The State of Western Australia v Pinder [No 2] - [2016] WADC 119

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: THE STATE OF WESTERN AUSTRALIA -v- PINDER [No 2] [2016] WADC 119

CORAM: STAUDE DCJ

HEARD: 26 - 29 JULY 2016

DELIVERED : 10 AUGUST 2016

FILE NO/S: IND 1800 of 2015

BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
KENDAL NATHANIEL PINDER

Catchwords:

Criminal law - Trial by judge alone - Sexual penetration without consent

Legislation:

Criminal Procedure Act 2004

Result:

Judgment of acquittal

Representation:

Counsel:

The State of Western Australia : Mr J G Nicholls
Accused: Ms M R Barone

Solicitors:

The State of Western Australia : State Director of Public Prosecutions
Accused: Barone Criminal Lawyers

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

STAUDE DCJ:

Introduction

The accused is charged on indictment that on a date unknown between 27 November 1987 and 18 January 1988 at Melville, he sexually penetrated TL without her consent by penetrating her vagina with his penis.
Upon the application of the accused pursuant to s 188 of the Criminal Procedure Act 2004, an order was made on 30 June 2016 for trial by judge alone. Section 119 and s 120 apply. Section 120(2) provides that the judgment of the judge in a trial by judge alone must include the principles of law that he or she has applied and the findings of fact on which he or she has relied.

Directions

I direct myself, as I would a jury, as follows:
1.The accused is presumed to be innocent of the charge against him. The presumption is not removed unless the court is satisfied beyond reasonable doubt of his guilt.
2.The burden of proof is on the prosecution throughout. The accused does not have to prove his innocence or anything else.
3.Each element of the charged offence must be proven beyond reasonable doubt. Those words bear their natural and ordinary meaning. They denote the highest standard of proof known to the law.
4.My verdict must be based solely upon the evidence presented at trial. I may not inform myself by any other means and I must disregard anything that I have heard or read about the accused or the case outside the court.
5.Neither sympathy nor prejudice may play any part in my decision‑making. I must consider the evidence objectively and dispassionately.
6.The evidence is the testimony of the witnesses given in court, the witness statements read by agreement and the documents received as exhibits. The court is bound to consider all of the evidence presented at trial. It is for me to decide what weight to give to the evidence. I may accept some, but not all of a witness's testimony.
7.The court is entitled to draw inferences from facts established by the evidence. Any inference must be drawn logically. Because the standard of proof is beyond reasonable doubt, I may not draw an inference adverse to the accused, that is, leading to a conclusion of guilt, unless it is the only reasonable inference to be drawn from the facts I find to be established. If there are competing inferences open, and at least one is consistent with innocence, then I should not draw an adverse inference. In deciding the facts in this way I am bound to consider the evidence not in a piecemeal way, but as a whole.
8.What a witness may have said in a statement made out of court is not evidence, but if a witness is shown on a prior occasion to have said something different from what they said in evidence that may affect the credibility of that evidence.
9.In this case the accused elected to give evidence. He assumed no burden of proof by doing so. If his denial of the charge were accepted, or if I found it might be true as a reasonable possibility, he would be entitled to an acquittal. If I were to reject his evidence, it would not mean that he would be found to be guilty. In that event, I would have to decide whether, on the basis of the evidence I did accept, the State had proved the charge beyond reasonable doubt.
10.Pursuant to s 50 of the Evidence Act 1906 I am not required to give a corroboration warning. By s 36BD of the Evidence Act I am bound to warn myself that the absence of complaint or delay in complaining on the part of the complainant does not necessarily mean that the allegation that the offence was committed is false, and to inform myself that there may be good reasons why a person in the position of the complainant may hesitate in making, or refrain from making, a complaint.
11.In this case, as the complainant's testimony is the only evidence of the commission of the charged offence, I must be satisfied beyond reasonable doubt of its truthfulness, accuracy and reliability.
12.I am bound to scrutinise the complainant's evidence with special care, taking into account that the allegation is of a serious sexual crime said to have been committed at least 28 years ago. There is no evidence of prompt complaint and there is no corroboration or confirmation of the evidence of the complainant as to the commission of the offence. No complaint to the police was made before 2014 and, accordingly, there was no earlier investigation of the allegation. In these circumstances both the quality of the complainant's evidence and the forensic disadvantage suffered by the accused warrant careful consideration.
13.Human memory is fallible and the longer the delay in cases of this kind the more opportunity there is for error. It is a matter of common experience that over a period of time a witness may become convinced that a mistaken recollection is true. There are a number of matters that bear on the reliability of the complainant's evidence that will be considered in these reasons.
14.The accused was not notified of the charge until 2014. It will be necessary, therefore, in considering the evidence, to recognise and take into account the extent to which the accused has been disadvantaged in his defence by reason of his own loss of memory as well as the loss of opportunity to adduce evidence in his defence.
15.Accordingly, I would formally direct myself that whilst I am at liberty to act upon the evidence of the complainant to convict the accused, I could not safely do so unless, having scrutinised her evidence with great care and having considered what I have said about the effect of the passage of time on human memory and the forensic disadvantages suffered by the accused, I were satisfied beyond reasonable doubt of its truth and accuracy.

The prosecution case

The prosecution case is that on an unknown date, probably in January 1988, the complainant, then aged 19 years, met the accused, a well-known professional basketball player then aged 31 years, at a nightclub and accepted his invitation to have lunch with him the following day. The accused rang the complainant the next morning to make the necessary arrangements. Subsequently the complainant drove to the accused's residence and took him from there to Fremantle where they had lunch in a coffee shop. On the way back to the accused's residence, the accused invited the complainant to come into his home for the purpose of viewing photographs of his basketball career.
The complainant did so. After the complainant had viewed the accused's photograph albums, the accused, who was sitting on a couch next to her, tried to kiss her. She withdrew from him and stood up. The accused then took her by her left wrist and led her to his bedroom where, over the complainant's protestations and physical resistance, the accused had sexual intercourse with her against her will.
The prosecutor in opening gave significance to the date range specified in the indictment by saying that it was different from what the complainant would likely give. The prosecution took the position that the complainant was mistaken. She associated the alleged encounter with the accused with a celebration of her 18th birthday. That particular birthday was 2 December 1986, but she did not celebrate it until January 1987. The State's case was that the encounter in fact occurred in January 1988, principally, as it appeared to me, because the accused did not acquire the residential unit in which the State would say the offence was committed until October 1987.

