in issue.
The defence claims that the complainant lacks credibility. It is submitted that she is not reliable.
It is accordingly necessary that I consider the reliability of the complainant as a separate matter from her truthfulness. Credibility concerns honesty. The complainant may be honest, but have a poor memory or otherwise be mistaken and this is particularly so in a trial some 28 years after the alleged offence is said to have occurred. It is necessary to have regard to what is commonly known as a Longman direction, following Longman v The Queen (1989) 168 CLR 79, which will be considered later in these reasons.

The issues

It is necessary for the State to prove each of the three elements of the offence and the circumstance of aggravation beyond reasonable doubt.
In the circumstances of this case, it is convenient to first determine whether the complainant was penetrated and, if so, by whom? If it is found that the complainant was sexually penetrated and it was the accused Mr Eades who penetrated her, then the issue of lack of consent must be determined.

Was the complainant sexually penetrated?

There is no doubt that the complainant was sexually penetrated. That this is so can be seen from the following:
1.On the night of the alleged offending, the complainant was taken to the Sexual Assault Referral Centre at Subiaco, where she was examined by a medical practitioner, Dr Pamela Burgar, at 3.00 am on 29 October 1989.
Dr Burgar observed a small amount of secretions consistent with semen in the complainant's vagina. She took a number of swabs, smears and samples from the complainant, including from her vagina.
2.The police also collected the complainant's clothing at the Sexual Assault Referral Centre, being her T‑shirt, tracksuit pants, bra and underpants.
3.The biological samples and clothing were then all referred to the State Health Laboratory Services for examination.
4.Mr Calogero Carrello holds a Bachelor Degree of Applied Science and Medical Laboratory Technology. In 1989, he was employed at the State Health Laboratory Services as a medical laboratory technologist. He examined the complainant's biological samples provided from the Sexual Assault Referral Centre. He also examined the clothing provided by the police.
Mr Carrello gave evidence that the crutch areas of each of the underpants and tracksuit pants were removed from those items of the complainant's clothing respectively, examined and then separately stored in Petri dishes to preserve their integrity.
Mr Carrello provided the following results from testing the samples taken from the complainant and her clothing:
(a)spermatozoa and sperm heads were found in samples taken from various places within the complainant's vagina;
(b)spermatozoa and sperm heads were found on the crutch areas of both the complainant's underpants and tracksuit pants;
(c)the complainant's blood group is O;
(d)the semen within the spermatozoa identified at (a) and (b) above comprised a different blood group to that of the complainant;
(e)the blood grouping from the semen within the spermatozoa on the crutch areas of the underpants, the tracksuit pants and from various vaginal samples was all the same; and
(f)it was not however, possible to determine the number of donors of the spermatozoa in (e) above, given that multiple donors might have the same blood group.
In the circumstances, it can be asserted beyond reasonable doubt that given:
(a)Dr Burgar's findings of secretions, consistent with semen in the complainant's vagina, of which she took samples; and
(b)Mr Carrello's findings, from samples taken from within the complainant's vagina by Dr Burgar, that there was semen within spermatozoa found in the complainant's vagina
the complainant was sexually penetrated on 28 October 1989.

Who sexually penetrated the complainant?

After the sexual penetration in the bedroom, the complainant pulled up her underpants and tracksuit pants and went to the toilet. She then remained in the town house for some little time talking with the other female and two males before running to another home in the same street where she sought refuge. From there, the police were called. The complainant was taken back to the town house by the police and then, the police took her to the Sexual Assault Referral Centre, where her clothing was taken from her. This wearing of her clothing explains how semen and spermatozoa from her vagina was transferred to the crutch areas of her underpants and tracksuit pants.
On 6 June 1990, the accused attended at the State Health Laboratory Services with police officers and provided his reference blood and saliva samples for analysis. Those samples have never been forensically examined.
For the cold case review of this matter in 2016, the Petri dishes from the State Health Laboratory Services, with their respective crutch areas from the complainant's underpants and tracksuit pants, were forwarded to PathWest for further examination, together with the other biological samples collected by Dr Burgar.
There is no issue as to the continuity of the sample clothing in the Petri dishes or the other biological samples.
The evidence from Mr Scott Egan, who holds a Bachelor of Science Degree in Human Biology and who has been employed by PathWest since 1996 as a forensic scientist, is that it is no longer possible to obtain DNA evidence from the biological samples taken from the complainant. However, DNA was extracted from spermatozoa on each of the crutch areas of the complainant's underpants and tracksuit pants.
The DNA from the respective crutch areas of the underpants and tracksuit pants was then compared to a DNA database which includes a reference buccal sample provided to PathWest on 17 July 2014. The PathWest database records this sample as follows:

