The State of Western Australia v Filmer
[2020] WADC 72
•18 MAY 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- FILMER [2020] WADC 72
CORAM: LEVY DCJ
HEARD: 11-12 MAY 2020
DELIVERED : 18 MAY 2020
PUBLISHED : 5 JUNE 2020
FILE NO/S: IND 805 of 2018
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
DAVID MICHAEL FILMER
Catchwords:
Criminal law - Trial by judge alone - Aggravated indecent assault - Consent - Aggravated burglary - Aggravated sexual penetration - Deprivation of liberty - Threats to kill - Family and domestic relationship - s 24 honest and reasonable mistake - Inferences - Distress - Liberato direction
Legislation:
Criminal Code (WA), s 24, s 324, s 326, s 333, s 338B(a), s 401(2)(a)
Criminal Procedure Act 2004 (WA), s 118, s 119, s 120
Evidence Act 1906 (WA), s 32, s 36BC, s 106P
Restraining Orders Act 1997 (WA), s 4
Result:
Verdicts of not guilty and acquittals directed in relation to counts 1, 2, 3, 4, 5, 6, 7, 8 and 10
Verdict of guilty on count 9 and conviction entered
Representation:
Counsel:
| The State of Western Australia | : | Mr L Hobson |
| Accused | : | Mr S Watters |
Solicitors:
| The State of Western Australia | : | Director of Public Prosecutions (WA) |
| Accused | : | Griffiths Rice & Co |
Case(s) referred to in decision(s):
Braysich v The Queen [2011] HCA 14; (2011) 243 CLR 434
De Silva v The Queen [2019] HCA 48; (2019) 94 ALJR 100
Drago v The Queen (1992) 8 WAR 488
Green v The Queen (Unreported, WASCA, Library No 950592, 8 November 1995)
Harkin v The Queen (1989) 38 A Crim R 296
Higgins v The State of Western Australia (2016) A Crim R 475; [2016] WASCA 142
Jeffery v The State of Western Australia [2009] WASCA 133
Monforte v The Queen [2018] VSCA 277
Mount-Batten Owen v The Queen (Unreported, WASC, Library No 940744, 19 May 1995)
Petty v The Queen (1991) 173 CLR 95
R v Cordell [2009] VSCA 128
R v Knutsen [1963] Qd R 157
R v R P Anderson [2001] NSWCCA 488; (2001) 127 A Crim R 116
RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67
WCW v The State of Western Australia [2008] WASCA 232
Whitsed v The Queen [2005] WASCA 208
LEVY DCJ:
David Michael Filmer (the accused) stands charged on indictment 805 of 2018 dated 25 October 2019 with 10 offences pursuant to the Criminal Code (WA) (the Code). The alleged offences are as follows:
Count 1:
On 28 February 2016 he unlawfully and indecently assaulted M by rubbing his penis against her groin
And he was in a family and domestic relationship with M.
Count2:
On 18 March 2016 at Joondanna he, while in the place of M without her consent, committed the offence of aggravated sexual penetration without consent
And that immediately before the commission of the offence he knew or ought to have known that there was another person in the place
And that the place was ordinarily used for human habitation.
Count 3:
On the same date and at the same place as Count (2) he sexually penetrated M without her consent, by introducing his penis into her mouth
And that he was in a family and domestic relationship with M.
Count 4:
On the same date and at the same place as Count (2) he sexually penetrated M without her consent, by introducing his penis into her mouth
And that he was in a family and domestic relationship with M.
Count 5:
On the same date and at the same place as Count (2) he sexually penetrated M without her consent, by penetrating her vagina with his penis
And that he was in a family and domestic relationship with M.
Count 6:
On the same date and at the same place as Count (2) he sexually penetrated M without her consent, by penetrating her vagina with his penis
And that he was in a family and domestic relationship with M.
Count 7:
On the same date and at the same place as Count (2) he sexually penetrated M without her consent, by penetrating her vagina with his penis
And that he was in a family and domestic relationship with M.
Count 8:
On 24 March 2016 at Joondanna he, while in the place of M without her consent, unlawfully detained M
And that immediately before the commission of the offence he knew or ought to have known that there was another person in the place
And that the place was ordinarily used for human habitation.
Count 9:
On the same date as Count (8) at Joondanna and elsewhere he unlawfully detained M.
Count 10:
On 6 April 2017 at Joondanna he made a threat to unlawfully kill M.
Trial by judge alone
On 15 April 2020, Wager DCJ (as she then was) ordered that the trial of the charges on the indictment be by judge alone, pursuant to s 118 of the Criminal Procedure Act 2004 (WA).
Section 119 of the Criminal Procedure Act requires me to apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury. If any written or other law requires information or a warning or instruction to be given to the jury in certain circumstances or prohibits a warning from being given to a jury in certain circumstances, then I must take that requirement or prohibition into account if those circumstances arise in the course of the trial.[1]
[1] Criminal Procedure Act s 119(3).
Section 120 allows me to make any findings and give any verdict that a jury could have made or given if the trial had been before a jury and requires me to include in my judgment the principles of law that I have applied and the findings of fact on which I have relied.
Overview of the trial
The trial before me commenced on 11 May 2020 when the accused was arraigned on the indictment. He pleaded not guilty to all 10 charges.
Mr Hobson represented the State of Western Australia. Mr Watters appeared as counsel for the accused.
Counsel for the State, Mr Hobson, made an opening address outlining the State's anticipated case.
Counsel for the accused, Mr Watters, made a brief opening during which he made it clear that the accused denied committing any of the offences. The accused, through his counsel, made a formal admission[2] that at the time of these events he was in a 'family and domestic relationship' with M.[3] This circumstance is relevant to counts 1, 3, 4, 5, 6, and 7 on the indictment.
[2] Evidence Act 1906 (WA) s 32.
[3] ts 169.
The trial, save for my reasons and verdicts, was of short duration and was completed in two days. The evidence comprises:
1.the evidence of M, the complainant, which was pre-recorded at a special hearing before Burrows DCJ on 22 November 2019;
2.a statement of Detective Senior Constable Rulan Kate Carr which was read in by consent; and
3.an edited version of the electronically recorded interview conducted by police officers, Detective Carr and Detective Constable Lee Burgess with the accused on 26 March 2016 (exhibit 1). The editing was done with the consent of the accused. The interview was also tendered by the State with the consent of the accused.
Overview of the State's case
M met the accused in January 2015.
Shortly after meeting, the accused moved into M's house in Joondanna. They developed a relationship which included a sexual relationship. The nature of the relationship meant that it was, as defined by the Code, a 'family and domestic relationship' for the purposes of counts 1 to 7 on the indictment.
M is a type 1 diabetic and suffers from significant health issues including renal failure. These issues existed at the time of these events.
The relationship became an 'on again, off again' relationship whereby M would sometimes ask the accused to leave her home, and then allow him to return.[4]
[4] ts 162 - prosecutor's opening.
The State's case is that, although in the early stages of their relationship the accused acted compassionately towards M, as the relationship continued he became progressively more violent towards M. This resulted in M seeking and obtaining violence restraining orders (VROs) against him. The State concedes that on occasions these orders were later cancelled on M's application. The State also concedes that following the revocation of the VRO, M would permit the accused to resume living with her.
Count 1 on the indictment is alleged to have occurred on 28 February 2016 at M's home in Joondanna. The State alleges that M was asleep on her bed, lying naked on top of the covers. She awoke to find the accused standing over her. The State alleges the accused placed his hand over her neck, and squeezed the side of it. On the State's case, the accused got on the bed and straddled her. He was clothed at the time. The State alleges that he yelled at her and blamed her for him being unemployed. The State alleges that the accused deliberately pressed his penis against her pelvic area and groin and repeatedly said 'You want it, don't you?' The offending only stopped when the accused was interrupted by one of M's dogs jumping on the bed.
The State alleges that M took the opportunity to call the police when the accused went to the kitchen.
In the middle of 14 March 2016, M underwent a medical procedure relating to her diabetes related ailments. The operation was performed at a hospital. Upon her discharge, the accused met M in the hospital carpark. He and M then travelled by car to M's home. The accused stayed at M's house that evening. Thereafter, he left the house and did not return for a couple of days. The State concedes that the contact between M and the accused in the period between meeting her at hospital and leaving for a couple of days was consensual.
The State alleges that counts 2 to 7 were all committed on 18 March 2016. Again, these offences are alleged to have occurred at M's home.
On 18 March 2016, was lying down resting on her bed. Shortly after hearing a noise, she saw the accused in the living room. The State alleges that after a brief argument between M and the accused about money, the accused yelled at M to get in the bedroom. M complied with the accused's demand. She went into the bedroom, followed by the accused. The State's case is that despite M telling the accused that she was still sore from the operation and had her period, the accused told her to open her mouth and then put his penis in it. The State alleges that the accused then grabbed M's head and pulled it towards his penis. This occurred whilst M was on the bed. These acts relate to count 3 on the indictment.
Following this, the State alleges that the accused told M to kneel on the floor and then re-inserted his penis into her mouth. This constitutes count 4 on the indictment.
The State alleges that the accused then sexually penetrated M on three further occasions by inserting his penis into her vagina. Each of these acts was performed whilst M was on the bed. These acts relate to counts 5 to 7 on the indictment.
The State alleges that the accused was in M's house without her consent. Furthermore, the State alleges that even if the accused had an implied or express consent to enter the house, prior to the first act of sexual penetration M told the accused to leave the house and that thereafter he was in her home without her consent. The State also alleges that each act of sexual penetration was without M's consent.
The State alleges that after the final act of sexual penetration (count 7), the accused left the bedroom. At that stage M took the opportunity to again call the police.
Count 2, also alleged to have occurred on 18 March 2016, relates to the allegation that each of the acts amounting to an offence of aggravated sexual penetration occurred whilst the accused was in M's house without her consent.
Counts 8 and 9 are alleged to have occurred on 24 March 2016. On that day the State alleges the accused came to M's house in the early morning. The State alleges the accused told M to stay in her bedroom, then hid inside the house.
By count 8, the State alleges that the accused, having entered M's house without her consent, unlawfully detained her inside the house. This, on the State's case, occurred in circumstances including a time when police officers attended her home and attempted to make contact with M. The State alleges that the accused threatened M and her pets with harm and unlawfully prevented her from leaving the house. This includes detaining her and preventing her from answering the door to police when they attended that day.
In relation to Count 9, the State alleges that the accused unlawfully detained M both inside her home and elsewhere. The State alleges that the accused forced M to drive him to certain places. The State alleges that M was unlawfully detained by the accused for a period of time covering both inside the house and at various other places during the day.
The State's case on count 10 is particularised as having occurred on 6 April 2017 at Joondanna.[5] The State's case is that on that day the accused phoned M and wanted her to give him money. M refused. The State alleges that during a phone call with M the accused said to her 'I will kill you'.
[5] Indictment 608 of 2018, count 10.
Overview of the defence case
The accused's case is that he and M were in a relationship in the period between January 2015 and April 2016. He accepts that 'there was a degree of volatility in the relationship'.[6] He accepts that he and M argued on occasions and that led to M taking out violence restraining orders against him. These orders however, were short‑lived. He would subsequently return to M's house to live and resume their relationship. This included consensual sexual relations.