Issues

The defence position is that the accused did not meet the complainant at a nightclub or at all, did not have any telephone communication with her, did not have lunch with her or invite her into his home and did not have sexual intercourse with her as alleged or at all. Furthermore, the defence maintains that if the complainant's evidence as to when she met the accused were true, then the accused could not have committed the charged offence because he was not in Western Australia at that time.
Counsel agree that the issues are:
(1)Did the complainant and the accused ever meet?
(2)Did the complainant ever attend at the accused's residence?
(3)Did the accused ever sexually penetrate the complainant; and
(4)If so, did he do so without the complainant's consent?

Elements

There is no issue with respect to identity.
To prove the alleged offence the prosecution must prove beyond reasonable doubt that the accused sexually penetrated the complainant, in this case by inserting his penis into her vagina, and that he did so without her consent.
As a matter of law, any penetration of the outer lips of the vagina is sufficient to amount to sexual penetration. Consent is consent freely and voluntarily given. Consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit or any fraudulent means. The absence of consent is not limited to those examples. A failure of a person to offer physical resistance does not of itself constitute consent.

Agreed facts

The following facts were read to the court on the basis that they were agreed as between the prosecution and the defence (a minute of the agreed facts was marked MFI 1):
(1)The accused commenced his National Basketball League (NBL) playing career with the Sydney Supersonics in 1985 and played for that team for two seasons in 1985 and 1986.
(2)The accused then moved to Western Australia and played for the Perth Wildcats' team for six seasons.
(3)The accused's first season for the Perth Wildcats was in 1987.
(4)The accused's last season with the Perth Wildcats was in 1992.
(5)Between 1985 and 1992 the regular NBL season ran from April to September.
(6)The set of strata title units at unit 6, 38 Rome Road in Melville were only constructed in 1987.
(7)The accused purchased unit 6, 38 Rome Road, Melville on 6 October 1987.
(8)The accused sold unit 6, 38 Rome Road, Melville on 3 April 1991.
(9)Records from the Department of Immigration show that the accused departed Australia from Sydney on 9 November 1986, that he arrived back in Australia at Sydney on 1 January 1987, and that he next departed Australia from Sydney on 5 October 1988.

Propensity

By order made 30 June 2016 the prosecution was permitted to lead as propensity evidence for the purposes of s 31A of the Evidence Act 1906, the facts of three separate incidents in 1988 and 1990 in which the accused sexually assaulted three women aged between 16 and 20 years. The facts of those incidents were agreed and read to the court. A minute of the agreed facts was marked MFI 18.
The first incident occurred on 21 May 1988 at the accused's residence and involved a 16-year-old female victim. The accused made sexual advances to the victim who resisted them physically and verbally. Her resistance was overcome to the extent that two offences were committed; the accused sexually penetrated the victim without consent by penetrating her vagina with his finger and then attempted to penetrate the victim's vagina with his penis.
The second incident occurred on 9 February 1990 in the home of the victim who was a 20-year-old female. The victim verbally rejected and physically resisted the accused's sexual advances. The accused persisted. Again, the accused sexually penetrated the victim without consent by penetrating her vagina with his finger and then attempted to penetrate her vagina with his penis.
The third incident occurred on 6 October 1990, again at the residence of the accused. The victim was a 17-year-old female. Despite the victim's verbal rejection and physical resistance to the accused's sexual advances, he attempted to penetrate her vagina with his finger without her consent.
The accused's age at the date of the three incidents was 32, 33 and 34 years respectively.
The State's case is that the propensity evidence shows a tendency of the accused to persist in his sexual advances towards young women, notwithstanding their objection, and to use physical force to overcome resistance to sexual penetration. I note, however, that in each incident the accused desisted from his attempt to penetrate the victim's vagina with his penis due to the victim's resistance.
The fact that the accused has on three occasions offended in a manner similar to that alleged by the complainant is not evidence that he committed the offence charged. The propensity evidence is relevant because it demonstrates that the accused is a person who is capable of committing a similar offence to that charged. That the accused has offended in a similar manner against other young women within a relatively short period of time after the date of the alleged offence is relevant to the question of whether the complainant should be believed, but it cannot, as the prosecutor conceded in closing, be used in substitution for her evidence, or to make up for any deficiencies in it.

The evidence

There were four witnesses called in the prosecution case: the complainant TL, her father, a former friend of the complainant, SP, and an investigating police officer, Detective Senior Constable Richardson. Two witness statements, by officers of the City of Melville and the Department of Immigration and Border Protection respectively, were read in by consent. A number of documents were tendered as exhibits.
The accused gave evidence in his defence, as I have mentioned, but adduced no other evidence.
I propose to outline broadly the evidence at trial before addressing the issues on which the verdict will turn. That I do not mention every aspect of the evidence does not mean that I have not considered the evidence as whole.