NAME

BARCODE

DATE OF BIRTH

Ivan Geoffrey Eades

DNA 8058102

23/6/1965

Mr Egan gave evidence that the profile from this DNA database matched other DNA profiles for 'Mr Eades' held by PathWest as follows:
(a)a crime scene sample from 2007;
(b)a reference buccal swab provided in 2007; and
(c)a crime scene sample from 2008.
No adverse inference can be drawn against the accused by reason of this DNA being stored on the database and in these records.
The DNA obtained from each of the crutch areas of the complainant's underpants and tracksuit pants respectively was a single source profile matching the DNA recorded on the database on 17 July 2014.
The likelihood of that match is that it is greater than 100 billion times more likely that the DNA on each of the crutch areas of the underpants and tracksuit pants originated from the person named on the database as Ivan Geoffrey Eades, date of birth 23 June 1965, rather than an unknown and unrelated individual, randomly chosen from the Australian population.
However, Mr Owen submitted that no comparison can be made between the DNA findings from examination of the crutch areas of the underpants and tracksuit pants with the database, saying that:
1.the accused provided reference blood and saliva samples in 1990 which have never been tested; and
2.there is no evidence as to the identity of the donor of the reference buccal sample provided on 17 July 2014 as recorded in the database other than the name and date of birth attached thereto and there is no evidence that that sample was, in fact, provided by the present accused.
Although Mr Owen conceded that the 17 July 2014 database probably relates to the accused, he submitted that the relationship between the database and the accused has not been proven beyond reasonable doubt.
This submission must be accepted.
It cannot be inferred from the DNA profile on the database and the samples referred to above that Ivan Geoffrey Eades, date of birth 23 June 1965, as referred to in that database and those sample records, is one and the same person as the accused in this trial with the same name and date of birth.
There is another inference reasonably open consistent with the accused's innocence, namely that there is another person with the same name and date of birth as the accused. Alternatively, an imposter has given the accused's name and date of birth in 2008 and 2014 when providing reference buccal samples for examination.
At trial, the State tendered a copy document headed 'Person Summary' dated 29 March 2016, being an internal use only police record providing information concerning Ivan Geoffrey Eades, date of birth 23 June 1965.
This copy document provides an unclear photograph of Ivan Geoffrey Eades. Otherwise, it details his description, address, mobile phone number, driver's licence number and other matters. This document also refers to the subject person being known as 'Finky' or 'Finkie' Eades. This document does not detail any DNA information at all. It is not suggested that the Ivan Geoffrey Eades in the document is not the present accused. However, this document does not establish a link between the accused and the DNA results.
It should be noted that s 50B of the Evidence Act1906 provides for an evidentiary certificate as to DNA testing. In this case, that certificate was signed on 29 June 2017, certifying that, on 17 July 2014, PathWest received a reference buccal sample which was examined by PathWest and which, after testing, was designated a barcode DNA 8058102 as referred to above. The circumstances of the provision and receipt of that sample were not explained in evidence. There is no evidence that it was provided and received for this matter. The certificate also relates to the receipt of the crutch areas of the complainant's clothing.
Although not stated in the certificate that the barcode related to Ivan Geoffrey Eades, date of birth 23 June 1965, that fact is contained elsewhere within the report, as being the reference sample used for comparison purposes with DNA from the complainant's clothing.
However, the certificate does not purport to be evidence that the reference sample, now on the database, was provided by the present accused for analysis.
There should have been evidence of the taking of a buccal or blood sample and of delivery of that sample to PathWest, followed by its analysis and comparison to the tested crutch areas of the complainant's clothing. Alternatively, evidence could have been led as to the identity of the donor of the 2007 and 2014 reference samples, presumably being the present accused. But there is no such evidence of any of these steps.
During cross‑examination, Mr Egan confirmed that he did not take any samples from anyone for DNA analysis. Therefore, he has no idea as to the true identity of the donors of any DNA material in this matter, save for the fact of labelling the 2007, 2008 and 2014 samples under the name of Ivan Geoffrey Eades, which for him, is hearsay. Mere labels do not prove identity.
Finally, this matter was raised at the end of the State case by way of a submission that the accused did not have a case to answer. That submission was then rejected. Following an overnight adjournment, closing submissions were heard the next day when this aspect of the defence was repeated. However, the prosecutor did not at any time seek to adjourn the trial to call evidence as to the present accused, in either 2008 and/or 2014, providing a buccal swab sample for testing. Alternatively, there was no request to adjourn for the 6 June 1990 saliva and blood samples to now be tested.
No application was made by the prosecutor for an adjournment on the basis that the accused did not give notice under s 96(3)(c) of the Criminal Procedure Act 2004 of factual elements of the offence that the accused contended could not be proved.