[6] ts 168 - defence opening.
The accused's case is that he was never violent towards M. On the contrary, on his case he physically cared for and loved M. On the accused's case, M's applications for VROs was unjustified and that she used the police as a weapon against him.
The accused's case is that all sexual acts between the accused and M were consensual (counts 1 and 3 to 7). On the accused's case, at all relevant times he had M's consent to be in her house (aggravated burglaries on counts 2 and 8). He denies unlawfully detaining M (element of count 8 and offence on count 9). He denies ever threatening to kill M (count 10).
In relation to the question of 'consent', the accused's defence also raises the question of whether or not the State can negative the defence of honest and reasonable mistake of fact pursuant to s 24 of the Code beyond reasonable doubt.
In his opening address, counsel for the accused said:[7]
[a]nd of course what we say is in relation to the applicability of section 24 of the Code, our case is that any acts of sexual intercourse between them or sexual penetration between them were consensual and we say that the evidence will show that [the accused] had an honest and reasonable but mistaken belief at least that the acts of sexual penetration were consensual.
In other words, the accused says that the State cannot prove that at the relevant time he did not honestly and[8] reasonably believe that M was consenting to the sexual acts alleged.
[7] ts 168 - defence opening.
[8] The State does not need to negative both factors. The State will have negatived the defence of mistake if it proves either that he did not honestly hold the belief, or that such belief was not reasonable in the circumstances.
The question of consent is relevant to counts 1 to 8 in different ways. In relation to count 1, consent is relevant to the question of whether any proved assault was done without consent.
In relation to count 2, the State is required to prove that the accused did not have consent to be in the place.
In relation to counts 3 to 7, the absence of consent is an element of each alleged aggravated sexual penetration. The question of consent is therefore relevant to count 2 in two separate and distinct ways.
The State is also required to prove the absence of consent in relation to the alleged aggravated burglary on count 8.
The accused's case, as it ultimately unfolded, also relies upon the defence of honest and reasonable mistake of fact pursuant to s 24 of the Code in relation to counts 1 to 8 with respect to the issue of consent.
On 26 March 2016, the accused was arrested by police and later participated in an electronically recorded interview conducted by Detectives Carr and Burgess (the interview). During that interview, the accused made various admissions including being in a sexual relationship with M; attending her home at various times; being in the home at relevant times; and engaging in sexual intercourse with M on or about 18 March 2016. The accused denied that any act of sexual penetration had occurred without M's consent. The State tendered the accused's interview with police as part of its case and relies upon some of the accused's admissions. The accused relies upon his account in the interview. His interview covers counts 1 to 9 on the indictment. Count 10 is alleged to have occurred at some time after the interview.
General legal principles that apply
The accused has been charged with ten separate offences. As I am sitting alone as a judge, I must apply the law to the facts as I find them to be.
The accused is presumed to be innocent of all the charges brought against him. Any person who stands trial is presumed to be innocent. The presumption of innocence can only be removed by a guilty verdict. I cannot find him guilty unless I am satisfied of his guilt beyond reasonable doubt.
The burden of proving each count is on the State. The accused bears no burden of proof.
The standard to which the State must prove the charge is beyond reasonable doubt. Beyond reasonable doubt is a high standard. It is the highest standard known to the law. If I have a reasonable doubt as to whether the accused person is guilty of the count that I am considering, then it is my duty to acquit.
The accused elected not to give evidence or call any evidence in his defence. The right to silence is a fundamental right that every accused has. No adverse inference can be drawn against the accused by reason of him exercising that fundamental right.[9]
[9] Pettyv The Queen (1991) 173 CLR 95, 97.
The accused has been charged with ten offences in this trial. I must look at each charge separately and make a decision on each charge separately. When I am considering whether the State has proved a charge, I must consider only the evidence that is relevant to that charge. My verdicts do not have to be the same on each charge. If I find the accused guilty of one charge, it does not follow that he is therefore guilty of another charge.
I must reach my verdicts on all of the evidence adduced in this trial. I must consider the evidence objectively and dispassionately. I cannot allow myself to be influenced by prejudice or by sympathy. Nor can the consequences of any findings of guilt be considered when determining whether or not I am satisfied that the accused is guilty of any count on the indictment.
As already noted, in this case M's evidence was taken and recorded at a special hearing. That recording was played during the trial and formed her evidence. The giving of evidence in this way is a routine practice of the court. I cannot draw any inference as to the guilt of the accused from the court's use of this routine procedure.[10]
[10] Evidence Act s 106P.
When I consider the evidence, I cannot guess or speculate or look for theories not supported by the evidence. I may however draw inferences from facts. An inference is a logical deduction or conclusion from facts. I can only draw inferences from facts which I have in the first place found to be established.
As this is a criminal trial, before I draw an inference, or come to a conclusion against the accused, I must be satisfied that it is the only reasonable inference or conclusion that can be drawn consistent with the proven facts.
In relation to the facts from which the State may ask me to draw an inference, I must not consider those facts in isolation, but rather consider them as a whole to determine whether the inference of guilt is the only inference reasonably available.
The circumstances which I find to be established must be such as to exclude every reasonable inference consistent with the innocence of the accused.
I cannot draw an inference that an accused person is guilty of the offence with which he has been charged unless the evidence is inconsistent with any reasonable conclusion other than that the person is guilty of that charge.
I may accept the evidence of a witness in its entirety, or reject it in its entirety. I may accept part of a witness' evidence and reject other parts of that witness' evidence.
In this case, I have received evidence from three people in three different forms. First, M's evidence via the pre-recording. Secondly, the statement of Detective Carr read in by consent. Thirdly, a DVD containing the edited version of the interview conducted with the accused by investigating police officers, Detectives Carr and Burgess.[11]
[11] Exhibit 1.
Noting that the accused bears no burden of proof, the credibility of both M and the accused is central to the issues in this case.
Although the accused elected not to give evidence, as already noted, he participated in an interview with investigating police officers which was tendered by the prosecution. Consequently, it is evidence in the trial. I may form views as to the credibility and reliability of the accused from that interview, bearing in mind that that the accused is presumed to be innocent and bears no onus of proof.
I may also take into account, when considering what weight if any to give to what the accused said to police in that interview, that the accused's answers to questions put to him in that interview were not on oath. The question of a 'Liberato direction' is dealt with below.
Elements of the offences
The date and place particularised on each count is not an element. The State is not required to prove the date and place beyond reasonable doubt.
To prove each of the charges on the indictment, the State must prove each and every element of the offence beyond reasonable doubt. Proof that the offence was committed by the accused, and not some other person, is an essential element on each count of the indictment (the element of identity). The identity of the alleged offender, namely the accused, is not in issue in this trial.
Any further reference in these reasons for the need for the State to prove an element means to the standard beyond reasonable doubt.
In addition to the element of identity, the further elements required to be proved by the State and relevant to each count are set out below.
Count 1: Aggravated indecent assault allegedly committed on 28 February 2016 (s 324 of the Code)
Chapter XXXI of the Code sets out sexual offences. Count 1 is a charge brought pursuant to s 324 of the Code.
Section 324 provides:
A person who unlawfully and indecently assaults another person in circumstances of aggravation is guilty of a crime and is liable to imprisonment for 7 years.
First, the State must prove that the accused assaulted M.
The assault in relation to count 1 is alleged to have occurred in circumstances where, whilst straddling M and squeezing her neck, the accused pressed his penis against M's pelvic area and groin and repeatedly said things like 'You want it, don't you?'
The term 'assaults' found in s 324 is not defined in ch XXXI. The term 'assault' however, is defined in s 222 in ch XXVI and relevantly includes 'where a person touches or otherwise applies force of any kind to the person of another, either directly or indirectly, without their consent'.
Whilst the definition of 'assault' is found in ch XXVI, the definition of 'consent' is found in s 319(2)(a) in ch XXXI and applies to an offence against s 324 of the Code.[12] Section 319(2)(a) defines 'consent' to mean:
A consent freely and voluntarily given and, without in any way affecting the meaning attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit, or any fraudulent means.
[12] Higgins v The State of Western Australia (2016) A Crim R 475; [2016] WASCA 142 [7] (McLure P); [136] (Mazza JA); [166] (Corboy J).
In order for an act to be an assault, it must be a deliberate willed act. An accidental touching would not suffice.
Thus, the deliberate pressing of an erect penis against the pelvic area or groin of another person could constitute an assault.
The accused disputes that he assaulted M.
The second element that the State must prove is that the assault was indecent. The definition of indecent is to be found outside the Code. Something is indecent if it is unbecoming or offensive to common propriety. The conduct must also have a sexual character.[13]
[13] Drago v The Queen (1992) 8 WAR 488, 497 - 498 (Nicholson J, with whom Wallwork J agreed), 503 (Murray J); Harkin v The Queen (1989) 38 A Crim R 296, 301 (Lee J).
The third element that the State must prove is that the assault was unlawful.
Section 223 of the Code provides that:
An assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law.
The application of force by one person to the person of another may be unlawful, although it is done with the consent of that other person.
Despite the law being that an assault 'may be unlawful even if done with the consent of [the person assaulted]', nonetheless in the context of this case, the acts constituting the 'assault' if done with M's consent, would not be unlawful.
Thus, the question of consent is a live issue in relation to count 1.
Count 1 alleges a circumstance of aggravation, namely that the accused was in a family and domestic relationship with M. Like the other elements identified, this too must be proved by the State beyond reasonable doubt. Although the accused formally admitted this circumstance of aggravation at the start of the trial, I cannot convict the accused of the offence pleaded on count 1 unless I am satisfied that this circumstance of aggravation has been proved beyond reasonable doubt. The accused's formal admission is sufficient to find this matter proved.
Nonetheless, I note that s 221 sets out the definition of 'circumstance of aggravation and relevantly includes 'circumstances in which — (a) the offender is in a family and domestic relationship with the victim of the offence'.
Section 221(2) provides that the meaning of 'family and domestic relationship has the same meaning as it has in section4 of the Restraining Orders Act 1997'.
Section 4(1)(f) of the Restraining Orders Act 1997 provides that the term 'family and domestic relationship' means and includes a 'relationship between two persons who have, or had, an intimate personal relationship, or other personal relationship, with each other'.
There is no dispute that the accused and M were, or had previously been, involved in an intimate personal relationship during the period between January 2015 and April 2016. Consequently, there is no dispute that the circumstance of aggravation has been proved beyond reasonable doubt on count 1.
Count 2: Aggravated burglary alleged to have been committed on 18 March (s 401(2)(a) of the Code)
In addition to the element of identity, the State is required to prove the following elements.
First, that he was in the place alleged.
Secondly, that that the place belonged to another.
The 'place' alleged in this case is the house occupied by M. The first and second elements are not in issue in this case. The accused did not take issue with the fact that he was in M's house on 18 March 2016.
Thirdly, that M did not consent to him being in the place. The question of 'consent' is very much in dispute.
Fourthly, that whilst in the place, the accused committed 'the offence of sexual penetration without consent'. Mr Hobson for the State submits that, without the need to identify or particularise which one, proof of any one of the offences on counts 3 to 7 would be sufficient to prove this element. For the reasons that follow, it is unnecessary to determine whether or not the State is required to identify which of the offences the subject of counts 3 to 7 constitutes 'the offence of aggravated sexual penetration without consent' pleaded on count 2.