Complainant's evidence

The complainant is aged 47. She was born and raised in Western Australia and lived here until 2013 when she moved interstate.
In 1986 she worked at a nightclub known as Eagle One. She worked occasionally behind the bar, but mainly on the door. The complainant had worked as a fashion model and in nightclubs since she was 16. She met the accused at Margeaux's which she described as a very upmarket nightclub located in the Parmelia Hilton. She gave the impression that she had been there on a number of occasions because she said that she and her girlfriends always stood in the same place when they were not dancing.
On the occasion she met the accused, she went there with two or three girlfriends to celebrate her 18th birthday. None of those persons, whom she named as Julie, Sandy and Martina, was called as a witness. TL said she was no longer in contact with any of them and did not know how to contact them. She could not recall the day of the week that she went to the nightclub. She recalled, however, that she had purchased a special dress from Cue Clothing Company which she described in detail. She said she was very much into clothing and fashion at that time, being a model.
At that time she drank scotch and dry. When she ordered her first drink she was told that it had been paid for, but not by whom. She thought nothing of it because it happened quite often that people would buy drinks for her. She did not recall how many drinks she had, but each time she was told that the drink was paid for.
Later in the night the accused approached her and asked her if she had enjoyed her drinks. She recognised him because it had been in the media that he was coming to Western Australia to play for the Wildcats' basketball team. She played basketball and followed it. She, her father and her sister played and were actively involved in the sport. She knew that the accused had come from America and that he had played for the Harlem Globetrotters.
TL said she thanked the accused for the drinks and told him that she was celebrating her birthday with friends. She said they talked about basketball. She mentioned that her father knew the Ellis brothers who played for the Wildcats. She also talked about how she played basketball also. She described it as a general conversation. Towards the end of the conversation the accused asked if he could take her out for lunch the next day and she gave him her phone number. There was no physical contact between them.
TL at that time lived with her parents in Duncraig. The following morning she was in bed asleep when she was woken up by her father who told her that Tiny Pinder was on the phone. She spoke to the accused and arrangements were made for lunch. He gave her his address and asked her to pick him up. They were to go to Fremantle for lunch.
TL said that she drove to the accused's house via West Coast Highway and Stirling Highway. She said (ts 118):
I know when I was on Stirling Highway I turned left into Mr Pinder's place. I don't know if that was off Stirling Highway. And I turned left into a street and then – I definitely turned left into his building.
TL said that to get to Stirling Highway from West Coast Highway she cut through Subiaco and Claremont. She described his house as one of a group of units. She said 'He had the back left-hand unit'. She thought there were six or eight units in all. When asked about the colour of the exterior, she said 'I feel that they were a light colour but I can't 100% certain'. She remembered there was a small garden bed near the doorway of the unit. She did not go inside at that time. The accused came outside and got into the car.
They then went to Fremantle and had lunch in a coffee shop. She had a sandwich. The complainant said that she was not familiar with the Fremantle area. She was familiar with Stirling Highway, but not the suburbs. She did not know in which suburb she picked up the accused.
At lunch she said they talked about basketball and about her modelling. There was no sexual or intimate conversation or contact over lunch. The accused did not make any kind of sexual advance at all. She was not attracted to him. She was interested in him because he was a star in a sport that she had been involved in all her life. She thought the Globetrotters were the epitome of basketball.
On the way back to his unit the accused invited the complainant to come in and see his photos from his Harlem Globetrotter days. When they arrived at the unit she parked at the front. Inside the unit she and the accused sat on a couch and he showed her some photo albums. When they had finished he put the albums away. He then leant over to try to kiss her. She 'just pulled back and said that I hadn't come here for this'.
She said the accused 'leaned back in his chair and then he got up and he walked around the coffee table'. She then stood up intending to leave. He then grabbed her arm and pulled her across the room towards the hallway. She indicated her left arm just above the wrist. She was 5 feet 8 inches tall and weighed 50 kg. The accused pulled her down the hallway into a bedroom and then 'he sort of pulled me down onto the bed and I sort of struggled a bit and then I got off on the other side of the bed'. She was saying 'I didn't come here for this'. The accused said nothing. Again, TL described the accused pulling her onto the bed. She said there was then a struggle and she managed to get up on the other side of the bed. She was scared. She was trying to work out how to get out.