The evidence of the complainant as to identity

The complainant gave inconsistent evidence about the names of the males involved in the incident. In her evidence‑in‑chief, the complainant said:
1.She had not previously met the other female or the two males.
2.The ethnic background of the two males was Aboriginal.
3.The girl's boyfriend was named Johnny and the other male was known as Finky. Both the girl and Johnny called him by that name.
4.Neither the other girl nor the male indicated to her that the accused's name was Ivan.
5.Finky was older than she was, but young looking.
In cross‑examination, the complainant said:
6.Since that day in 1989, she has not met Finky Eades.
7.In 1989, she knew that the surname of the two males was Eades.
8.When she gave her statement to the police in 1989, she said:
All I knew about them was that their last name was Eades. I can't remember their first names.
9.She agreed that what she told the police in 1989 was the truth.
10.In 1989, she thought she knew the offender as Finky Eades, but she was not quite sure if she knew his surname.
11.In respect of the offender's identity:
Other people have told me that – who – who he was.
Without me knowing who he is.
Without me knowing his real name.
12.From her memory, the surname of the two males was Eades. She probably did know their Christian names, but she may have forgotten to say them. She did not know.

The complainant referred to the offender as Finky when she gave the police a statement in 2016.
Detective Sergeant David Palmer gave evidence that in early 2016, the complainant gave police the name of Ivan Eades, which led to the printout of the 'Person Summary' referred to above. Further, the first time the complainant referred to Finky Eades was in her statement made on 31 May 2016.
My finding is that at the time the complainant gave her first statement shortly after the alleged offending, she only knew the surname of the two males as Eades, but since then and prior to 2016 when she gave her second statement, other people have told her the names Ivan and Finky. The complainant herself however, did not then take that information to the police. Rather, the police came to her as part of the cold case review.
Although it was not pursued in detail, the probability is that the complainant learned of the names Finky and Ivan from sources within her community. As such, her evidence naming the offender is hearsay and should be rejected. However, her evidence as to the surname of the offender as Eades remains intact and should be accepted beyond reasonable doubt. There is no reason to suggest that she would not have learnt the surname of the two males on 28 October 1989. However, this does not prove the issue of identity.
In summary, the complainant cannot identify her offender.
It follows that the State has not proved the element of identity either singularly through the DNA evidence or from the complainant or a combination of both. However, in case I am wrong, I will otherwise proceed with the matter.