Counts 3 to 7: Aggravated sexual penetrations alleged to have been committed on 18 March 2016
Each of counts 3 to 7 allege an offence of aggravated sexual penetration committed by the accused against M on 18 March 2016. Each offence is alleged to have occurred whilst the accused was in M's bedroom during a time when the State alleges he did not have consent to be there.
As proof of an act of sexual penetration without consent is required to be proved as an element on count 2, it is necessary to set out the elements to be proved on counts 3 to 7 on the indictment. Each is an offence contrary to s 326 of the Code. Each offence is pleaded identically, save that counts 3 and 4 allege that the accused sexually penetrated M by 'introducing his penis into her mouth', whereas counts 5 to 7 allege that he sexually penetrated her by 'penetrating her vagina with his penis'.
Section 326(1) provides that:
A person who sexually penetrates another person without the consent of that person in circumstances of aggravation is guilty of a crime and liable to imprisonment for 20 years.
In addition to the element of identity, to prove each of counts 3 to 7, the State must prove the following.
First, that the accused sexually penetrated M.
Section 319 of the Code, so far as counts 3 and 4 are concerned, provides that the term 'penetration' includes 'to introduce any part of the penis of a person into the mouth of another person'.
In relation to counts 5 to 7, s 319 provides that penetration includes 'to penetrate the vagina, (which term includes the labia majora) ... with any part of the body of another person'. Furthermore, any degree of penetration is sufficient. The State is not required to prove that ejaculation occurred for there to be penetration.
Consequently, if proved, any of the acts of penetration alleged would amount to a sexual penetration.
Secondly, the State must prove that the penetration was without the consent of the complainant. The definition of consent is set out at s 319(2)(a) of the Code. I have already set that section out above. In the accused's interview with police, he admitted having sexual intercourse with M whilst in her bedroom, however denied that it occurred without consent.
In the interview, the accused did not explicitly admit that his penis was in M's mouth (counts 3 and 4), but did say that all sexual acts were consensual. Consent is very much a live issue in this trial in relation to counts 3 to 7.
In order to prove counts 3 to 7 as charged, the State must also prove the circumstance of aggravation. The circumstance of aggravation is that the accused was in a 'family and domestic relationship' with M. As already noted, that fact is admitted by the accused pursuant to s 32 of Evidence Act. I have already set out the meaning of the term 'family and domestic relationship' above. This circumstance of aggravation is not in issue.
Further circumstances of aggravation on count 2
In relation to count 2, the State also alleges that the offence was committed in two further circumstances of aggravation. These circumstances are not elements of the offence, but like an element must be proved beyond reasonable doubt. These further circumstances of aggravation are:
(a)that immediately before the commission of the offence the accused knew or ought to have known that there was another person in the place; and
(b)that the place was ordinarily used for human habitation.
These circumstances are not in dispute. In relation to the first alleged circumstance of aggravation, there is no dispute that the accused knew or believed M would be in the place. There is no dispute that M was in the place; or that the accused knew she lived there; or that he ought to have known that she would be in the place.
The place was the bedroom in the house that M lived in. There is no dispute that the place was used for 'human habitation'.
Count 8: Aggravated burglary alleged to have been committed on 24 March 2016 (s 401(2)(a) of the Code)
Count 8, like count 2, is brought pursuant to s 401(2)(a) of the Code. Consequently, in addition to the element of identity, the State must prove all of the elements below.
First that the accused was in the place.
Secondly, that the place belonged to another.
Thirdly, that M did not consent to him being in the place.
Fourthly, whilst in the place the accused committed an offence. The offence that the accused allegedly committed while in the place on 24 March 2016 is unlawfully detaining M.
As with count 2, neither the identity of the alleged offender nor the first two elements are in dispute.
The third and fourth elements are in dispute. It is not necessary to repeat the definition of consent set out above. It is necessary to set out what the State is required to prove in relation to the offence of unlawful detention.
Counts 8 and 9: Unlawful detention (s 333 of the Code)
In relation to count 8, the unlawful detention of M is alleged to have been committed 'while in the place of [M]'.[14] It is therefore limited to the events within the house.
[14] Indictment 805 of 2018, count 8.
Count 9 is alleged to have occurred 'at Joondanna and elsewhere'.[15] Consequently, count 9 incorporates the events in the house and elsewhere, including the events that occurred after the accused and M left the house until the point in time that the accused, on the State's case, released M.
[15] Indictment 805 of 2018, count 9.
The offence of unlawful detention, required to be proved in relation to both count 8 and 9, in addition to the element of identity, requires the State to prove that the accused detained M and that the detention was unlawful.
Section 333 of the Code creates the offence of 'deprivation of liberty'.[16] Section 333 provides:
Any person who unlawfully detains another person is guilty of a crime …
[16] Code s 333 - heading.
Section 332(1) of the Code relevantly provides that, for the purposes of s 333:
A person who deprives another person of personal liberty
(a)…………
(b)by confining or detaining the other person in any place; or
(c)in any other manner
is said to detain that other person.
Neither of the words 'confining' or 'detaining' are further defined in the Code.
The ordinary English language meaning of the words 'confine' and 'confinement' include 'to keep in a place; restrict; secure; imprisonment; restriction; limitation'.[17]
[17] The New Shorter Oxford English Dictionary, 1993, page 476.
The word 'detained', in its ordinary English language meaning, includes to: 'place or keep in confinement; keep as a prisoner; keep in a certain place; keep from proceeding; hold back, delay, stop'.[18]
[18] The New Shorter Oxford English Dictionary, 1993, page 650.
Thus, to detain a person in the context of s 333 of the Code means to deprive another person of their personal liberty by confining or detaining them in a place or in some other manner against their will. The detention must be against the will of the person.
A person who is in a place or confined in some way voluntarily, cannot be said to be unlawfully detained.
Whilst it is necessary for the State to prove that M's liberty was taken away from her for some period of time, there is no requirement that the detention be for any particular period of time. Even if it is brief, it can still in law amount to a detention.[19]
[19] Mount-BattenOwen v The Queen (Unreported, WASC, Library No 940744, 19 May 1995), 5 - 6.
The detention is unlawful if it is not authorised or justified or excused by law.[20]
Further circumstances of aggravation alleged in relation to count 8
[20] R v Knutsen [1963] Qd R 157, 162 (Philp J).
In relation to count 8, as with count 2, two further circumstances of aggravation are alleged. They are:
(a)that immediately before the commission of the offence the accused knew or ought to have known that there was another person in the place; and
(b)that the place was ordinarily used for human habitation.
These circumstances are not in dispute in relation to count 8 and have already been addressed, albeit with respect to a different date, in the context of count 2. The accused does not dispute that he knew the accused was in the house before he allegedly committed the offence the subject of count 8.
Count 10: Threat to kill allegedly committed on 6 April 2017 (s 338B(a) of the Code)
Section 338B of the Code provides that:
Any person who makes a threat to unlawfully do anything in s 338 (a), (b), (c), (d) or (e) is guilty of a crime.
Section 338(a) defines a 'threat' to be a statement or behaviour that expressly constitutes or may reasonably be regarded as constituting a threat to kill.
A threat is a statement of a person's intention to punish or hurt someone. In this case the State says the threat made by the accused was to kill M. The words alleged to have been said by the accused to M and relied upon by the State to prove the offence are 'I never hurt or hit you, but I will kill you'.[21]
[21] ts 108.
The State is not required to prove that the accused intended to carry out the threat. However, the words used, when objectively construed, must amount to a declaration of an intention to kill. Accordingly, while there should be no inquiry into the subjective intention of the person alleged to have made a threat, the words alleged to constitute a threat must constitute, objectively speaking, a declaration of an intention to kill.[22]
[22] Green v The Queen (Unreported, WASCA, Library No 950592, 8 November 1995).
The words amounting to a threat, must be a threat to unlawfully do something.[23] In this case, to unlawfully kill M.
[23] Jeffery v The State of Western Australia[2009] WASCA 133.
It is unlawful to kill any person unless such killing is authorised, justified or excused by the law.
The accused denies that he said anything that would amount to a threat to unlawfully kill M.
M's evidence
Background to the relationship between the accused and M
In either January or February 2015, M met the accused at her local supermarket. M was then 38 years old. M and the accused had consensual sexual relations on the day they met. From that point on until about April 2016, M and the accused were in a relationship.[24]
[24] ts 85, ts 111.
M suffered from serious medical issues throughout their relationship. At the age of six she was diagnosed as suffering from type 1 diabetes. This caused her significant medical problems. She was insulin dependent. At the time of giving evidence she was at end stage renal failure and was reliant on haemodialysis three times a week. She was hopeful of receiving a kidney transplant. She was partially blind in her left eye. She had also undergone operations to amputate parts of her left foot. At the time of their relationship most of the toes on her left foot had been amputated. This caused her some walking difficulties.
In addition to this, M suffered from depression and had done for many years. She had been hospitalised on a number of occasions for mental health reasons. M was extensively cross‑examined by counsel for the accused in relation to her mental health problems. Her mental health is relevant to her reliability as a witness.
At the time of their meeting, M was not only severely compromised by her diabetes and suffering from depression, but was also in an emotionally vulnerable state. M's father had recently passed away. She was devastated by his death. Prior to his death, M had been his full‑time carer. The accused was aware of her recent bereavement and was very supportive of her at that time.[25]
[25] ts 112.
The accused was a hairdresser by trade. According to M he spasmodically had employment in that area, but had long periods of unemployment during their relationship. She denied any suggestion that she caused the accused problems at work or that she accused him of having affairs.
M said that in the first month following meeting the accused, he was very empathetic and supportive of her. He also told her that he too had, not long before their meeting, lost his own parents. The accused also told her that he had recently gone through a divorce and did not have a permanent address.[26]
[26] ts 85 – ts 86, ts 111.
About a week after they met, the accused moved in to live with M at her home in Joondanna. Although they had a sexual relationship, the accused initially slept in a separate bedroom. M estimated that he slept in the spare bedroom for about the first three months of their relationship. After that, he moved into her bedroom.[27]
[27] ts 112.
M denied that the accused ever paid her rent, although she said he promised he would. She agreed that on occasions the accused would cook for her, although she was very sick at the time and ate very little. She said that the accused usually cooked for himself and would offer her some of his food.[28] He also cleaned her house regularly. This included cleaning up after she had been physically sick due to her ailments.[29] He also occasionally walked her dogs.
[28] ts 113.
[29] ts 114.
In cross‑examination, M said that in the 16 month period between January 2015 and April 2016 the 'majority' of their sexual relations were consensual. She explained this to mean that the 'non‑consensual acts' were those she described in her evidence as constituting counts 1, and 3 to 7 on the indictment.[30]
[30] ts 126.
When M had sexual intercourse with the accused on other occasions, he ejaculated inside her. They did not use any contraception. M said this was because he told her that she should trust him; that he loved her; that they were in a relationship and he would not leave her if she got pregnant; and that he already had children, so one more would not matter.[31] There were occasions when they engaged in consensual oral sex, including the accused ejaculating in her mouth.[32]
[31] ts 117.