She said the accused was sitting at the end of the bed opposite a chest of drawers. He moved one way then the other in order to block her exit, demonstrating in court movements of his arms from left to right and back. She said she was very distressed and he was very calm. At one point when she tried to walk towards the door he grabbed her and put her on the bed. With his knees and ankles he held her arms and legs down. She wiggled a lot but could not get out. She was on her back with the accused on top of her. Her arms were pinned under his knees and his ankles were on her legs. His hands were free. She described the accused as very tall and very strong.
When asked to say what happened next she said that there were 'moments of blur' in her memory. She kept saying that she wanted to go home. He started to undo her clothes. She was wearing a pink short‑sleeved, buttoned shirt and white shorts. She said he undid her clothes. She remembered his hand on her upper chest just below her throat. She said he used enough force to hold her down. She could not recall the mechanics of how her clothes came off. She described it as 'a big fighting drama'. Under her clothes she had a bra and a G‑string. There was a point at which she gave up wiggling and crying because she knew 'it was going to happen'.
She remembered the accused being naked, but could not recall how that occurred. She said he then started having sex with her. At one point he turned her over and had sex and then turned her onto her back again and had sex. Then 'when he was finished, it was finished'. TL described three acts of vaginal penetration. She said that it was painful. When she was turned onto her stomach the accused lifted her torso up to effect penetration. The accused ejaculated inside her. He did not wear a condom. TL described the accused's penis and pubic hair.
At some point after he finished he told her to have a shower. She did so. He stood in the bathroom door. She then dressed and left.
She drove home, stopping on the way because she felt scared and was crying. She thought about what she should do. She thought that no‑one would believe her and that as she had had a shower there would be no evidence of anything. She thought about who the accused was and that her father was involved in basketball, and then drove home and went to her room. When she arrived home she recalled her father asking how it went. She could not recall her response, but she thought she said that she did not want to talk about it. She did not recall saying anything to her father about what had happened. She told no‑one else what had happened.
The complainant described the unit by drawing a sketch plan which was received as exhibit 2. On the plan she marked the furniture that she recalled being in the unit and the respective positions of her and the accused in the lounge room of the unit. She described as single-storey unit or villa that had a minimal amount of furniture. She recalled the accused saying that he had not been there for long and had not been in Western Australia for long so did not have much furniture. She thought that was also the reason for him not having a car at that time. She recalled only a couch, a coffee table and a TV cabinet (with a TV) in the lounge room and a bed and a chest of drawers in the bedroom.
TL recalled a second phone call by the accused to her home. This was on the next day. Her parents were at home. Her father told her that the accused was on the phone and she said that she did not want to speak to him. She did not speak to the accused on the telephone on this occasion.
TL identified three photographic images of herself at age 17 or 18 when she was working at Eagle One nightclub. These depict what I would describe as an attractive, fashionably dressed young woman of the age, height and weight given in evidence.
TL said that she first reported a complaint to the police in relation to this matter at Tamworth, New South Wales in March 2014. She was advised to report to her local police station which at that stage was Ryde. Some weeks later she attended at the Ryde Police Station and provided details of her complaint. Subsequently, she gave a formal statement to a police officer at the Auburn Police Station.
TL was cross-examined extensively. I will deal with this part of her evidence topically and make reference to relevant evidence in re‑examination in doing so.
She was asked about when she met the accused for the first time. When asked to confirm her evidence that it was at Margeaux's nightclub, she said 'it was in the Parmelia Hilton, yes'. It was put it to her that in her evidence the previous day she had said it was at Margeaux's. Again, she answered that it was in the nightclub in the Parmelia Hilton. She agreed, however, that she had been clear in her evidence‑in‑chief that the nightclub was Margeaux's. She knew that over time it had different names.
The significance of this exchange is that when the defence opened on the previous day there was an order in place that witnesses remain out of court. Defence counsel in opening submitted that the evidence would show that from 1979 until February 1989 the nightclub at the Parmelia Hilton was called Juliana's; in other words that a nightclub called Margeaux's did not exist at the time of the alleged incident involving the accused.
The complainant was, accordingly, challenged to the effect that she had changed her evidence because she had learned of this overnight. She denied being told that Margeaux's did not exist in that name in 1988. She said 'it's still Margeaux's nightclub for me, it's at the Parmelia Hilton'.
TL admitted that in her statement to police on 6 August 2014 she said that she went to Margeaux's nightclub, making no reference to the Parmelia Hilton. She also admitted that she told New South Wales police, though not, it seems, in a statement, that the nightclub was at either the Hilton or Sheraton hotels in Perth. She was then asked at ts 169:
My question is, if today you say 'I'm 100% sure and I'm always 100% sure about it being the Parmelia Hilton' how was it in 2014 you say to the police 'it was either the Hilton or the Sheraton'? – I suppose my answer could be that I have spent 27 years of my life trying to forget something and when I made the decision to go forward I then spent some time sitting down writing detail and bringing back memories. So that's where I can say that I'm confident.
TL accepted that she had said in her evidence-in-chief that some of her memory was blurred, but she denied that the passage of time had affected her memory even though she had spent a long time trying to forget, as she put it.
In re-examination, TL denied reading any newspaper reports of the trial overnight or watching any television news about the trial. She said she had not read any online reports. She had not discussed the case with anyone. When asked about her evidence as to the location of Margeaux's nightclub, she said that the Parmelia Hilton always had a nightclub. Her recollection was being at Margeaux's at the Parmelia Hilton. She said it could have had a different name at that time.
TL admitted that in 2013 she used Google to find out about the accused. Asked what came up, she answered 'his basketball career, headlines about previous charges, yep'. She said she clicked on three or four pages including the Wildcats' website. She also found links to news stories about the accused having committed offences in Perth and New South Wales. She said she probably searched the articles for about half an hour. She spent only 10 or 15 minutes on the Wildcats' website.
At ts 170:
And what were you looking for? – I'm not really sure. I had just got to a point where I knew – like, I wasn't in a very good place at all in my life and I knew what had happened had affected me and I just was having a wine and I thought that I would have a look and see what was happening now. So I had a look for half an hour and then I closed it and I just thought about what I wanted to do for myself. I'd pretty much already made my mind up.
In re-examination, she said that she made Google searches in relation to the accused in mid to late November 2013. She did not do any searches during the time that she was in contact with the police in relation to the matter.
TL said she made no notes at that time. However, after she made a report to the police it was suggested to her that she make some notes which she did on a piece of paper. Initially she denied giving the notes to the police and said that she put them in the bin. Later she said that she could not remember whether she gave the investigating officer the piece of paper on which her notes were written. She recalled 'something about him asking me to write a time sequence or something'. She subsequently sat down and wrote a chronology, but she could not recall what she did with it. This was done before her first formal police statement was made.
At ts 172:
So this chronology is drafted in between your meeting with Detective Roffe and your statement being drafted by the New South Wales Police? – Yeah. Yeah.
Correct? – Yeah.
STAUDE DCJ: Do you recall that being about two months later? – Look, to be honest, with work – I actually probably work about 60 hours a week when I was working in retail, in quite a stressful environment and I was trying to deal with all the memories that were coming back up for me. And I was having a very hard time, so time zones are a little bit difficult for me to recall when you're working 60 hours in high pressure and bringing up memories of things that you've tried not to remember.
Then at ts 174:
So it's fair to say then that you turned your mind specifically to trying to isolate the time at which this meeting with Mr Pinder occurred? – Well, obviously the goal was to me to remember everything that I could possibly remember. It was quite traumatic. I actually had a psychiatrist that I was seeing at the same time. So, yeah, that was my focus, was to try to bring back everything that I could remember.
But without delving into it, you were discussing these events with your psychiatrist. Correct? – Probably other things that were affecting me as well. Yeah.