Complaint and distressed condition

After the alleged offending, the complainant ran to a nearby home. She was granted access to that home by the occupant thereof, who is now deceased. Following that access, the police attended at that home. The attending police officers were former Constable Decima-Rae Claite and First Class Constable James Hill.
A complaint was made by the complainant to Constable Claite of an assault by a male Aboriginal. A complaint of sexual assault was made by the complainant to Constable Hill.
The facts that the complainant ran from the town house, sought refuge in another home to which the police were called and that the police officers who attended at that home received a report of assault or sexual assault from the complainant does not add to the truthfulness of the complainant's evidence. Those facts are not proof that the conduct complained of did occur. They do however, show consistency of conduct by the complainant. In judging her credibility and the truthfulness of her evidence, it can be seen that she acted in a way which might be expected of a teenager in her position to act after the matter of which she has given evidence.
The complainant was examined at the Sexual Assault Referral Centre by Dr Burgar who gave evidence that the complainant looked embarrassed, had her head downcast and was in shock, which Dr Burgar found to be not unusual in the alleged circumstances. As the interview progressed, the complainant was able to relax more.
Dr Burgar gave evidence of what might be generally described as the distress of the complainant following the alleged sexual penetration. Again, this is an aid to assessing the credibility of the complainant, indicating that her distress was consistent with the matter complained of and so it buttresses or bolsters her credibility.
It was put to the complainant in cross‑examination that she feared the consequences of her boyfriend ascertaining that she had had consensual sex with another man. However, the complainant dismissed that suggestion and I accept her evidence of that.

Was the sexual penetration by the accused without consent?

Mr Owen made submissions attacking the credibility of the complainant as a witness of truth. This is important when dealing with the issue of consent. However, before proceeding to deal with these submissions and the complainant's evidence in general, it is necessary to have regard to Longman as referred to above.

Longman direction

In this case, the only witnesses who can speak directly about the alleged offending are the complainant and the accused. Sex cases are usually in private between two persons, namely the complainant and the offender.
The State case as to consent stands or falls on the complainant's evidence. She is the only witness to give direct evidence as to the happening of the matter complained of. Whilst there has been other evidence of surrounding circumstances on 28/29 October 1989, no‑one has corroborated the complainant's evidence as to the occurrence of the alleged offence itself.
Accordingly, there must be satisfaction beyond reasonable doubt as to the truthfulness, accuracy and reliability of the complainant's evidence before making a finding that the accused sexually penetrated her without consent. Her evidence needs to be scrutinized with special care in order to assess her truthfulness, accuracy and reliability and in this regard, the delay from the happening of the alleged offence in October 1989 needs to be borne in mind, particularly with regard to the accused's arrest at some unknown time, but probably in 2016 and then, this trial in 2017, notwithstanding police taking him to State Health Laboratory Services on 6 June 1990 to provide a blood and saliva sample for examination purposes. Presumably, he was then told of the allegation against him, but there is no evidence of that.
This delay makes greater the possibility of error in recollection of the incident which gives rise to the alleged offence. The passage of time does make it more difficult to accurately recall a particular incident with detail and it also increases the possibility of factual errors being made when a person is describing an incident which occurred sometime in the past. Accordingly, it is necessary to consider this carefully when looking at and considering the truthfulness, accuracy and reliability of the complainant's evidence. Human memory is fallible. The longer the delay, the more opportunity there is for error.
It is a matter of common experience that the longer a person believes something to have happened, the more convinced the person is that it has happened. This can be so even if the person is mistaken in his or her recollection. Even honest witnesses can be wrong in their recollection.
The longer the delay between the alleged incident giving rise to this charge, Mr Eades being arrested and this trial, the more difficult it is for evidence relating to the incident to be fully tested by Mr Eades.