[32] ts 120.
There were occasions, prior to the events the subject of counts 3 to 7 on the indictment, when M had consensual sexual intercourse with the accused whilst she was menstruating.[33]
[33] ts 137.
M said that about a month after the accused moved in, their relationship changed. The accused disappeared for long periods of time and, according to her, 'wouldn't have a plausible explanation'[34] for his absences. He also suggested to her that the nature of their relationship was a casual arrangement for sex, rather than anything more. M also said that the accused became 'very volatile and defensive' and 'the relationship turned violent'.[35] She said that the accused's violence towards her got progressively worse as the relationship went on.[36]
[34] ts 86 – ts 87.
[35] ts 87.
[36] ts 118.
M said that the accused's mood and demeanour would change radically in short periods of time. He would fluctuate from being violent and aggressive towards her, to being sensitive, calm and caring. She described this as being 'always nasty followed by nice'.[37]
[37] ts 118.
During the period of their relationship she asked the accused to move out of her home several times. The accused did move out a number of times, but also returned to live with her after moving out. M also changed the locks to her house several times. However, M also allowed the accused to return to live with her on a number of occasions,[38] and when he did, she provided him with keys to the house.
[38] ts 87.
According to M, during the 16 month period of their relationship the longest periods the accused moved out was for about three weeks to about a month.[39]
[39] ts 128.
In 2015, during the period of their relationship, M obtained a VRO against the accused on two separate occasions. She said she obtained them because she was scared of the accused. Each of these VROs was subsequently revoked by M or not pursued. M said that they were revoked when the accused promised to change. She also said that she was sick at the time and felt like she needed the accused.[40] There were also two police orders made against the accused in 2015.[41] There is no suggestion that any of the alleged offences were committed in breach of either a VRO or a police order.
[40] ts 132.
[41] Evidence of Detective Rulan Carr, read in at trial.
At one point, the accused also took out an interim VRO against M, but that was dismissed at the final hearing because he failed to attend on the day.[42]
[42] ts 132.
M said that the relationship was cyclical. There were periods when the accused was nice to her, but then there were periods of increasing violence by the accused towards her. This would lead to her asking him to leave. He would come back later. She said that she was vulnerable and needed the accused. She would take the accused back when he promised to change and be nice to her.[43]
[43] ts 128.
On 24 February 2016, the day of M's birthday, the accused visited her at home. He was then not living at her house, but he stayed the night.
The events of 28 February 2016 (count 1)
By 28 February 2016, although the accused was no longer resident at M's house, he continued to stay there 'on and off'.[44] The accused still had some of his property at her house.
[44] ts 90.
On the afternoon of 28 February 2016, M was asleep on her bed. It was a hot day. She said she was lying on top of the bed covers and did not have any clothes on. She awoke to find the accused standing over her in her bedroom. His left hand was around her neck and he was squeezing it. M said the accused was yelling at her and accused her of 'dobbing' him and 'Kieran' in.[45] He also blamed her for being unemployed. M said his demeanour was threatening and intimidating.
[45] ts 88.
M said the accused, whilst still squeezing her neck, got on top of her, straddling her whilst she lay on top of her bed. She could feel the accused's penis pressed against her. Initially she could feel his penis against her pelvic area under her 'belly button', but it moved to touching her groin. M said that whilst he did this he repeatedly said to her 'You want it, don't you'[46] (count 1).
[46] ts 89.
M said that the incident ended when one of her dogs jumped on top of the bed causing the accused to release his grip on her neck. This afforded her the opportunity to run to her bathroom. She closed the door and locked it. According to M, she could still hear the accused yelling at her but she was unable to say what he said. M said that shortly after this she heard the accused in the kitchen. He yelled out to her that he had made her a cup of tea. M said that this sudden change in behaviour was not uncommon for the accused who would often become calm, nice and sympathetic towards her following bouts of violence. Nonetheless, she was concerned that if she left the bathroom he would become violent again. She managed to get her mobile phone and call police. M said that that the accused swore at her and said that she 'wanted to have sex with police'.[47]
[47] ts 90.
M did not hear the accused leaving the house, but he was not there when the police attended. M, with the assistance of police officers, put the accused's property on the verge outside her house to ensure that the accused did not need to enter her home.[48]
[48] ts 90.
On or about 2 March 2016, M obtained a third VRO against the accused.[49]
The events of 18 March 2016 (counts 2 to 7)
[49] Evidence of Detective Carr, read in at the trial.
On or about 14 March 2016, M underwent a medical procedure. She had previously had a catheter inserted in her peritoneal cavity. On this occasion the medical procedure was to have the catheter externalised.
Leading up to the procedure M continued to have contact with the accused despite the fact that she had taken out a VRO against the accused.
I infer from the sequence of events described by M that, although she said it took fourteen days for her to recover from the procedure, she was nonetheless discharged from hospital on the day she underwent the procedure.
M said that she had contact with the accused that day and they arranged to meet in the carpark of the hospital after she was discharged. M said she was apprehensive about meeting up with the accused because she was 'fairly sore after the surgery and [she] was worried about the previous incidents with [the accused] and [her] physical state of vulnerability'.[50] Nonetheless, despite her reservations, not only did she meet up with the accused outside the hospital, but also travelled by car to her home with the accused and then allowed him to stay the night at her house.[51]
[50] ts 91.
[51] ts 92.
M said that after staying the night, the accused then left for a couple of days.
M said that the surgical procedure she had undergone required her to be careful to prevent the wound site from becoming infected. The wound would weep and she needed to change the dressings to the area.
Some days after the accused had left her home, M said she was lying down resting having changed her dressings when she heard a noise. She was dressed in a green T‑shirt and pink underwear. She saw the accused inside her house. He was carrying a black bag.
As to what, if anything, she said to the accused when she first saw him in her house, initially in her evidence–in‑chief M said:[52]
[52] ts 93.
Mr Hobson: Did you say anything to him?
M: I think I told him to leave, but I don't remember.
Mr Hobson: Did [the accused] say anything to you?
M: I don't remember.
Mr Hobson: Did [the accused] do anything then?
M: I remember him wanting money.
(emphasis added)
M said that after finding the accused in her home, he took money from her purse. The purse was in a bag on the kitchen bench. She and the accused argued about this. Although M could not remember the precise words used by the accused, she remembered that the accused said something about taking the money because M had charged him rent.[53] M said that the accused was not making a lot of sense at the time.
[53] ts 93.
M said that the accused then came up behind her and had one of his hands on her arm and another in her back. She could feel the accused's erect penis against her. There followed further argument between the two of them. The accused whispered something to her suggesting that she wanted sex. M then said 'I'm pretty sure I told him to eff off and he pushed me really hard and I fell against a fold‑up coffee table'[54] which resulted in the leg of the coffee table breaking.
[54] ts 94.
M gave precise and detailed evidence of not only the alleged sexual offences committed by the accused against her, but also the lead up to the acts constituting the offences. This included intricate details of how the accused, who was in the kitchen at the time, opened two packets of Jerhigh Milky Treats and scattered them on the floor to distract her two dogs. She remembered which dog commenced to eat the treats first.[55]
[55] ts 94.
M said that the accused yelled at her to get in the bedroom. She did as he demanded. She sat on the end of her bed. The accused then entered the bedroom and shut the door behind him. The accused then removed his clothes, which she recalled included 'black underwear'.[56] The accused stood in front of her and told her to 'suck his dick'.[57]
[56] ts 94. It is of note that the police put to the accused during the interview that he was wearing red underwear.
[57] ts 94.
M said that at that time she was menstruating. She did not want to have any sexual activity that day. She told the accused that she 'was still sore from the surgery and that [she] had [her] period'.[58] The accused responded by saying 'that was really horny and that it turned him on'.[59] In cross‑examination M conceded that, prior to this occasion, there had been occasions where she had consensual sexual intercourse with the accused whilst menstruating.
[58] ts 95.
[59] ts 95.
M said that the accused told her to open her mouth and that he put his penis into her mouth. He held the back of her head and pushed her head towards his penis whilst saying 'You're really good at this. You must be enjoying it'.[60] This constitutes count 3 on the indictment. M said that she did not want to do it.
[60] ts 95.
M said that the accused then took his penis out of her mouth, put a pillow on the floor, and told her to get on her knees on the floor. She did as she was told. The accused then reinserted his penis in her mouth and continued to force her head towards his penis.[61] This constitutes count 4 on the indictment.
[61] ts 95.
Following that, the accused then told her to get back on the bed. He then removed her underwear. M was lying on her back. The accused removed lubricant from his black bag and applied it to his erect penis. He then got on the bed and inserted his penis into her vagina. M did not want to have sexual intercourse with the accused.[62] This constitutes count 5 on the indictment.
[62] ts 96.
M described how the accused, whilst penetrating her vagina with his penis, pushed her left leg towards her chest. She recalled that her thigh was pushed so hard against her chest that she could not breathe. She was in considerable pain.[63]
[63] ts 96.
The accused then removed his penis from her vagina and changed the position of her legs so that both her legs were forced back onto her chest. The accused then re‑inserted his penis into her vagina.[64] This constitutes count 6 on the indictment.
[64] ts 96.
M said that during this time she felt sick and scared. Whilst the accused was penetrating her, he was ranting about the money that he had taken and was saying that he would give some of it back to her. He also said that 'it was really horny that [she] had her period and it was turning him on'.[65]
[65] ts 96.
M said that during this time, the accused's phone rang. The accused answered his phone and left the bedroom. He shut the door behind him.[66]
[66] ts 96 - ts 97.
The accused subsequently returned to the bedroom. She was still on the bed. It appeared to her that he had slightly lost his erection. She said that he re‑applied lubricant to his penis and appeared to be masturbating. He told her that he was 'going to go a second time'[67] and got back on the bed. He then put her legs in what she said she called the 'chicken'[68] position, with his body weight on her heels whilst her legs were in a triangle shape, and inserted his penis into her vagina again. On this occasion he ejaculated inside her.[69] This constitutes count 7 on the indictment.
[67] ts 97.
[68] ts 97.
[69] ts 98.
After this final act of intercourse, the accused wiped himself with a maroon towel. M recalled seeing blood on the accused's penis and dark blood spots on the towel.[70]
[70] ts 99.
Shortly after this, the accused's phone rang again. He answered the phone and left the bedroom shutting the door behind him. M took the opportunity to ring '000'. Whilst she was talking to the operator, she recalled that the accused was yelling at her and she heard sounds which she thought 'sounded like he had steel‑capped shoes' and was kicking the door.[71] Shortly after that, M heard sounds consistent with the accused leaving the house. M informed the '000' operator that the accused had sex with her'.[72] Police officers attended her home shortly after that.
[71] ts 99.
[72] ts 99.
When the events surrounding the phone call were explored with M in cross‑examination, she said that:[73]
While he was doing what he was doing, he took the call, and when he returned to the bedroom, before he – what happened, the second bit of it, he told me it was his son Jayden. He didn't go into it, he told me to think about if I went to police, if I continued with other charges, that he could go to gaol and his son would be all alone, and he would not have a father.
[73] ts 138.