She confirmed that in the year prior to her 18th birthday she was working for Eagle One nightclub, having worked there for a couple of years from age 16. In total she thought she worked there for possibly two and a half or three years until Eagle One burnt down in late 1987. She then went to work at Hannibal's nightclub which was owned by the same company. She believed that she was working at Hannibal's by the time of her 19th birthday but said she could not recall the exact timeframe. Hannibal's was in a different location from Eagle One.
It was put to her in cross-examination, and she agreed, that her 18th birthday was an important event. She was sure that she met the accused on an occasion where she was celebrating her 18th birthday with friends. She said she initially told the police this was in December 1986, saying that it could have been a few days before or after her actual birthday. TL said that she at that time was struggling to find a memory of the date, but she specifically recalls that she was celebrating her 18th birthday.
TL admitted that in a supplementary statement to the police she stated that she thought the occasion was in early to mid-January 1987. At ts 178:
And what is it that prompts you to come to the view that it was in January of 87 rather than in December of 86? – The whole process of me trying to remember the timeframe, cos I know I was celebrating my birthday, but I also knew I wouldn't be going out doing any celebrating when I'm busy at work – was in the forefront of my mind because I was still trying to make sure that I was remembering information. When you've spent so long trying to not remember – it was the same as when I initially went in and said could it – one of these two places. And so I just – I just remember it being summer and I remember it being after all the Christmas and New Year trade and that's when we decided to go out. And the girls that I – I know that I was with, Julie, Sandy and maybe Martina, we wouldn't have been able to go out at that time because we were all working. So it was about finding a time when we could go out.
(This evidence is significant because between the dates on which the two statements were made, the police ascertained that the accused was not in Australia in December 1986: DSC Richardson, ts 342.)
In relation to her turning 18 around that time, she said that she recalled telling the manager of the nightclub that it was her 18th birthday. She agreed that was significant because she was then able to work legally at the nightclub. Again, she indicated a specific memory of the nightclub burning down in 1987.
TL remembered the dress that she wore to her 18th birthday celebration. She said it cost a lot of money and that it was a dress that she kept for some time.
She remembered that she knew the accused was coming to play for the Perth Wildcats. She said 'I remember there was an announcement that he had been recruited or there was something anyway'. She knew of the accused before he started playing for the Wildcats. He was not playing for the Wildcats when she said they met, but she knew he had previously played for the Harlem Globetrotters. It is an agreed fact that the accused started playing for the Wildcats in 1987. TL, in re-examination, denied Googling that information.
TL said that the accused told her that he did not have a car which she thought 'was a bit weird', but she remembered a conversation about his furniture; that he told her he had not been there for very long. She said she could not say for certain whether he told her that he did not have a car for that reason. She remembered that that was said in relation to the furniture. It was then put to her that she had told the prosecutor in a proofing conference that the accused also said that that was the reason he did not have a car. She accepted that she had made the statement to the prosecutor and said that it was true. It was then put to her that she had become unsure of what the accused said. She said she could not give an answer for why her evidence varied with what she had told the prosecutor in that respect.
She recalled nothing of significance happening in Fremantle in January 1987. (It was not put to her that the America's Cup regatta was held around that time.)
At various times during cross-examination TL was asked questions about whom she had told of the incident and when. She said that when she returned from the accused's house she told her father, when asked about the meeting with the accused, that she did not want to talk about it. She did not tell her mother. Her sister was no longer living in the family home at that stage.
She recalled telling two persons who were bouncers at Eagle One that she had been attacked but did not say by whom. This occurred within a couple of days of the incident in the back room of Eagle One nightclub. (She was sure it was not at Hannibal's.). She did not recall the names of those persons.
She also recalled that she told a friend of hers, MP, whom she met when she dated MP's brother-in-law. She could not recall the year. She remembered that she and MP started doing modelling work together. It was put to her that she told police that this was in 1987. At ts 190:
Do you recall today telling the police it was 1987? – I recall today telling the police that [MP] was the first person I told. I don't remember the date that I said to them. But if that's what's written, then that must have been what I said. I still today struggle with remembering the date of when I told her.
TL said that she remembered that it was about the time when MP divorced her husband. She said that she told MP the whole story, but could not remember what she told her in detail.
She told some flatmates between 1995 and 1997, her ex-husband around 1998 – 1999, possibly 2000, another person in about 2005, two work colleagues in about 2007 and another person in around 2009. TL admitted that on the basis of her evidence she had told about 13 people of the incident involving the accused. In the case of her parents, she said that she 'blurted it out' to her parents, but never got to have a conversation with them about it. Her mother passed away in 1999. In re-examination TL said that she told her father that she had been raped. She did not say who by but 'just yelled at him and told him it was a basketballer, that it was through basketball'.
She was then asked about why she delayed in making a complaint. She answered (ts 235):
Many different reasons through my life. Many, there were times when I thought that I would go forward and then times when I changed my mind. There were times when I thought – when it was what I wanted to but it was the wrong timing of my life. I went through stages of thinking that no-one would believe me. That was a big thing.
…
I definitely didn't know whether people would believe me. He made me have a shower. I didn't think I had any evidence. I was scared. He was someone that I would have considered as famous. I was embarrassed. I was scared, embarrassed, a mixture of reasons. I didn't want to talk about it with anyone. It was – there was a mixture of reasons. There's no one specific reason.
She recalled telling MP, but could not remember any of the detail she gave her. She said that she remembered thinking, and probably saying to her later, that 'I didn't go forward because I didn't think anyone would believe me'. In re-examination, the complainant said that she could not say how long after the incident she spoke to MP about it. She thought it was months to a year afterwards.
TL recalled seeing media reports about the accused in the 1990s. She had lived away from Perth for three to three and a half years from when she was 19, working and travelling in Singapore, Hong Kong and England. When she returned to Perth she was informed that her mother had been diagnosed with leukaemia. She recalled this occurred when she was 22 or 23. At that time she said she wanted to say something but she decided not to do so because of her mother. She said, 'And I then went on an extremely large downward spiral, so I don't remember a lot of things'. The complainant said that she did not have her old passports (which would prove when she was out of Australia).
She was asked why she did not make a complaint from 1999, when her mother passed away, until 2014. She said that she went through a lot of grieving with her mother and then a divorce in 2004. She said 'I suppose I was just in a really tough time through my life and I didn't – I just didn't'.
Defence counsel then suggested that her complaint was just a story that she told people to get attention, having told some 13 people. It was put to her that she could not have been embarrassed by it and that she was not ashamed. She denied these propositions.
TL admitted that she did not see a doctor or get tested for pregnancy or a sexually transmitted disease. She did not think about those things.
She was then asked about the day she went to the accused's house. She said she went to the address using a map. She said that she gave him her telephone number when they met and that he gave her his address when he called the next day. She recalled having a conversation with her mother and father about the telephone call and being asked why Tiny Pinder was calling. She told them that he wanted to take her to lunch.
TL was asked about the lunch with the accused. Her recollection of the lunch was having a sandwich and walking on a paved area like a piazza. She did not recall the name of the café. It was something she chose not to pay attention to. She said 'I've quite often gone for lunch with friends and not paid attention to where I eat'. She agreed it was a 'standout event' to have lunch with Tiny Pinder because he was a sporting hero. She recalled that her father was excited about it. At ts 185:
What gave you the impression that your dad was excited that you were going on a date? – I think he was excited at the fact that Tiny Pinder had called the house. He'd had a – Tiny Pinder calling the house. What's – you know what I mean? So he's not like a normal person off the side of the street. He is a, you know, famous sporting hero who's about to play basketball for my dad's team.

