The State of Western Australia v Ts [No 2]
[2019] WADC 167
•29 NOVEMBER 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- TS [No 2] [2019] WADC 167
CORAM: GILLAN DCJ
HEARD: 15 NOVEMBER 2019
DELIVERED : 29 NOVEMBER 2019
FILE NO/S: IND 234 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
TS
Catchwords:
Criminal law - Trial by judge alone - Alleged sexual penetration without consent
Legislation:
Criminal Code Act Compilation Act 1913 (WA)
Criminal Procedure Act 2004 (WA)
Result:
Accused found not guilty
Representation:
Counsel:
| The State of Western Australia | : | Ms L Tovey |
| Accused | : | Mr M Trowell QC |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Legal Aid - Perth |
Case(s) referred to in decision(s):
Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19
DWM v The State of Western Australia [No 2] [2019] WASCA 143
Longman v The Queen (1989) 168 CLR 79
R v Flannery [1969] VR 586
GILLAN DCJ:
The State of Western Australia has charged TS with one count of sexually penetrating the complainant BL without her consent, by inserting his penis into her vagina contrary to s 325(1) Criminal Code.
TS has pleaded not guilty.
Trial by judge alone
An order that the trial be heard by judge alone pursuant to s 118 of the Criminal Procedure Act 2004 (WA) was made by his Honour Judge Quail on 17 September 2019.
Brief overview of the State case
The State case at trial was that on a day in November 2013 TS was at BL's home in Pinjarra. Another friend, RM, was there as well. After eating together BL was tired and not feeling well and went into her bedroom for a nap. The State alleges BL woke up to find TS penetrated her while she was sleeping and that she struggled with TS until he stopped. She was seen in a distressed state shortly later by RM and she later complained to RM that TS had sexually assaulted her. No formal complaint was made until about a year later when BL's mother became aware of the alleged sexual assault.
Principles of law
It is necessary to remind myself of the various relevant legal principles that have to be applied in coming to a verdict.
I am to apply the same law and procedure to this trial that would have applied had the trial been heard before a jury: s 118 Criminal Procedure Act.
As a matter of law, the following principles apply.
TS is presumed to be innocent of the charge brought against him.
The State bears the burden of proof of the charge. Each and every element of the offence must be proven beyond a reasonable doubt.
TS does not need to prove anything.
This is a criminal trial. It must be determined solely on the evidence, without speculation. Nothing counsel says is evidence and the evidence must be considered dispassionately and objectively. Any feelings of prejudice or sympathy must be put aside.
Part of the evidence of a witness may be accepted and other parts of the evidence by the same witness may be disregarded.
The defence relied upon expert witness Dr Vidovich. I approach my assessment of Dr Vidovich as I would for any other witness. I am not bound to accept and act upon any witness' evidence, including an expert witness' evidence. I may reject that expert evidence if there is other evidence to support my findings or if I conclude that the expert's evidence is unreliable.
TS did not give evidence in this trial. It was TS's right not to do so and no adverse inference may be drawn against TS in exercising his right to silence.
It is part of the State case that BL made a complaint about the sexual assault to RM very shortly after it occurred.
Proof that a complaint was made can never be proof that the event occurred and evidence of prompt complaint is not to be taken as proof that the conduct complained of did occur.
Evidence of prompt complaint is not separate or additional or corroborative evidence that the crimes were committed.
The State led the evidence to show consistency of conduct. It is something I can take into account in considering the credibility of BL and the truthfulness of her evidence but I cannot treat it as separate or additional to her evidence.
However, in judging the credibility and the truthfulness of BL's evidence I am entitled to know how she acted shortly after the events to see whether she acted in a way which I might expect a girl in her position to act after the events of which she has given evidence. The fact of the complaint may bolster her evidence.
Similarly with respect to the evidence that BL was in distress after the events occurred.[1]
[1] Evidence of distress may, or may not, corroborate the complainant's evidence: R v Flannery [1969] VR 586; Azarian v The State of Western Australia [2007] WASCA 249; (2007) 178 A Crim R 19 [44].
Signs of distress may result from any one of several possible causes, it may have been caused by the commission of the offences or it may have been for some other reason, but, evidence of distress itself cannot be used to confirm the truth of the complaints made by BL but it can aid me in assessing the consistency of BL's conduct.