The delay, coupled with the lack of factual precision about matters surrounding the alleged offence, makes it more difficult for Mr Eades to examine in detail the circumstances of the alleged offence, although in this case he has denied everything and he did provide biological samples for testing in 1990. However, the delay still places him at a disadvantage in testing the complainant's evidence as to surrounding circumstances and details which, whilst not necessarily of significance themselves, may help to indicate whether the complainant is or is not truthful, accurate and reliable.
Because of the passage of time from the alleged offence, and the provision of samples of blood and saliva to trial which, in this case is 27 ‑ 28 years, it is difficult for the accused to be able to recall accurately surrounding circumstances as to dates and times so as to challenge the complainant's allegation. Even the complainant has obvious difficulties recalling events. There are, for example, matters not included in her 2016 statement which she is now able to recite, but only by reason of having refreshed her memory from her 1989 statement.
Further, the female met by the complainant at a bus station was not willing to provide a statement to the police. Her then boyfriend and the lady in the home where the complainant sought refuge after the alleged offence are now both deceased.
Further still, had the complaint been known immediately, it might have been possible for Mr Eades to obtain evidence from the owner of the town house, who was not present at the time of the alleged offending. That evidence might have related to the ownership of the Walkman and the jacket lying on the floor in the bedroom where the alleged offending took place. If such evidence could have been obtained that those items did not belong to the complainant then, that might explain why she left the town house without taking them with her, rather than the complainant taking flight from the town house, without her Walkman and jacket, and seeking refuge by reason of the alleged offending, which tends to support the State's case.
Another difficulty is that the original police file has been either lost or destroyed. Hence, Mr Eades has not been able to examine it and ascertain whatever information might have been contained therein with a view to defending himself.
By reason of the delay, the accused has been denied the chance to assemble, soon after the incident is alleged to have occurred, evidence as to what he and other potential witnesses were doing when, according to the complainant, the offence allegedly happened.
This is a real and apparent forensic disadvantage, even if it was only the loss of a chance or an opportunity to investigate. There are two aspects to the forensic disadvantage, being the loss of a chance to adequately test the complainant's evidence and to adequately prepare a defence.
Had the complaint been made known to the accused soon after the alleged incident, it would have been possible for him to explore the pertinent circumstances in detail at that time, and perhaps to gather, and to look to call at trial, evidence throwing doubt on the complainant's evidence or confirming his denial. These opportunities have now been lost by the delay. However, it is likely that Mr Eades knew of the alleged offending given that he was taken to the State Health Laboratory Services in June 1990 to provide blood and saliva samples for investigation.
The accused may have been able to have obtained alibi evidence.
The fairness of the trial as the proper way to prove or challenge the accusations has necessarily been impaired by the long delay. Accordingly, I must take these circumstances into account when assessing the complainant's evidence. As mentioned, the only direct evidence produced by the State as to the commission of the offence without consent is that of the complainant herself, such that the State case relies totally on her evidence and my assessment of her truthfulness, accuracy and reliability. The fact that the alleged offence occurred some 28 years ago, when the complainant was only 14 and comparatively young, must be taken into account.
The passage of time is a factor in people's recollection of events and memory and recollection often dims with the passage of time. This must therefore be considered with respect to the truthfulness, accuracy and reliability of the complainant's recollection of events and whether I can safely act upon her evidence regarding events going back to 1989.
Taking these factors into account, it would be dangerous to find the accused guilty unless, having carefully scrutinized the complainant's evidence with great care and caution and having paid due regard to it and applying the matters outlined above, I am satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of her testimony. If so satisfied, then I can make findings based on her evidence, which need not be corroborated.