TL said that it did not cross her mind that this may have been a romantic date. At ts 185:
So a man in a nightclub buys you drinks all night, asks you out to lunch the next day and you say 'it hadn't crossed my mind that all of this was a romantic date'? – It didn't cross my mind.
You'd accept, wouldn't you, it sounds like exactly what a man would do if they were trying to pick you up? – No, I don't accept that, actually.
So you don't accept that buying drinks would suggest that someone was interested in you? – I quite often would have drinks bought for me, so no.
She said that she remembered talking about his basketball career, her modelling and her basketball playing. She could not recall the conversation word for word but she could recall the things that they talked about. She said that the conversation was entirely non-flirtatious and that she did not think that she was on a date. She said that the accused was not attractive to her but she was interested in basketball. It was suggested to her that it was a relatively mundane conversation about her interest in basketball. She said it was not mundane because she was passionate about the sport. The accused did not touch her at all and did not flatter her.
She maintained that there was nothing flirtatious about their meeting at the nightclub.
She was cross-examined with respect to her evidence that the accused invited her in to show her his photographs from the Harlem Globetrotters. She said she remembered the photographs but could not recall if he said trophies also. She admitted that she had told the police that the accused asked her if she wanted to come inside so that he could show her his trophies and photos. When she was taken to this statement she said that she was confident that he mentioned photos and trophies. However, she only saw photographs. She could not recall seeing any trophies. She recalled a couple of albums of photographs of him playing basketball. She could not recall how many Harlem Globetrotter photographs she saw but she remembered seeing photos of him playing basketball in America. She could not say whether they were of the Harlem Globetrotters.
She said she felt no sense of unease going into his home. She described the couch as dark in colour. She thought it was a three‑seater. She described the coffee table as being made of wood and being dark. She could recall a cabinet. She could not recall the flooring. She did not recall there being mirrors on the wall. She recalled that the unit was minimally furnished. She did not recall a dining table. She was questioned about the bathroom. She did not recall the colour. She recalled having a shower and the accused watching her, but nothing else. She confirmed that she was wearing a pink shirt and white shorts.
It was put to her that in her first police statement she said that she had a white shirt and pink shorts. She accepted that her evidence was different but she indicated that it was simply confusion between two colours. She did not recall what the accused was wearing.
In the bedroom she recalled a bed and a dressing table and walls. She did not recall any mirrors. She did not recall a window. She described the dressing table as a drawer cupboard which was blocking her way to the door. She did not recall any built-in robes. She did not recall any colours or any mirrors on the walls.
She was then asked about her evidence concerning how she came to be on the bed. She accepted that in her examination-in-chief she said that she was pulled onto the bed and confirmed that that was her recollection. She was then taken to her police statement in which she said 'Once we got to the bedroom Tiny spun me around which caused me to fall onto his bed'. She recalled making that statement and said that it was true when it was made. She did not accept that there was any difference in her evidence. In re-examination, when asked about the difference between her police statement and her evidence as to how she initially came to be on his bed, she said that she was dragged down a hallway by her left arm.
and then we got to the room and he kind of – he pulled me so I – that's where I kind of spun and fell onto the bed and – yep. Does that answer that question? No. Yeah?
At ts 273 she said, 'So he pulled me and I spun around and fell onto the bed'.
It was also put to her in cross-examination that she told the police in her statement that the accused jumped on her and that she struggled with him for a few seconds before breaking free and that that was different from what she said in examination‑in‑chief. She said that her evidence in examination-in-chief did not go into a lot of detail.
She was also questioned about her evidence‑in-chief to the effect that the accused was sitting at the end of the bed obstructing her from leaving the room by moving his body from left to right. It was put to her that she did not tell the police of this action by him to prevent her from leaving. TL said that she did tell the police interviewer and actually demonstrated it to him. She said she physically stood up and showed the detective what happened, demonstrating a left to right action. She accepted that this was not mentioned in her statement. In re-examination, TL said that he was at an angle towards her, his torso twisted with his arms up. As she moved one way or the other he lent his arms out to indicate that he was blocking her.
She maintained in her cross-examination that when she tried to walk past the accused he grabbed her and put her on the bed. When questioned about which part of the incident was a blur in her memory, she said that she was 'focussing on trying to get out and what to do'.
She was then cross-examined in detail as to what occurred when she said the accused pinned her down, undressed her, and had intercourse with her. In this respect her evidence conflicted to some extent with what she told the police in her first statement. She said in cross‑examination that she could not describe how the accused took her clothes off, but in her statement she gave a detailed account of how her shirt and bra were taken off and then her shorts and G-string. She agreed that she could not describe what happened in the same detail as she had in her statement. She said it was more difficult to do so in court. She maintained however that she was telling the truth and denied a suggestion to the contrary. She said 'I suppose I'm just struggling with being in here'. At ts 232:
So back in 2014 you knew how he came to be naked, that he undressed himself immediately after he took your shorts off but yesterday you can't remember. Is that still the case? – As I said, I'm just struggling a bit at the moment.
The complainant was questioned about her position when she was lying on her front. She described her hands with her palms on the bed and the accused lifting her torso, but agreed that she had not given those details in her statement. She agreed that she did not describe her body position to the police except to say that the accused rolled her over onto her stomach. She agreed that when she spoke to the police she was trying to tell them everything that she could remember. She accepted that she made a considered decision to complain to the police.
It was then put to the complainant that what she said in evidence about the accused ejaculating and then rolling over and lying on her right side was different from her police statement in which she said that he rolled over and lay on her left. She said she had a different memory at this time. She denied the proposition that she was making up her story.
With reference to her evidence about the accused trying to kiss her, she said that she was able to pull away such that there was no physical contact between them. She agreed that this was different from her statement in which she said that he made contact with her lips and that she immediately pulled back. That was how she recalled it at the time. She said at the time of her evidence she did not recall there being any contact with her lips.
TL confirmed her evidence-in-chief that there was a second telephone call from the accused. She said there was no doubt in her mind about that. She agreed that it was not in her statement. She said she told the detective, but 'he didn't put it in'. She agreed that when she read the statement she noticed that it was not included, but signed it anyway. She said she asked the detective about it and was told that it was not an important detail. She said she also spoke with Detective Roffe about her description of the accused moving left and right which was also omitted from the statement, however she said that she did not notice that omission.
She thought the second telephone call was taken by her father. She did not speak to the caller. There was no conversation with her father about what had happened. TL said that years later, after she had tried to commit suicide, she told her parents that she had been sexually assaulted but they never asked her who it was or if she wanted any help. There was no conversation about it. The complainant said that she had no relationship with her father.
TL was cross-examined as to whether she ascertained his address when searching the accused on Google. She denied that she did so. The police did not tell her his address. She told them that it was off Stirling Highway. She had not seen photographs of the house. All she had done was to draw a plan and describe it. She said she was not interested in ascertaining the address. At ts 187:
You have an interest, don't you, Ms *? – I have an interest in presenting what I remember and what I remember is drawn on a piece of paper and described in my description of driving. If that is where the property is, my description and my drawing will match it.
You Googled Mr Pinder because you were interested in what other women had said? – I Googled him because I wanted to see, I suppose, what – where he was. It was more about him, not about other women. That was exactly it, yeah.
Did you Google him to fix holes in your memory? – Absolutely not. I don't need to fix holes in my memory. I have holes in my memory that are quite open to everyone in the courtroom.
Did you Google him to try to piece together a good version of events? – No.
The complainant was cross-examined about her sketch plan of the accused's unit (exhibit 2) and her sketch plan of the bedroom (exhibit 4). She said that where she had drawn the car was perpendicular to the front door. She recalled walking around the car to get to the front door.
The complainant was then shown a number of photographs of unit 6, 38 Rome Road. She could not say whether they depicted the accused's house. She said 'I wish that I could but I can't be 100%'. She said that the shape of the front was as she recalled it. The angle of the door and the front window were the same, but she could not say that it was the same place. She had not seen the photographs before.
In re-examination she again said that she could not be sure that the photographs depicted the house she had described, but she recognised the shape of it. She thought at that time there was a garden bed, but she could not recall where it was.
The first time she had heard of unit 6, 38 Rome Road, Melville was at the trial. She said that she was given the address by the accused but did not remember it. When she heard the address mentioned in court the word 'Melville' rang a bell, but not the street name. She had initially written the address on a piece of paper but did not retain it. She had never attended any court cases or read any reports of any cases in which the address of the accused's unit was mentioned. She had not been informed of the address prior to the trial.