I am also entitled to consider whether the evidence has thrown up anything which might indicate BL had some motive for making a false complaint or for giving false evidence because the possible presence of something of that kind has, as a matter of common sense, the potential to cast doubt on the reliability of BL's evidence.
In considering evidence of motive I must keep in mind that at all times that:
(a)there is no onus on the accused person to point to any such motive or to establish any motive; and
(b)while the existence or possible existence of a motive is something that is potentially relevant, the apparent absence of that is irrelevant and cannot be taken as something which strengthens the prosecution's submission that BL's evidence was truthful.
Elements of the offence
The offence of sexual penetration without consent is provided by s 325(1) of the Criminal Code. To prove the offence the State must prove the following elements.
First, identity, that is, the State must prove that it was TS who did the acts that constitute the offence and not someone else.
Second, penetration, that is, the State must prove that TS sexually penetrated BL. In this case what is alleged is penetration of BL's vagina with TS's penis.
Section 319(1) of the Criminal Code relevantly defines that:
to sexually penetrate means -
a)to penetrate the vagina (which term includes the labia majora), … with -
i.any part of the body of another person; or
ii.an object manipulated by another person,
except where the penetration is carried out for proper medical purposes; or …
e)to continue sexual penetration as defined in paragraph (a), (b), (c) or (d).
So, the word vagina is used in a non-technical way. Any degree of penetration of the outer lips of the vagina is sufficient. Ejaculation is not necessary for penetration to have occurred.
Neither of these elements were really in issue in this case as the fact that TS was present at the house on the day in question and that he penetrated BL's vagina with his penis were conceded by TS. I accept that is the position and for reasons I will set out later I am of the view that the evidence supports such a finding.
Third, that the penetration was without consent, that is, the State must prove that the sexual penetration referred to above occurred without BL's consent. This is the element which is in issue in this case.
By s 324 of the Criminal Code consent means a consent freely and voluntarily given. Consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deception or fraudulent means. A failure of a person to offer physical resistance does not of itself constitute consent to a sexual assault.
The State case
The State case is that on a Wednesday, Thursday or a Friday between 6 November and 22 November 2013 BL, who was then 17 years old, was at her home in Pinjarra with RM, her friend, when TS came to the house. BL's mother and sister were away for a few days and RM was staying with and supervising her.
RM was not there when TS arrived. He had gone to get Chicken Treat for lunch. On RM's return all three of them had lunch. After lunch BL went to her room for a rest. She fell asleep, awoke to find TS on top of her with his penis penetrating her vagina and squeezing her breasts hard. She felt intense pain in her vagina and pain to her breasts. She pushed him to the chest four to five times with force and he stopped. She then found herself to be bleeding from her vagina onto the sheet on her bed.
The State case is that after the alleged penetration, BL was distressed. She went to the toilet to urinate where she saw more blood in the toilet bowl. She then had a shower and dressed. TS had moved to the lounge room he was asked to leave the house which he did.
BL made a complaint to RM shortly after that TS had penetrated her without consent.
No formal complaint was made until about a year later after BL had gone to the doctor and as a consequence of the doctor thinking that she might have had a sexually transmitted infection BL told her mother what had happened and made a complaint to the police.
In respect to the State case I heard the evidence of BL; of her mother SL, who gave evidence of surrounding matters; of RM, a friend who was at the house at the time of these events and also gave evidence of surrounding matters; and the evidence of Detective Senior Constable Hackett who was the investigating officer and who produced an electronic record of the interview the police had with TS on 25 May 2016 and gave some additional evidence about forensic results of testing of a bed sheet.
I will describe the evidence in more detail below.
The defence case
TS has pleaded not guilty to the alleged offence. Through his counsel he admitted that sexual penetration had occurred but says that the sexual activity was with consent and that if it was not, that TS had an honest and reasonable but mistaken belief that BL was consenting.
In the defence case I heard the evidence of Dr Mandy Vidovich, a clinical neuropsychologist, and received her report dated 4 January 2018. Dr Vidovich's evidence was directed towards TS's intellectual capacity and the extent of deficits in his cognitive function.
The defence claims that BL is not reliable and lacks credibility. It is necessary to consider her reliability as a separate manner from her truthfulness. Credibility concerns honesty and BL may be honest but have a poor memory or otherwise be mistaken and this is particularly so in a trial that has occurred a substantial period after the alleged offence are said to have occurred.