Defence submissions as to the credibility of the complainant

Mr Owen submitted that on the afternoon/night in question, the complainant had consumed alcohol which must have affected her ability to recall events, as might the mental problems she said she had and in any event, there were things she was simply not able to remember.
It is true, that, on the afternoon/night in question, the complainant had consumed alcohol. She acknowledged that, even at age 14, she was 'a little bit drunk', but also she said that she 'wasn't that drunk'. The complainant also indicated she had suffered mental problems, however nothing was particularized other than this bald statement. She also accepted that she was unable to remember things, now some 28 years after the alleged offending.
Nothing from these matters has been shown to have affected the complainant's credibility, including her reliability and accuracy as a witness about the matters which she said she could recall, or as to which, she said her memory was refreshed from her 1989 statement which had previously been lost, until recently. However, prior to giving her evidence, the complainant was proofed. By this time, a copy of her 1989 statement had been located and provided to her. This statement was taken at approximately 1.20 am on 20 October 1989 by Constable Claite, who attended at the home in which the complainant took refuge as previously outlined.
It was also submitted that, in general, the complainant gave evidence in assisting the State when she gave her evidence-in-chief. However, she was feisty, resisting, upset and hostile when cross-examined.
That the complainant assisted the State when giving her evidence‑in‑chief, but was feisty, resisting, upset and hostile when being cross‑examined is not only to be expected, but it is frequently seen from victims in sexual assault cases. That simply is the nature of the adversarial system when propositions are put with which complainants disagree. It is also to be remembered that sexual offending is extremely personal to victims who react quite strongly to suggestions that the offending did not occur. These matters do not detract from the truthfulness, accuracy or reliability of the complainant. Indeed, the manner in which the complainant resisted cross‑examination, made concessions where appropriate and said she did not remember certain matters or had refreshed her memory from her 1989 statement, demonstrates her truthfulness and reliability.
As part of her evidence, the complainant alleged that matters not included in her 2016 statement, including that:
(a)she was threatened and forced to go upstairs into the bedroom to have a sleep and lie down; and
(b)after the alleged sexual penetration, she could only go to the toilet with the accused following her to make sure that she did not leave the town house.
Mr Owen submitted that if the complainant had truly received threats in the town house to go upstairs, lie down and sleep and if her arm was taken to force her upstairs, then she would have remembered to include these matters when she gave her statement to the police in 2016. Further, she would have remembered to include in that statement her desire to go to the toilet in an endeavour to escape.
These matters were detailed in her 1989 statement, and so, Mr Owen submitted there must now be suspicion about her first statement and her evidence by reason of these matters not being referred to in her later statement. The complainant has effectively refreshed her memory from her earlier statement. It cannot be accepted that she made up this evidence, even if she had forgotten it in 2016.
However, the complainant spoke positively from memory about being held down for sexual penetration and her resistance thereto. Her evidence about escaping was in a similar vein.
Another matter arising from the two statements is that the complainant did not refer to going to her auntie's place to fetch her yellow Walkman in her 2016 statement. She could not recall this when first giving her evidence‑in‑chief.
However, her 1989 statement indicates that she did go to her auntie's house to collect her Walkman. Further, there are photographs in evidence of a yellow Walkman in the bedroom where the alleged offending occurred. This is consistent with her evidence. Again, it appears that the complainant has refreshed her memory from her original statement in this regard. This does not diminish her credibility.
Mr Owen submitted that in her evidence-in-chief, the complainant made no mention of taking her jacket off and that, from photographs in evidence, she was unable to identify the jacket on the floor in the room where she alleged the sexual penetration occurred.
An item of clothing consistent with a blue jacket can be seen in photographs of the bedroom in which the alleged offending is said to have occurred. In cross‑examination, the complainant said she was wearing such a jacket earlier in the evening and that she had a jacket the same as that in the photographs. There is no reference to the complainant wearing a jacket when her clothing was seized at the Sexual Assault Referral Centre and so, it is likely that her jacket remained at the town house after the alleged offending and that that jacket is the jacket seen in the photographs tendered into evidence.
The fact that initially, the complainant did not give evidence-in-chief as to the reason why she had gone to her auntie's home or that the Walkman and the jacket in the photographs were hers does not detract from her evidence as to the offending itself.
Mr Owen submitted that the complainant gave inconsistent evidence about the purchase or stealing a bottle of whisky or two bottles of Bundaberg Rum. In cross‑examination, she simply said that her evidence‑in‑chief about this may have been wrong.
Any indecision by the complainant in evidence about whether the female she met that day stole or purchased either a bottle of whisky or two bottles of Bundaberg Rum does not detract from her evidence as to the alleged offending. The complainant was only 14 years of age at the time. For that reason, it is likely that she would have made herself scarce in the bottle shop. Nothing turns on this.
Mr Owen submitted that the complainant must have been happy to engage in drinking and socialising at a park with the other female and the two males before going to the town house. However, when she was cross‑examined, she gave evidence that she was not having a good time, such that it was submitted that she then tailored her evidence to suit her false claim of a sexual assault.
Underpinning Mr Owen's submission is the fact that the issue of consent to sexual penetration should be considered in the context of this occasion involving socialising and alcohol being consumed by four people at a park. If the complainant was not happy, then she would not have gone to the town house. However, she did. Mr Owen's submission is that there was nothing anomalous about the progress of the evening. He suggested to the complainant that it simply led to consensual sex, but the complainant rejected this emphatically.
In cross‑examination, the complainant agreed that she could have left the park if she was unhappy. This was not therefore a witness who was being feisty simply to be disagreeable in cross‑examination. Rather, it is more of an introspective comment by the complainant that she could have prevented her later misfortune.
However, it is appropriate to remember that this matter involved a 14‑year‑old complainant. The offender was older than the complainant. The ages of the other female and male are not known and although there is no onus on the accused to prove anything in this trial, it cannot be said that this socialising and consumption of alcohol creates a reasonable doubt as to the complainant not consenting to sexual intercourse.
Mr Owen also submitted that the injuries noted by Dr Burgar are inconsistent with the complainant's account of how those injuries were inflicted.
However, the fact that the complainant gave a description of how she says she was handled by the offender when she was bundled up the stairs and when she was held down during the alleged offending and which injuries do not match the description from Dr Burgar of how they were inflicted does not mean that her evidence should be discounted. The fact is that she did have scratches and bruising on her arm in the area she identified as being where the offender took hold of her. She did not give evidence of him scratching her. It is not suggested that the bruising and scratches pre‑existed the alleged offending. Indeed, the bruising is consistent with timing insofar as bruises can be aged. Again, these matters do not detract from the complainant's denial of consent.