By 18 March 2016 however, on the evidence before me, the only matter that M had raised with the police is the indecent assault alleged to have occurred on 28 February 2016 and matters that might have been relevant to the VRO. There is no evidence that the accused had been charged at that stage. In other words, M's version is that after raping her, the accused returned to the bedroom and asked her not to proceed with earlier charges, and then raped her again.
M said that she did not want the accused to put his penis in her mouth or her vagina.[74]
[74] ts 100.
Later in her evidence‑in‑chief, the prosecutor returned to the question of what, if anything, was said by M to the accused when she first saw him in the house. Her evidence was as follows:[75]
[75] ts 107.
Mr Hobson: Now, going back to the day that you described [the accused] was at your house and you said put his penis in your mouth and his penis in your vagina?
M: Yes.
Mr Hobson: That day, when you first saw him in the house that day, can you remember if you said anything to him?
M: No.
Mr Hobson: What about at any time after that? You had to go into the bedroom, did you say anything to [the accused]?
M: Just remember the first thing I telling him [sic] was about having my period and the pain, because I hoped he would just leave me alone. I didn't want to be there with him. I wanted him to get out of my house. And I remember in the arguments, I just remember swearing. Like I just really wanted him to get out. And I just remember to – like, telling him, 'Fuck off, get out of my house. Fuck off.' Like that's what I remember saying. I just remember just not wanting him to be there. And he just wasn't listening to me. He wasn't leaving. And I just remember getting frustrated and shouting at him to fuck off. That's all I remember from those times.'
(emphasis added)
In cross-examination, M agreed that so far as all of the acts of penetration are concerned, she never said to the accused 'No, I don't want to'[76] or 'No, I don't want to have sex'.[77] However, she said she told the accused that she 'felt like [she] couldn't breathe' and that he 'kept trying to pull [her] mouth into a smile and tell [her] to look like [she] had enjoyed it and [she] was enjoying it'.[78] She also explained that she was very frightened and felt very vulnerable at the time.[79]
[76] ts 126.
[77] ts 127.
[78] ts 126.
[79] ts 127.
M accepted that she did not tell the accused to stop. More significantly however, whilst she said that she told the accused at one point that she could not breathe, she did not tell the accused that he was hurting her or apparently make any effort to change position despite the fact that on her evidence she was in significant pain. This aspect of her evidence is difficult to accept.
Following this, at some stage M was in her front garden when the accused attended her house. M had previously taken steps to obtain a VRO against the accused. (Detective Carr said a VRO was taken out by M against the accused on 3 March 2016). She told the accused that she had taken out a restraining order against him and that he should not be there.[80] According to M, the accused showed her the handle of a gun and told her that since he had not been served with the order, he could not be charged.[81]
[80] ts 100.
[81] ts 101.
Initially she said that the accused stayed at the house that day, but then said that she was confused and that the accused wanted money and that she did not see him for a couple of days after that.[82]
[82] ts 101.
According to M, because the accused had attended her home again, she then arranged for her uncle L to stay at her house. He slept on the couch in the living room.
The events of 24 March 2016 – Counts 8 and 9
M awoke early on 24 March 2016 to feed her cats. L was there. She saw the accused inside her house. He was holding a key. She thought that he had entered via the side door. There was a single key that opened the security doors and all other doors that allowed entry to the house.
When first asked by the learned prosecutor about the events immediately after finding the accused in her house, M said as follows:[83]
Mr Hobson: Did you say anything to [the accused]?
M: To the best of my memory, I think I told him he shouldn't be there, but he was really calm. The thing I remember most clearly is [the accused] was not aggressive. He was quite calm, and I remember telling him – the first thing I remember telling him was that my uncle [L] was in the house, and he – so I remember him being calm. …
[83] ts 102.
Later in her evidence‑in‑chief, when asked by the prosecutor what she said to the accused when she first saw him in the house she said 'I think I was yelling at him to get the f out of my house' (emphasis added).[84] She said that she definitely remembered telling the accused that her uncle was there, because she wanted him to leave.[85]
[84] ts 107.
[85] ts 107.
M said that the accused put the key down somewhere, and then walked calmly into the living area where L was on the couch and had a conversation with L. Not long after that, L left the house.[86]
[86] ts 102.
M said that she and the accused then discussed whether L would ring the police. She next remembered being in the bedroom. The accused crouched down behind a pile of clothes inside a walk‑in closet within the bedroom. According to M, the accused suggested that he thought that L would contact the police and that he wanted to surprise the police. He was talking about confronting the police and stabbing them. He also said that he knew that the police were looking for him and that he was aware that she had reported his offending to the police.[87]
[87] ts 104.
M said that she was prevented from leaving the house by the accused. She said that the accused remained very close to her and his words, particularly with respect to confronting police, were 'very erratic and intimidating'.[88] The accused remained with her wherever she went in the house. He kept telling her to stay in bed. He told her where to go and what to do. She asked the accused if she could check the letterbox and was told by him that she 'wasn't leaving the house'.[89] She believed that she could not leave the house. The accused also took her mobile phone.[90]
[88] ts 105.
[89] ts 105.
[90] ts 105.
At one point during the morning, M heard Detective Carr outside her house. She could hear her knocking on the door and calling out to her and the accused. M was on her bed. The accused told her to be quiet. He also told her to go and see who was there. M did this and reported to the accused that it was a detective who had come to take her statement. The accused threatened to hurt her animals if she made a sound. During this period, M's mobile phone rang. The accused asked her who was ringing her. She told the accused that it was the detective.
In cross‑examination M said that she did not open the door to the police or call out to them because she was extremely frightened, vulnerable and because the accused had previously carried out threats of violence against her. She was scared for her own safety and that of her pets.[91] These events constitute the allegation that M was unlawfully detained by the accused inside the house, which is relevant to count 8. These events are also relevant to count 9 on the indictment.
[91] ts 126.
M said that she and the accused spent most of the day in the house, but at one point the accused told her he had to get out of the house before the police found him. Under the threat that the accused would hurt her or her animals if she did not comply, she moved her car into the garage of her house. The accused got into the car and hid under a blanket and sun visor in the backseat. He yelled at her and directed her to drive to a doctor's surgery on Wanneroo Road.
Ultimately, on the accused's instructions, M drove to a car park at Mirrabooka Shopping Centre. He then asked her to contact the detective and withdraw the charges against him. He said he would come back and look after her and the house. He suggested that she would not be able to care for herself if he was in jail. The accused then left.
M then contacted Detective Carr and told her what had happened. Police attended Mirrabooka Shopping Centre and located her there.
The events inside the house constitute the allegation that she was unlawfully detained on count 8, and the wider events form the allegations on count 9.
Events after 24 March 2016 – count 10 – threat to kill
Following these events, M received text messages, phone calls and messages on Facebook Messenger from the accused.
M remembered one particular phone call which she said was in early April. Initially she said it was in about '96'[92] but quickly corrected herself to say it was on about 6 April 2016, or early April 2016.[93] She said that this phone call was about a month after the other incidents that she had described. Later, when asked about the date of this call, she agreed with counsel for the accused's suggestion that it occurred in early April 2017.[94] Despite the differences in her account about the date of the call, I am satisfied beyond reasonable doubt that the call she gave evidence about occurred in early April 2016.
[92] ts 107.
[93] ts 108.
[94] ts 121.
M said at around this period the accused had been taking her shopping and driving her around because she was not able to drive. The accused had agreed to take her shopping that day, but had not turned up. She called the accused's mobile phone a number of times without success. Eventually the accused answered his phone.[95] The two initially had a heated discussion about 'why [the accused] hadn't come home'.[96] According to M, her conversation with the accused quickly deteriorated. He threatened to 'snap [her] cat's neck'[97] and she hung up on him.
[95] ts 108, ts 122.
[96] ts 122.
[97] ts 108.
Half an hour later, the accused called her phone and she answered. Initially they discussed whether or not she had told the police to withdraw the charges against the accused. Their conversation deteriorated when the accused told her he was at a friend's house nearby and could see her home from there. He asked her to withdraw money. He told her he wanted to go to the casino and directed her to go to the bank to withdraw money for him. She could hear him with two girls in the background.[98] He said that he was going to come over and collect the money. M said that eventually the accused said 'I never hurt or hit you, but I will kill you'.[99] M believed he might follow through with the threat and contacted the police. This constitutes count 10 on the indictment.
[98] ts 122.
[99] ts 108.
In cross-examination, although M could not recall, she did not disagree with the suggestion that sometime later that evening, after the phone call in which she alleges that the accused threatened to kill her and after she had made a statement to police, the accused came home with Red Rooster dinner for the two of them. She said that this was consistent with his pattern of being nasty and then nice to her.[100]
[100] ts 123.
On 8 April 2016, M made a lengthy written statement to police. It included allegations that the accused had unlawfully sexually penetrated her. The accused was subsequently arrested and remanded in custody. He was held at Casuarina Prison. Despite the allegations that she had made against the accused, M visited him at Casuarina on two separate occasions. She said that she did this because the accused had manipulated her emotionally and she was very vulnerable medically. She said the accused made her feel guilty and that it was all her fault. He asked her to think about his children if he went to jail. She said he made her feel like he was the only person who could help her and that she was worthless.[101]
[101] ts 131.
Sometime in 2018, after the accused was released on bail, M had a further part of her left foot amputated. She asked the accused to come to her home. She was particularly unwell. The accused came over and helped her. She recalled that he stayed for at least five days and perhaps up to two weeks.[102]
[102] ts 135.
M's mental health issues
M had a long history of mental health issues. She said that she had been suffering from depression for about 20 years.
In cross‑examination it was put to her that in 2003 she had been admitted to Sir Charles Gairdner Hospital due to 'paranoid symptoms about an ex‑boyfriend allegedly stalking her'.[103] Although she accepted that she was admitted to hospital in 2003, according to M it was because she was 'suffering from depression'.[104]
[103] ts 139.
[104] ts 139.
In 2008 she was treated for depression and had her medication changed.[105]
[105] ts 139.
In October 2013 she was admitted to Graylands Hospital suffering depression.[106]
[106] ts 140.
It was put to her that in 2014 a psychiatrist had said that she 'was psychotic and had periods of delusional thinking, especially when [she was] under pressure'.[107] M accepted that it was possible that a psychiatrist had said that, but she had not been told it and she had not seen a report to that effect. She said what she had been told was that she was suffering from situational depression.[108]
[107] ts 141.
[108] ts 141.
M accepted that she had been admitted to Graylands Hospital as an involuntary patient and treated for delusions, including being prescribed medication for those delusions.[109] She said that she was not taking that medication in either 2015 or 2016.[110] She said that her failure to take the medication did not cause her to have delusions.[111] Nonetheless, she accepted that in the period between 2015 and early 2016 she was under pressure because of her health issues.[112] She said this also made her more vulnerable to the accused.[113]
[109] ts 140.
[110] ts 140.
[111] ts 140.
[112] ts 141.
[113] ts 141.