It is accepted by the State that I should have regard to what is commonly known as the Longman direction, following Longman v The Queen[2] and DWM v The State of Western Australia.[3]
[2] Longman v The Queen (1989) 168 CLR 79.
[3] DWM v The State of Western Australia [No 2] [2019] WASCA 143.
Longman direction
Sex offences are often in private between two people. In this case the only witnesses who can speak directly about the offending are BL and TS.
The State's case as to consent stands or falls on BL's evidence. She is the only witness to give direct evidence as to what happened during the events complained of and whilst there is other evidence of the surrounding circumstances no one else can or has corroborated her evidence as to the occurrence of the alleged offence itself.
Accordingly, there must be satisfaction beyond reasonable doubt as to the truthfulness, accuracy and reliability of BL's evidence before making a finding that TS sexually penetrated her without consent.
BL's evidence needs to be scrutinised with special care in order to assess her truthfulness, accuracy and reliability and in this regard the delay from the happening of the alleged offence in November 2013 needs to be kept in mind. Each of BL and RM first signed a statement relating to this matter for the police on 9 October 2014 and gave their evidence in November 2019 some six years after the events.
TS was not interviewed by the police until 25 May 2016 at which time the specific allegations were bought to his attention. This is of particularly importance in this case because TS is accepted by the State to have an intellectual disability and difficulties with his cognitive function although the State says what I might make of those difficulties is different to what the defence says I should make of them.
I will come back to this later, but, for reasons I will set out later I accept that because of TS's intellectual disability and difficulties in cognitive function, any delay was likely to make it more difficult for TS to accurately recall an incident that occurred some two and a half years prior to the police interview to him when he was first made aware of the allegations and makes greater the possibility of error in TS's recollection of the incident which gave rise to the alleged offence for the purposes of this trial.
Further, as the matter has only now come on for trial, some six years after the events in question and this will of necessity mean I have to consider carefully the truthfulness accuracy and reliability of the other witness' evidence as well. Human memory is fallible. The longer the delay the more opportunity there is for error.
It is a matter of common experience that the longer a person believes something to have happened, the more convinced the person is that it has happened. This can be so even if the person is mistaken in his or her recollection. Even an honest witnesses can be mistaken in their recollection.
The longer the delay between the alleged incident giving rise to this charge, TS being interviewed and this trial, the more difficult it is for evidence relating to the incident to be fully tested by him.
The delay, coupled with TS's intellectual disability, makes it more difficult for TS to examine in detail the circumstances of the alleged offence even though he has denied a lack of consent and even though he gave an interview to police. However, the delay still places him at a disadvantage in testing BL's evidence as to surrounding circumstances and details which, whilst not necessarily of significance themselves, may have helped to indicate whether she was truthful accurate and reliable.
One example is that in his record of interview TS indicated that he had messages from BL, however, his phone had been lost.
There is a real and apparent forensic disadvantage which arises in any delay especially where, as here, TS has cognitive difficulties.
Taking these factors into account, it would be dangerous to find TS guilty unless, having carefully scrutinised BL's evidence with great care and caution and having paid due regard to it and applying the matters outlined above, I am satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of her testimony. If so satisfied, then I can make findings based on her evidence, which need not be corroborated.
The evidence
There was some common ground. All agreed that BL and TS had known each other since high school, that they had briefly been dating for a time in high school and that each of TS, BL and RM knew each other prior to November 2013.
BL and RM gave evidence that there was a day in November 2013 when TS was present at BL's house with RM when her mother was away, RM had went and bought Chicken Treat and they all ate it together in the lounge room of the house. That evidence was not challenged and I accept it.
BL's evidence
BL's evidence-in-chief was that:
(a)After eating lunch they all watched TV for a time and then, because she had been unwell, BL became very tired and decided to go to bed. She was then dressed in a purple singlet nightie belonging to her mother and a pair of underpants. She went alone down the hallway into her bedroom and laid on the bed on top of the sheets and fell asleep.
(b)She woke up on her back with TS laying on her. Her legs were apart and her nightie had been pushed up to her neck around her collar bones. Her breasts were exposed. She could feel his skivvy against the skin of her chest. TS had his penis in her vagina and was moving back and forth and grunting. There was pain in her vagina.
(c)TS's hands were on her boobs which he was grabbing hard and this was painful.