Evidence of MP

MP gave evidence by video-link. MP was called by the State and made available for cross-examination by the defence.
She said that she met TL through her former husband when his brother was dating her. She said she had not worked for Eagle One, but did work at Hannibal's nightclub for a little while. She recalled TL dating her brother-in-law for two or three months, but could not remember the year. She thought that she was around 21 years of age at the time. She was born in May 1965. She thought TL would have been 18 to 19 years of age. Based on her date of birth, TL would have been 21 in 1986 – 7. She could not say when she was married or how long after she was married that she met TL. She thought it would have been about six months. She was married for two years.
From a conversation she had with TL she understood that she had met the accused. The conversation about the accused occurred about one month after she met TL. In re-examination she confirmed that she was around 21 years of age at that time.

Evidence of complainant's father

FL gave evidence that he was the father of TL and another older daughter. His wife died of leukaemia in 1999. The precursor of this disease was diagnosed around 1990. In the mid to late 1980s FL lived in Duncraig with his wife and TL, his other daughter having married and left home.
FL played basketball twice a week and followed the Perth Wildcats. He would attend every home game. He was acquainted with Michael and Glen Ellis through basketball.
He gave evidence of receiving a telephone call at home in the late 1980s from a Perth Wildcats' player. There was only one such call. He said it was probably on the weekend because he would work long hours Monday to Friday. The caller said 'Hi, I'm Tiny Pinder, could I speak to [TL], please?'. He replied 'She's not home', and that was the end of the conversation. FL said that he recognised the voice of the caller as Tiny Pinder's because he had heard him interviewed after matches. He knew him to be a star player with the Wildcats. It was clear from FL's evidence that he recalled that the accused was playing for the Wildcats when he received the telephone call.
In cross-examination he could not say in what year he received that call. He was unable to give any other information about the context of the call. He said the caller did not leave a message and did not say the reason for the call.
The first occasion he had to think about the call was when his older daughter told him that police may be contacting him because TL had reported being raped by the accused. That was in 2015. He had never thought about whether the accused was playing or not at the time of the call. FL rejected defence counsel's proposition that the accused never called his house. He said 'Well, I've just sworn on the Bible to say that he did, and I won't forget it' (ts 292).

Evidence of Susan Jane San Juan

The evidence of Ms San Juan, an officer in the Australian Border Force, was read by consent in response to a request for immigration information relating to the accused. Ms San Juan retrieved the information contained in exhibit 7 which establishes that the accused, travelling on a Bahamas issued passport, arrived at Kingsford Smith Airport, Sydney on 28 January 1986 and departed Australia from the same airport on 9 November 1986. He arrived at Kingsford Smith Airport on 1 January 1987 and next left Australia on 11 November 1988 from the same airport.
The court can safely conclude from this evidence that the accused was out of Australia from 9 November 1986 to 1 January 1987.

Evidence of Aaron Matthew Stone

Mr Stone is an administration trainee for the City of Melville whose statement was read to the court by consent. He, at the request of the police, retrieved information in relation to unit 6, 38 Rome Road, Melville. This information was provided to Detective Senior Constable Stuart Richardson.

Evidence of Detective Senior Constable Richardson

Detective Richardson was involved in the investigation of this matter which was referred to WA Police by New South Wales police investigators. Detective Richardson took three photographs of the exterior of unit 6, 38 Rome Road, Melville on 28 November 2014 which became exhibit 6.
He also discovered information regarding the property on a website called 'ozpropertyview.com', and in particular information relating to the sale of the property in 2008 from which photographs were captured (exhibit 5).
Detective Richardson also made inquiries of the Department of Racing, Gaming and Liquor and also the police liquor licensing section which revealed that a cabaret licence was granted on 12 September 1973 for an area within the Parmelia Hotel. This was known as the Swan Room and later as the Millstrasse Bar. On 14 December 1979 approval was granted for a change of name to Juliana's. On 1 February 1989 approval was granted for a change of name to Margeaux's. The licensed premises were known as Margeaux's until 22 March 2011.
With respect to the accused's unit, Detective Richardson obtained various documents from the City of Melville including an A1 plan of a unit development on Lot 20 Rome Road, Melville bearing an approval date of 6 April 1987 (exhibit 9), an application for planning approval relating to a proposed spa at unit 6, 38 Rome Road Melville dated 15 February 1988 (exhibit 12), a copy Certificate of Title with respect to Lot 20 Rome Road Melville dated 23 October 1985 (exhibit 13.1), a copy of the Certificate of Title with respect to unit 6, 38 Rome Road, Melville dated 6 October 1987 showing the title to have issued to the accused on that date (exhibit 13.2), and a local authority settlement advice notice with respect to the transfer of the property from the accused to others on 5 April 1999 (exhibit 13.3).
Whilst these documents show that the unit was constructed after 6 April 1987 and that the accused was the registered proprietor of the unit from 6 October 1987 to 5 April 1991, they do not prove that he occupied the property or when he did so.
Detective Richardson also made inquiries of the Perth Wildcats' basketball team. The only relevant historical information relating to the accused that he was able to obtain was a printout of statistics from the 1987 National Basketball League season (exhibit 14) which indicates that the accused played all 26 games that season. The Wildcats were defeated by the Brisbane Bullets in a three-match grand final play-off.
Detective Richardson also produced a bundle of screen captures from Google maps depicting Rome Road, Melville showing where the accused's unit was located and the location of the property in relation to Fremantle.
Detective Richardson also produced documents related to an application for planning approval to install a spa at unit 6, 38 Rome Road, Melville dated 15 February 1998.
In evidence-in-chief and cross-examination Detective Richardson was asked about the accused's arrests with respect to the offences of which he was convicted in 1992 and 1993.
He agreed that the statement of material facts with respect to two of the incidents which are the subject of the propensity evidence mentioned that the accused lived at the Rome Road address. He was unable to say what was reported in the media at that time.
As previously noted, Detective Richardson was able to give evidence from the police file that information was received from the Department of Immigration with respect to the accused's movements prior to the complainant being asked for a supplementary statement.
Detective Richardson also stated that he had endeavoured to speak to a number of people who were named by the complainant in her statement, some of whom he was unable to locate.
Detective Richardson did not make any immigration inquiries with respect to the movements of the complainant. He had no means of ascertaining any interstate movements by the accused during the period in question.
He obtained information from the Department of Transport which indicated that prior to 5 July 1989 the accused's address with the Department of Transport of Western Australia was a place in Tasmania. From that date until 1994 his address was recorded as unit 6, 38 Rome Road, Melville.