It was also put to her by counsel for the accused that in 2018 she had been assessed by the psychiatric service at Royal Perth Hospital and diagnosed with having delusional paranoia. Although she accepted that she had been 'diagnosed as having delusional paranoia',[114] she said 'that wasn't upheld by the Mental Health Tribunal' because 'the person in question was convicted by the State Administrative Tribunal of abusing me'.[115] She explained that related to allegations that she had made against a male nurse. She had alleged that she had consensual sex with the nurse at her home on 23 January 2017. She was diagnosed as suffering from paranoid delusions following these allegations. Subsequently however, the male nurse had admitted that he did have sexual relations with her. Consequently, the Mental Health Tribunal did not uphold the diagnosis of paranoid delusions. She was reluctant to go into any further details as she said that this was 'a separate legal matter'[116] and she was pursuing compensation over it.
[114] ts 139, ts 140.
[115] ts 139.
[116] ts 142.
Counsel for the accused ultimately put to M that the allegations she made against the accused were the product of her delusions.[117] She denied that she was and was adamant that all of the offences occurred as she described them.[118]
[117] ts 143.
[118] ts 143.
Specific directions and legal principles that apply in this case
The background/relationship evidence
M not only gave evidence about the events the subject of the charges on the indictment, but also about her relationship with the accused in general. This included evidence that after about a month 'the relationship turned violent'.[119]
[119] ts 87.
The evidence of M and Detective Carr included that M had taken out VROs against the accused. Detective's Carr's evidence (read in by consent) included a history of the VROs and police orders taken out or made in favour of M.
The evidence of other alleged violence and the apparent need to have orders made in favour of M was admissible and was led as 'background' evidence in this case. It is relied upon by the State to show the true nature of the relationship between the accused and M at the relevant time. It is also relevant on the accused's case. The fact that M revoked the VROs or encouraged him to have contact with her and be at her place when orders prevented him from doing so, the accused submits supports his case. The accused submits that this supports his defence that he did have consent to be at her house at the relevant times, or at the very least, honestly and reasonably believed that he did.
The State's case is that the relationship was marked by violence and abuse by the accused towards M. The accused denies that he was.
The evidence is relevant to issues in the case including whether or not the State has proved:
1.The absence of consent and the defence raised pursuant to s 24 of the Code in relation to counts 1 to 7; and
2.Whether M was detained on counts 8 and 9; and
3.Whether the words used by the accused, if proved, objectively amounted to a threat to kill.
However, I cannot reason that, if I find that the accused had previously been violent to M, that he is the type of person likely to have committed the offences with which he has been charged in this case. That would involve a process of reasoning which would be quite wrong because I would be reasoning on my assessment of the accused's character or propensity, rather than on the basis of the relevant evidence.
The fact that the accused might have had engaged in other conduct amounting to violence against M is not direct evidence that he committed the offences with which he has been charged.
M's alleged distress
The evidence from Detective Carr (read in by consent) included that on 18 March 2016 she attended M's house. According to Detective Carr:[120]
[M] was standing in the living room area of the house talking to Detective Sergeant McGee from Mirrabooka detectives. [M] looked extremely distressed and was holding her abdomen with both hands and appeared to be in discomfort.
[120] ts 174.
Detective Carr saw M again on 24 March 2016. On this occasion she located M outside Big W at the Mirrabooka Shopping Centre. According to Detective Carr, '[M] broke down when [Detective Carr and other police officers] found her and burst into tears'.[121]
[121] ts 176.
Evidence of distress itself cannot be used to confirm the truth of the complaint made by M. However, if I find there was genuine distress which was consistent only with her allegations, it can be an aid in assessing the credibility of her complaints.
In this case the evidence included that M had undergone an operation on or about 14 March 2016. On M's account, it left her sore. It took her 14 days to recover from that procedure.
In addition, M had suffered from depression for 20 years.[122] She was also emotionally vulnerable following the death of her father.
[122] ts 139.
On any version of events, the accused and M had argued on both 18 and 24 March 2016, before Detective Carr had found her.
M's distress may have resulted from any one of several possible causes. It may have been caused by the commission of the offence or offences as alleged by the State. On the other hand, it may have been as a consequence of the pain M suffered from her operation on or about 14 March 2016. Or, the distress may have been a product of the argument M had with the accused on the day in question. I also note M's emotional state following her father's death.
In this case, given the competing inferences open and available on the evidence, I cannot and do not draw any adverse inference against the accused by reason of the fact that she was, I find, in a state of distress on the occasions that Detective Carr found her.
The accused's account in the interview (conducted by Detective Senior Constable Rulan Carr and Detective Constable Lee Burgess with the accused on 26 March 2016)[123]
[123] Exhibit 1.
The accused did not give evidence as was his right. I have already noted that no adverse inference can be drawn from the exercise of his fundamental right to remain silent at his trial. However, he did not exercise his right to silence after his arrest on 26 March 2016. He voluntarily participated in the interview conducted by Detective Senior Carr and Detective Burgess. He was properly cautioned and answered all questions put to him. The total interview (unedited) went for about 2 hours and 20 minutes without a break. The edited version is now part of the evidence in this trial.[124]
An overview of the interview
[124] Exhibit 1.
The interview was not conducted well by the interviewing officers. The accused often gave very long and, at times, confusing answers to questions asked of him. At times it was difficult to follow the chronology of events given by him, particular in light of the fact that the interviewing officers often asked questions that were out of chronological sequence and jumped from one incident to another.
In the latter part of the interview the interviewing officers, particularly Detective Carr, argued with the accused and spoke over him.
On occasions during the interview Detective Carr put questions to the accused in a condescending and accusatorial manner and made it clear that she accepted M's version of events. Some of the allegations and facts put to the accused by Detective Carr during the interview were inconsistent with the account subsequently given by M in her evidence.
None of the inconsistencies were clarified or explained during the course of the trial. None of those matters were raised with M by counsel for the accused as potentially prior inconsistent statements. Consequently, I am simply left with questions and propositions that were put to the accused in his interview that were inconsistent with M's account. In any event, most of the inconsistent allegations were rejected by the accused.
Throughout the interview, the accused maintained that he had not committed any offence. He maintained that he had consent to be in the house at all relevant times and that all sexual acts with M were consensual. He repeatedly stated that he had never been violent towards M and was unshaken by the forthright manner of questioning by the police officers.
The accused provided an account to police that was generally consistent with many of the things said by M.
Since I am required to apply the same principles of law and procedure as would be applied in a trial before a jury, it is necessary to consider whether or not to apply what is commonly called the 'Liberato direction'.
Recently, the High Court noted that:[125]
[i]ntermediate appellate courts have expressed differing views as to whether a Liberato direction is appropriate in a case in which the conflicting defence version of events is not given on oath, but is before the jury, typically in the accused's answers in a record of interview.
[125] De Silva v The Queen[2019] HCA 48; (2019) 94 ALJR 100 [11] (Kiefel CJ, Bell, Gageler and Gordon JJ); see also Whitsed v The Queen[2005] WASCA 208; R v Cordell [2009] VSCA 128; RMD v The State of Western Australia [2017] WASCA 70; (2017) 266 A Crim R 67; Monforte v The Queen [2018] VSCA 277.
In this case, the accused participated in a lengthy and extensive interview with police and answered every question put to him. As noted above, at times the questioning took the form of cross‑examination. Many of the answers given by the accused during the interview were tested by Detectives Carr and Burgess. Despite the fact that the answers given by the accused were not on oath, this is an appropriate case to apply the 'Liberato direction'. Consequently, I apply the direction in the formulation, with appropriate adaptions to this case, provided in R v R P Anderson[126] as follows:
(a)If I believe the accused's account in his interview with the police, I must acquit.
(b)If I do not accept that account but I consider that it might be true, I must acquit; and
(c)If I do not believe the accused's account in his interview with the police I should put that account to one side. The question will remain: has the prosecution, on the basis of evidence that I do accept, proved the guilt of the accused beyond reasonable doubt?
The accused's account
[126] R v R P Anderson [2001] NSWCCA 488; (2001) 127 A Crim R 116, 121 [26].
At the time of the interview, the accused said he had no fixed address. He explained that this was because every time he and M had an argument, he became homeless. He was staying with friends. However, despite the fact that M had made serious allegations against him, he still loved her.[127]
[127] Interview, page 7.
In relation to counts 3 and 4, Mr Hobson submits that the accused denied engaging in oral sex with M on the day alleged. He points to what the accused said in his interview.[199]
[199] Interview, page 30.
The State submits that the lack of consent can be inferred from all the circumstances described by M, including M's evidence of the force used by the accused and that she did not want to do it.
In relation to counts 5, 6 and 7, the State submits that the lack of consent can be inferred from all the circumstances including:
(a)M's description that she could not breathe and was in pain; and
(b)M was still recovering from her operation and told the accused she was sore and was menstruating.
The State also points to the evidence of Detective Carr that M was in a distressed state when she found her on 18 March 2016. I have already found that the evidence about distress does not support the State's case.
In relation to counts 8 and 9, the events of 24 March 2016, the State again submits that despite the fact that the accused had a key to the premises that the accused's consent to be there was explicitly withdrawn by M when she told the accused to get out of her house. However, I note that M was not definite about what she said to the accused. What she actually said in evidence in answer to Mr Hobson's question as to whether she could remember what she said to the accused was 'No. I think I was yelling at him to get the F out of my house'.[200] What she did definitely remember telling the accused was that her uncle was there.[201]
[200] ts 107.
[201] ts 107.
In relation to counts 8 and 9, the State points to M's account which Mr Hobson submits is supported by both Detective Carr and the accused's evidence about the events at the house that day. Mr Hobson points to the accused's admission in his interview that he knew the detectives were looking for him and had a motive to stop M from answering the door to the police. The State submits that M was detained by the accused within the house and elsewhere.
Count 10 is pleaded as occurring on 6 April 2017. In relation to the date of the alleged offence, without ultimately submitting that the offence occurred on the date pleaded in the indictment, the State simply submits that M was confused about what date the threat was made. The prosecution submits I can nonetheless, accept M's evidence that:
(a)the call was made, and
(b)the conversation was initially about the accused getting money from M and her withdrawing the charges; and
(c)the accused did say to M 'I will kill you'.
The defence's closing submissions
Mr Watters submits that, with reference to the recent High Court authority of De Silva v The Queen,[202] given the manner in which the police conducted the interview with the accused and his answers, this was an appropriate case for me to give a Liberato direction. The accused submits that I should accept his account in his interview, or at the very least, it should cause me to have a reasonable doubt on each count on the indictment. I have already found that this is an appropriate case for a Liberato direction.
[202] De Silva v The Queen [2019] HCA 48; (2019) 94 ALJR 100.
In relation to Detective Carr's evidence of M's distress on both 18 and 24 March 2016, the accused submits that there are other inferences pointing away from guilt that are open on the evidence. Mr Watters points to M's operation days prior to these events. Mr Watters also submits, in relation to the sexual acts on 18 March 2016, that although the sexual acts were consensual, they may nonetheless have been painful. The accused also points to M's mental health issues.
Mr Watters submits that, despite the accused's admissions in the interview, the State's case rests upon M's reliability and credibility as a witness. I accept that submission.
The accused submits that there are real issues in relation to M's credibility as a witness. The accused submits that M was possessive and controlling of the accused. Mr Watters also submits that she was jealous of the accused's friendships with other woman, particularly in his employment. The accused submits that M had a motive to lie and make up allegations against the accused because she was not able to control him.