Mr Owen also referred to the complainant's prior inconsistent statements. In my view, there were no such prior inconsistent statements. The complainant gave evidence about matters not detailed in her 2016 statement. This does not demonstrate prior inconsistencies as such. Rather, there were additional matters about which the complainant gave evidence that are not included in her 2016 statement. However, those matters were in fact referred to in the complainant's 1989 statement as outlined above. That 1989 statement has then refreshed the memory of the complainant shortly prior to trial and she has given evidence consistent therewith.
It is her evidence in court to which attention is to be given. The fact that there may be some prior inconsistencies, if any, in her evidence, which are more in the form of additional information to the 2016 statement, is a matter which may be taken into account in assessing her credibility. The real reason for her omissions in the 2016 statement might be lapse of memory after 27 years on matters which, whilst of importance in terms of surrounding events, do not go to the issue of the alleged penetration without consent. As the complainant said, she has tried to forget about these matters. It is not however a reason to discount her evidence as to penetration without consent.

Finding as to credibility

The complainant was a witness of truth. She did the best she could. She admitted there were things she could not recall and that she had refreshed her memory from her 1989 statement to police. This is not likely from a witness looking to embellish her evidence.
Overall and bearing in mind the Longman direction, the complainant's evidence was truthful, accurate and reliable and in particular, with respect to the issue of consent. Her escape from the town house seeking refuge is consistent with her complaint soon after the alleged offence and is bolstered by her distressed condition. The matters raised by the defence do not reveal a reasonable doubt on the issue of consent.

The circumstance of aggravation

The alleged circumstance of aggravation as to the complainant's age was not challenged. Her date of birth is 20 April 1975, and so she was 14 years of age at the relevant time.

Some other matters

During cross‑examination of the complainant, Mr Owen suggested to the complainant that she engaged in consensual sex. She refuted this. In discussion at the end of the trial, Mr Owen indicated that he had instructions to put such matter to the complainant.
For the sake of clarity, I do not rely on this line of questioning, even though inferences can be drawn from the conduct of the defence case by the accused's counsel, so long as due regard is had to the requirement of fairness and the possibility of human error – The State of Western Australia v Wood [2008] WASCA 81 [23]. Fairness might dictate the possibility that the accused could call a witness other than himself to say that that witness had consensual sex with the complainant on the evening in question.
Further, I pay no regard to the reference to Finky or Finkie in the exhibit being a 'Person Summary' held by the police relating to the accused. This is a document created by police officers concerning the accused which may be added to from time to time. It contains information relevant to Mr Eades, including various names by which he is known to the police, or perhaps others. It is not known by whom or when this information as to 'Finky' and 'Finkie' was added. It might have been during the course of this investigation, such that by s 79C(4) of the Evidence Act, such document should be excluded.

Findings

The element of the offence as to identity of the offender has not been proved beyond reasonable doubt. Had the State proved beyond reasonable doubt that it is the accused's DNA, which is the subject of the PathWest database for comparison with the DNA obtained from the crutch areas of the complainant's underpants and tracksuit pants, then the element of identity would have been proved beyond reasonable doubt. The other elements of the offence namely, that the complainant was sexually penetrated without her consent, and the circumstance of aggravation, have been proved beyond reasonable doubt.

Conclusion

The accused must be found not guilty.

NAME	BARCODE	DATE OF BIRTH
Ivan Geoffrey Eades	DNA 8058102	23/6/1965