It was submitted on behalf of the defence that there were significant features of the unit, such as the mirrors, said by the accused to have been installed in the lounge and main bedroom, that one could expect the complainant to have remembered if she had been there. I do not find the lack of detail recalled by TL to be as important in determining this issue as I do her actual memory of the layout of the unit. However, it does go to the reliability of her evidence as to what transpired between her and the accused that she did not remember more.
So, although the complainant's evidence standing alone is unsatisfactory and would not in itself support these findings, FL's evidence of the one telephone call from the accused and the evidence obtained from City of Melville of the plan of the accused's unit enables them to be made by inference.
Beyond these findings, however, I am unable to proceed towards a conclusion of guilt. The complainant's evidence is generally unreliable and cannot be accepted in the absence of some corroboration or other support.
My strong impression of the complainant's evidence was not that she had wholly fabricated an account to falsely incriminate the accused, as the defence submitted, but that she had, over a long period of time, reconstructed in her mind a memory of an encounter with the accused which probably occurred in the summer of 1987 - 88 as the prosecution contends.
The clearest indication of reconstruction is found in the complainant's obviously mistaken account of meeting the accused at Margeaux's nightclub on the occasion of the celebration of her 18th birthday in January 1987 and going to his unit the following day. As the prosecution has acknowledged from the outset, this could not be right.
In January 1987 Margeaux's nightclub was in fact called Juliana's and, as has been noted, the unit described by TL had not even been built. Yet, TL was concerned to pinpoint the occasion at that point in time even to the extent of giving evidence that the accused was recognised by her not because he was playing with the Wildcats, but because she was aware that he had recently arrived in Perth ahead of his first season with the team. It is likely that TL's admitted internet searches in November 2013 revealed this information. The complainant's error infects the reliability of her evidence as to the alleged circumstances of her encounter with the accused.
Her confusion over the name of the nightclub also suggests a reconstructed, rather than actual memory, of the occasion of their meeting, as does her evidence that the unit was minimally furnished and that the accused told her that it was because he had recently arrived in Perth.
There are numerous inconsistencies between the complainant's evidence and what she told the police in her initial report and subsequent statements. Not all of these are material, but in combination they diminish the complainant's credibility. One would expect a truthful witness to give consistent evidence, or to give a reasonable explanation for any inconsistency. The complainant's responses to the challenges made to her on the basis of perceived inconsistencies included trying to finesse the difference as she did in relation to whether she was pulled onto the bed or fell on it (ts 223, 273), blaming the detective who took her statement for leaving things out (ts 245), professing to having a different memory now (ts 241), having difficulty giving an accurate statement because of the time it took (ts 242), and finding it difficult to give evidence in court (ts230, 232). These are examples only. The complainant's tendency to rationalise the inconsistencies pointed out by the defence also had the effect of weakening her testimony.
Moreover, there are aspects of the complainant's evidence that I find are untruthful. I do not accept her evidence that time has not affected her memory. Clearly it has. Her evidence to the contrary was disingenuous. I do not accept her evidence that she did not believe that the accused by buying her drinks at a nightclub and inviting her to lunch and then to his home was expressing a romantic interest in her. The complainant was not an ingénue. By age 19 (when I find it is probable that she met the accused), she had been working in nightclubs for three years. When describing the circumstances of her 18th birthday celebration at Margeaux's she said she always stood in a particular place to the right of the bar (ts 114), indicating that she frequented the place on a number of occasions despite being underage.
I find it probable that the accused had a car at the time he met TL and quite improbable that he was driven anywhere by her. I do not accept the prosecution's suggestion that he may had concealed his car in order to take advantage of the complainant. I also find it improbable that the accused showed the complainant photographs of his basketball career.
It is likely that there was an encounter with the accused of a sexual nature, but on the complainant's evidence, taking into account the directions I have given myself as to the scrutiny with which it must be assessed, I cannot be satisfied beyond reasonable doubt that it involved the alleged sexual penetration. Even if I were so satisfied of that fact, I could not be satisfied to the required standard that it was without consent.
The propensity evidence does not assist me with respect to these critical conclusions, as I have found that I am unable to accept the complainant's account of the alleged offence. It would be illogical and impermissible to reason that because the accused committed sexual assaults on other occasions, that he did so on this one. Nor can the evidence be used in substitution for the complainant's evidence of the alleged offence. In this case, although evidence of other sexual assaults tends to support the likelihood that there was a sexual encounter between the complainant and the accused, proving as it does a tendency of the accused to be attracted to women of 16 to 20 years, and indeed to make persistent sexual advances over their objection, it does not compel an acceptance of evidence that I find to be fundamentally unreliable.

Verdict

Accordingly, the offence of sexual penetration without consent has not been proved and the accused is found not guilty. Judgment of acquittal will be entered.