The accused also submits that M's mental health issues gives rise to serious questions as to her reliability.
Mr Watters submits that I can infer from the evidence that M was, or at least there was an available inference that she was, suffering from paranoid delusions at the time of these events. I will address this issue later in these reasons.
In relation to counts 1, 3 and 4, Mr Watters submits that the accused denied that the acts took place. For reasons explained later, I do not accept that the accused made a complete denial of these acts.
In relation to count 2, the accused raises his status in the house in circumstances where he was required to pay rent (this issue is also relied upon in relation to count 8). The accused submits that even if I was satisfied that M had withdrawn consent for the accused to be in the place, I could not be satisfied that occurred before any of the alleged sexual acts.
In relation to counts 5, 6 and 7, the accused submits that these acts were consensual. He also submits that the defence of mistake pursuant to s 24 of the Code arises and has not been negatived by the State. Mr Watters points to the fact that there's no evidence that M at any time said 'No'.
In relation to count 8, the accused submits that there was no evidence sufficient to satisfy me that the accused was in the house without consent.
In relation to the offence of unlawfully detaining M pleaded in relation to counts 8 and 9, the accused submits that his account should cause me to have a reasonable doubt that he did unlawfully detain M.
In relation to count 10, the accused submits that the date, in the circumstances of this case, had effectively become an element of the offence. The accused submits that since the State has not sought to amend the date on the indictment, it effectively needs to prove the date beyond reasonable doubt. I do not accept that submission. The date is a particular only. The State do not need to prove the date beyond reasonable doubt.
The accused submits that he never threatened to kill M. The accused maintains that the date pleaded is significant and that it was unlikely that he would make a threat to kill M 12 months after the relationship ended.
In the alternative, the accused submits that I ought to have a reasonable doubt as to whether or not there was actually a threat to kill made by the accused.
The issues in the trial and findings of fact
No issue of identity arises in relation to any of the counts.
There is no issue that the accused and M were in a family and domestic relationship.
Although, parts of M's account are supported by Detective Carr's evidence and the accused's account, the State's case in relation to each count on the indictment stands or falls on M's evidence. In order to find any of the counts proved, I must be satisfied that M is an honest, accurate and reliable witness.
I find that M was generally an honest witness. Whilst I accept the accused's submission that M was jealous of his relationships with other women, nonetheless she made concessions when appropriate. She accepted that she allowed the accused back into her home at times when, on her account, it was extremely unwise to do so. At times during her evidence she became emotional. Given her account, this was entirely understandable and consistent with the events she spoke to.
However, honest witnesses are not always accurate or reliable. M on her own evidence could not, for example, remember whether she had asked or told the accused to leave the house before any of the acts constituting the sexual penetrations occurred.[203] There are other aspects of M's evidence, when combined with the accused's account, causes me to have a reasonable doubt about the accuracy and reliability of her evidence.
[203] ts 107.
M was in a particularly vulnerable emotional and mental state in the period of these allegations. She was dealing with serious medical issues. She was still grieving the death of her father. She was also suffering from what she said was situational depression. She was under pressure which she accepted was relevant to her depression. Her evidence must be considered in light of what her mental state was in the period between 2015 and 2016.
I have already noted that, despite in April 2016 making serious allegations against the accused, M visited him in Casuarina Prison on two occasions. After the accused was released on bail, she asked him to come to her home where he stayed for at least five days.[204] M says that she did this because the accused manipulated her emotionally and she was vulnerable at the time.[205] As already noted above, this may have impacted not only her decision making processes, but also her ability to accurately and reliably recall events.
[204] ts 135.
[205] ts 131.
There is no doubt that M was physically unwell at relevant times, sometimes extremely unwell. These issues are also relevant when considering her ability to accurately and reliably recall events. It is also relevant to her state of mind at the time. It may explain why she called police on a number of occasions; obtained court orders preventing the accused from having any contact with her, and then withdrew the orders; as well as ordering the accused to leave her house and then allowing him to return. Her view of her behaviour subsequently may not accurately reflect her thoughts at the time she made decisions relevant to these events.
As already noted above, the accused gave a full and detailed account of events when questioned by the police. The accused was unshaken in the face of the allegations that were forcefully put to him.
Ultimately, in light of the combination of a number of aspects of M's evidence together with the accused's account, I am unable to be satisfied that M was accurate and reliable in relation to critical aspects of her evidence detailed below.
Count 1 – Aggravated indecent assault on 28 February 2016
The issues in relation to count 1 are as follows:
1.Did an assault occur?
2.Was the assault unlawful?
3.Was the assault indecent?
Did an assault occur?
I am satisfied beyond reasonable doubt that there was a sexual interaction between the accused and M, including that he pressed his erect penis against her pelvic region or groin. This constitutes an assault. This sexual act is consistent with their relationship.
I am not satisfied that the accused squeezed M's neck, in the manner described by her. Although the accused may well have squeezed her neck, I am not satisfied that it was in an aggressive or overly forceful manner. Although it is not determinative of the issue, there is no evidence of any injury suffered by M.
I note that although this act is, in itself, an assault, it is alleged to be part of the circumstances constituting the offence.
Was the assault unlawful?
I am not satisfied beyond reasonable doubt that M did not consent to the acts she described. In other words, I am not satisfied that the act was unlawful. There was nothing unusual about M being naked in the house. M and the accused engaged in consensual sexual acts on many occasions prior to these events. Although she may have preferred not to have engaged in any sexual acts, I am not satisfied beyond reasonable doubt that she did not consent.
Mistake (s 24 of the Code)
Section 24 of the Code, 'mistake of fact' provides that:
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
Consequently, a person who does an act under an honest and reasonable, but mistaken, belief that the other person was consenting, is not criminally responsible for that act to any greater extent than if the real state of things had been such as be believed to exist, namely that the other person was consenting.
If the evidence is sufficient to raise the defence, the accused bears no burden of proving he was acting under such a mistake. Rather, consistent with the burden of proof, the State is required to negative the defence beyond reasonable doubt. The State can do that by proving either that the accused did not honestly hold such a belief, or that the belief held was not in the circumstances reasonable.
The defence of honest but reasonable mistake of fact pursuant to s 24 of the Code only arises if I am first satisfied beyond reasonable doubt that M did not consent.[206]
[206] Higgins v The State of Western Australia[2016] WASCA 142 [25] (McLure P); WCW v The State of Western Australia[2008] WASCA 232 [7] - [10] (Buss JA).
In considering whether the defence pursuant to s 24 is properly raised:[207]
[The] relevant question is whether there is evidence which, taken at its highest in favour of the [accused], could as a matter of law, lead a reasonable trier of fact to have a reasonable doubt that the [accused] honestly believed on reasonable grounds that the complainant consented to the sexual activity the subject of the charge.
[207] Higgins v The State of Western Australia [24] (McLure P); [7] - [10] (Buss JA); Braysich v The Queen[2011] HCA 14; (2011) 243 CLR 434 [17], [36].
I have already found that the State has failed to prove that M did not consent. Therefore, the defence pursuant to s 24 of the Code does not arise. However, for the sake of completeness, even if I had been satisfied that M had not consented, I would not have been satisfied beyond reasonable doubt that the State had negatived the defence of honest and reasonable mistake of fact pursuant to s 24 of the Code.
I have already set out what the accused said about the allegations constituting the offence the subject of count 1. I have noted that the accused at one point said that the allegations were ' … absolute fabricated rubbish. The whole thing. Not one thing that is true about that'.[208] This, and other answers given to questions containing rolled up propositions with multiple allegations, was ambiguous. That is particularly so when taken in context. The accused repeatedly said that all sexual acts that occurred between him and M were consensual.
[208] Interview, page 62.
I am satisfied that the defence of mistake has been raised on the evidence in relation to count 1 for the following reasons.
First, the accused's answers were not a mere denial of the allegations. He made clear that all sexual acts between him and M were consensual.
Secondly, in the context of their ongoing sexual relationship, the acts in the circumstances as I find are consistent with the accused's belief that all sexual activity he engaged in with M was consensual.
Thirdly, nothing said by M gave rise to circumstances in which the State has proved that the accused did not believe she was consenting. Furthermore, the account given by the accused in his interview which I find may reasonably be true, in combination with M's evidence, causes me to have a reasonable doubt on the issue.
The defence having been raised on the evidence, has not been negatived by the State beyond reasonable doubt.
Counts 2, 3 - 7: aggravated burglary (s 401(2)(a)); aggravated sexual penetration without consent (s 326) on 18 March 2016
There is no dispute that the accused was in M's house at the relevant time. The real issues in relation to count 2 are:
1.Was the accused in the house without consent?
2.If the State has proved the absence of consent, has the State negatived the defence of mistake (s 24)?
3.Did the accused commit the offence of aggravated sexual penetration without consent whilst in the place?
Before considering the other elements of count 2, I first turn to the allegations constituting counts 3 to 7, namely the five counts of aggravated sexual penetration without consent. Counts 3 and 4 are allegations of oral sexual penetration. Counts 5 to 7 are allegations that the accused penetrated M's vagina with his penis.
The accused does not deny that he and M had sexual intercourse. He did not expressly admit either penetrating M's vagina on multiple occasions, or having oral sex with M. However, as with his answers to the allegations the subject of count 1, his answers to the allegations the subject of counts 3 to 7 were not mere denials. He steadfastly maintained that all sexual acts were consensual. He also admitted engaging in oral sex with M on other occasions.
As already noted, the accused admits that he was in a family and domestic relationship with M.
The issues that arise for consideration with respect to counts 3 to 7 are as follows:
1.Did the alleged act of sexual penetration occur?
2.Has the State proved the absence of consent in relation to each act of sexual penetration?
3.If the State has proved the absence of consent, has the State negatived the defence of mistake (s 24)?
Counts 3 to 7: consent
I do not accept all of M's account of the events that constitute counts 3 to 7 on the indictment. However, I am satisfied beyond reasonable doubt that the accused sexually penetrated M on each of counts 3 to 7.
I note that these events took place within days of M's discharge from hospital. I am satisfied that she was 'still sore from the surgery' and told the accused she was on her 'period'.[209] However, I am not satisfied that each of the acts of sexual penetration was without M's consent.
[209] ts 95.
With respect to counts 3 and 4, M described the accused at one point placing a pillow on the floor for her to kneel on whilst forcing her to open her mouth whilst he placed his penis in it. The act of placing a pillow on the floor, which appears to have been for M's comfort, is somewhat at odds with him otherwise being violent towards her.
Whilst the State does not need to prove either physical or verbal resistance to prove the absence of consent, M did not, at any time, tell the accused that she did consent to the sexual acts. More importantly, when it comes to the acts constituting counts 5 to 7 (the vaginal penetrations), at no time did M tell the accused to stop or attempt to change positions. This is despite the fact that, on M's account, she was forced to engage in sex whilst in an uncomfortable and painful position. On M's account, at some stage she felt like she could not breathe.
Nor does the fact that M told the accused she was menstruating cause me to be satisfied, either alone or in combination with the other evidence, that the State has proved the absence of consent. M readily admitted that she had previously engaged in consensual sexual intercourse with the accused whilst menstruating.
I am satisfied that M would have preferred not to have engaged in any sexual activity with the accused on 18 March 2016. However, the fact that she may have preferred not to engage in sexual activity on 18 March 2016 falls short of proving beyond reasonable doubt that she did not, nonetheless, consent.
I have already noted some of the factors that cause me to have a reasonable doubt as to the accuracy and reliability of M's evidence.
In addition to these issues, the account given by the accused in his interview causes me to have a reasonable doubt in relation to whether or not the State has proved the absence of consent beyond reasonable doubt on each of these counts.
Consequently, the State has failed to prove the absence of consent beyond reasonable doubt on any of counts 3 to 7.
Defence of mistake (s 24) in relation to counts 3 to 7
For the same reasons canvassed in relation to count 1, the defence pursuant to s 24 does not arise in relation to counts 3 to 7 since the State has failed to prove the absence of consent in relation to each count. For the sake of completeness however, I note that had the State proved the absence of consent in relation to any or all of counts 3 to 7, I nonetheless would have found that the State had failed to negative the defence of mistake pursuant to s 24.
In his closing address, counsel for the accused ultimately conceded that s 24 did not apply to counts 3 and 4. I have already noted however, that in his opening counsel for the accused did not confine s 24 to counts 5 to 7.
Notwithstanding the concession made by counsel for the accused in his closing address that s 24 only applied to counts 5, 6 and 7, for essentially the same reasons set out with respect to count 1, I am satisfied that the account given by the accused in his interview, in combination with M's evidence, was sufficient to enliven the defence of honest and reasonable mistake pursuant to s 24 of the Code.
Furthermore, had the State proved the absence of consent beyond reasonable doubt in relation to any of counts 3 to 7, the State would have failed to negative the defence pursuant to s 24 beyond reasonable doubt in relation to all of the counts alleging an aggravated sexual penetration, including counts 3 and 4. The history of the accused and M's relationship, the circumstances in which the sexual acts took place, in combination with the issues that I have already raised, causes me to have a reasonable doubt as to whether the State had negatived the defence pursuant to s 24 of the Code.
Count 2: aggravated burglary (s 401(2)(a)) on 18 March 2016
Obviously, as a consequence of my findings in relation to counts 3 to 7, the aggravated burglary on count 2 alleged to have occurred on 18 March 2016 must necessarily fail.
Nonetheless, I return to count 2 for completeness. I have already identified the issues above.
In addition to the fact that the State has failed to prove the commission of any of the alleged sexual penetrations the subject of counts 3 to 7 as an element of count 2, the State's case fails in relation to the separate element of 'consent' in relation to the accused's presence in the place.
I am not satisfied beyond reasonable doubt that the State has proved that the accused did not have consent to be in the place at the time the acts alleged to constitute counts 3 to 7 occurred. I have already set out M's relevant evidence with respect to the question of consent to be in her house. Some of the relevant evidence included:
(a)When M first saw the accused inside the house (before any of the alleged acts of sexual penetration occurred), although she thought she told the accused to leave, she could not now remember if she did.
(b)Later, M said she argued with the accused, during which time she told him to '[f]uck off, get out of my house. Fuck off'.[210]
[210] ts 107.
On M's version, she also said that after the accused pushed her (before falling against the table) they argued and that she told him to 'f off.' I note that there was no corroboration of this led by the State, such as photos of the broken table or evidence of any injury she might have suffered. Of course the State are not required to lead any evidence to corroborate M's account in order to prove the charge.
In the accused's interview, he described them having an argument after sex because M wanted money for rent.[211] Notably, in cross‑examination M said that the accused had promised to pay rent but never did.[212]
[211] Interview, pages 31 and 37.
[212] ts 113.
Although I am satisfied that M did tell the accused to 'fuck off' and get out of her house, I cannot on all the evidence be satisfied that it was said before any of the alleged acts of sexual penetration took place. If it was said after all of the acts constituting the elements of counts 3 to 7 were complete, then count 2 must fail for that reason alone.
M's evidence alone fails to satisfy me that she withdrew consent for the accused to be in her house prior to any of the acts constituting counts 3 to 7. Her account was equivocal at times. I have already noted some of the issues that cause me to have a reasonable doubt about her reliability as a witness. In addition, her uncertainty in combination with the accused's evidence causes me to have a reasonable doubt on the issue.
Furthermore, even if I had been satisfied beyond reasonable doubt that she had unequivocally withdrawn consent for the accused to be in her house prior to any of the acts constituting counts 3 to 7, the State's case on count 2 would have failed in relation to the defence of mistake pursuant to s 24 of the Code. M's pattern of withdrawing consent for the accused to be in her house and taking out VROs against the accused, and then allowing him to return, including having the orders revoked, in itself enlivens the issue of mistake. I also note that at all times he was provided with keys to M's house. That evidence, in combination with the accused's evidence, causes me to have a reasonable doubt on the issue of mistake.
Count 8: aggravated burglary – s 401(2)(a) – 24 March 2016
The issues in relation to count 8 are as follows:
1.Was the accused in the house without consent?
2.If the State has proved the absence of consent, has the State negatived the defence of mistake (s 24)?
3.Did the accused commit the offence of unlawfully detaining M?
M's evidence in relation to whether the accused had consent to be in the house, or whether she expressly withdrew consent when she saw the accused, falls short of satisfying me beyond reasonable doubt that the State has proved the absence of consent. Again, as with count 2, she conceded that she had difficulty remembering what she may have said to the accused.
In addition, the accused's account causes me to have a reasonable doubt on the issue.
In addition, for the reasons already canvassed with respect to count 2, had the State proved the absence of consent beyond reasonable doubt, the State's case would have nonetheless failed on the issue of the defence of mistake raised pursuant to s 24 of the Code. Again, the cyclical nature of M withdrawing consent for the accused to be at her house and then allowing him to return, including providing him with keys to the premises, causes me to have a reasonable doubt on the issue.
The evidence relevant to the final element and issue on count 8, namely whether the State has proved that the accused unlawfully detained M, still needs to be considered in the context of count 9.
Count 9 – unlawful detention
There is no dispute that the accused was in M's house at the relevant time. The State's case in relation to count 9, unlike count 8, is not confined to the events inside the house.
The issues in relation to count 9 are:
1.Did the accused detain M?
2.Was the detention unlawful?
I have already found that M's evidence, together with the accused's account in his interview, causes me to have a reasonable doubt that he committed any of the sexual offences alleged against him (counts 3 to 7). The totality of the evidence also causes me to have doubt that he was ever violent, or threatened to be violent, towards M prior the events of 24 March 2016.
I have already set out what the State must prove to establish the offence of deprivation of liberty. It is necessary to prove that M's liberty was taken away from her for some period of time.[213] The State must prove that the detention was against M's will.
[213] Mount-Batten Owen v The Queen (5) - (6).
On the accused's account, when he discovered that M had made serious allegations against him including rape, he became angry and upset. He also knew that detectives were looking for him. He understood that if detectives were looking for him, as opposed to uniform police officers, then the matter was serious.[214]
[214] Interview, page 44.
In relation to the events that unfolded inside the house on 24 March 2016, having discovered the nature of the allegations made by M to police, his attitude towards M changed considerably. He was not only shocked to learn of the allegations, but angered by them.
There is no dispute on the evidence that the accused knew that Detective Carr and another officer were at the house. He also admitted in his interview that he told M not to answer the door when the police knocked, albeit he said that M 'agreed'[215] rather than he detained her. The accused also said that he wanted to take M to his lawyer before speaking to police.[216] The accused said that M was scared when the police attended the house. He admitted in his interview that he did not want to speak to the police at that time.
[215] Interview, page 77.
[216] Interview, page 49.
I am satisfied beyond reasonable doubt that M was scared at that time. I do not accept the accused's explanation that M was scared because she had made false allegations against him.
Whatever the accused's motivation was, I am satisfied beyond reasonable doubt that he did threaten M when he discovered the police officers were at the house. I am satisfied beyond reasonable doubt that in the period between the police first attending the house mid‑morning, and returning to the house later that afternoon, that the accused did detain M for periods of time in the sense that her will to answer the door and speak to the police was overborne by the conduct of the accused. She was in the house. I am satisfied beyond reasonable doubt that had M's will not been overborne by the accused, M would have gone to the front door to speak to the police. I am also satisfied beyond reasonable doubt that the accused detained M when he hid in the back seat of her car and directed her to drive him to a doctor's surgery. The detention of M ended at some point after they left M's house.
I am unable to determine the precise time period that M was detained. However, I am satisfied that, based upon Detective Carr's evidence, that the accused detained M in the morning for at least 10 minutes. I am satisfied that he detained M in the afternoon during the time police attended the house until he and M drove away from the house.
The accused does not submit that anything he did authorised, justified or excused M's detention. Consequently, in light of the evidence I have identified I am satisfied beyond reasonable doubt that the accused's detention of M was unlawful.
All the elements on count 9 has been proven beyond reasonable doubt.
Count 10 – threat to kill
Despite the events of 24 March 2016, including the fact that the accused had become aware of the nature of the allegations made by M against him, there is no dispute that in the days that followed the accused was still in contact with M. There is no dispute that on or about 6 April 2016, that is about two weeks after M was detained in the house, the accused agreed to go shopping with M and that he failed to attend her house as agreed. Nor is there any dispute that M called the accused on a number of occasions. During one of their conversations, M alleges that they discussed whether she was going to withdraw the charges and that eventually the accused said 'I never hurt or hit you, but I will kill you'.[217]
[217] ts 108.
The issues in relation to count 10 are:
1.Did the accused make a threat kill, namely say to M 'I never hurt or hit you, but I will kill you'.[218]
2.If said, do the words constitute, or may reasonably be regarded as constituting, a threat to unlawfully kill M?
[218] ts 108.
One of the issues raised by the accused is whether the conversation occurred in 2017 as alleged by the State on the indictment.
The date is a particular only. It is not an element of the offence. Furthermore, despite the fact that count 10 is pleaded as occurring on 6 April 2017 there is no doubt that M's account of when the threat was allegedly made is referrable to the events proximate in time to the acts constituting counts 8 and 9 on the indictment.
I am satisfied that the events the subject of count 10 occurred on or about 6 April 2016, not in 2017.
The accused denies he said the words. He does not submit that if they were said, that anything raised on the evidence could raise the lawfulness of the threatened killing. There is no suggestion that it was a threat to lawfully kill M.
I am satisfied beyond reasonable doubt that on or about 6 April 2016 the accused said the words 'I never hurt or hit you, but I will kill you'.[219] The words used, which when taken literally, could amount to a threat to kill. However, I find that the words spoken by the accused were spoken in temper by him. They also need to be considered in light of all of the evidence relating to his relationship with M. I am not satisfied beyond reasonable doubt that the words, when objectively considered in light of all the evidence in this case, do amount to a threat to unlawfully kill M.
[219] ts 108.
Verdicts
I find the accused not guilty on counts 1, 2, 3, 4, 5, 6, 7, 8, and 10 and direct that acquittals be entered on each of those counts.
I find that each of the elements on count 9 has been proven beyond reasonable doubt. I find the accused guilty on count 9, and direct that a conviction be entered on that count.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DF
Associate to Judge Levy5 JUNE 2020
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