(d)BL was in shock so did not say anything but tried to push TS off a few times using both hands against his chest. He was taller than her and a lot broader at that time. When he realised she was awake he sat back at the end of the bed and she scurried up to the pillow end of the bed. She then noticed blood on the sheets below where her vagina would have been.
(e)TS was not wearing a condom.
(f)She got up and went into the toilet to 'wee' and while there noticed a lot of blood in the toilet. After the toilet she went into the bathroom and took a shower before going to speak to RM who was lying on the bed in her mother's room. She was a bit upset and told RM about the blood and he thought it was her period.
(g)TS then came up to her mother's bedroom to say he was going to go and as he walked to the front door he said to her 'You can't be pregnant, I didn't finish'. She did not know the time that TS left except it was the late afternoon.
(h)The following day she spoke to RM and asked him what he thought had happened in the room. RM said he thought what had happened was consensual and BL told him it was not.
Under cross-examination BL maintained that she did not consent to having sex with TS and that she woke up to find him on her. In addition BL gave the following evidence:
(a)She had memory problems which led to difficulties in her managing some activities of daily living, she suffered from ADHD and had been recently diagnosed with a psychiatric condition which she described as an unstable personality. BL agreed that RM was at the house to 'baby sit' her because of her memory difficulties.
(b)She accepted that she had sought her mother's permission for TS to come to the house and she had told RM that TS was coming over.
(c)She could not remember if she and TS had been kissing and cuddling on the couch. They might have been but she could not remember.
(d)Her bedroom was small and there was nowhere to hide in the bedroom and the only place for TS to sit in the room was on the bed. If she had seen him she would have asked him to leave.
(e)She had not had sex with TS before but this was not the first time she had had intercourse so she was sure that was what was happening.
(f)She was sure she was not having her period that day because it was not due for two weeks.
(g)She had panicked when she saw the blood which was, to use her words, 'gross'.
(h)She did not tell RM straight away that afternoon what had happened because she was shocked.
(i)She did not remember fully if she told RM that the sex was not consensual or that it was rape, but she looked up rape online that night and took a guess that was what it was.
(j)She did ask RM not to tell her mother about anything because she was scared of what her mother would say and do.
(k)She did show RM the sheet the next morning but did not tell RM that she was going to hide the sheet. She left the sheet on her bed until sometime the following year, between March and June, without washing it. Even after she got new sheets and removed the stained sheet from the bed, she kept the sheet in a plastic bag and later provided it to the police after she made a report to the police about this matters.
(l)She made further disclosure only after she went to the doctor the following year and the doctor thought that she might have a sexually transmitted infection. Then she knew that everything would come out and so she told the doctor and then her mother that TS had raped her. Her mother was angry with BL for not telling her sooner and for not telling the police and so her mother marched her down to the police station to make a complaint. BL had no choice about going to the police.
(m)She had not wanted her mother to know that she had sex with TS whether it was consensual or not because she was scared of her mother. In re-examination BL confirmed that her mother had been angry with her when she had sex with other boyfriends.
BL's mother, SL, gave evidence. There was nothing very contentious about SL's evidence and it can be summarised as confirming that:
(a)SL had been away in November 2013 with her other daughter for a few days.
(b)BL had stayed at home with RM supervising her. It was necessary for BL to have supervision as she could not cope on her own. BL needed to seek permission for any other visitors. This was in part because BL could be a 'bit sneaky'.
(c)BL had suffered from memory problems since childbirth.
(d)BL had rung her to see if TS could come over and SL had said yes.
(e)There was a second phone call when BL was crying and BL had told her that she had a falling out with RM because he was supposed to make TS leave.
(f)When the allegation was revealed, BL did not want to go to the police but SL had made BL go.
RM's evidence-in-chief was that:
(a)He was told by BL that TS was coming over and shortly after he went to get Chicken Treat for all of them to eat.
(b)TS arrived at the house shortly before he had returned.
(c)After they had eaten BL, TS and he watched TV together for about half an hour. BL and TS were sitting on the couch and he was on a dining chair and he was not looking at them.
(d)After some time, RM saw BL get up and go to her room and TS then got up and went to her room as well. The door was closed. After that he saw nothing else.
(e)He did not hear any noises from the room but some half an hour later BL came out. She was crying and had a bed sheet covering her (he did not say if BL had on any clothes beneath the bed sheet). BL went into the toilet and TS left the room and went to the lounge room. BL had blood on her hands when she came out of the toilet.
(f)He saw TS coming out of the bedroom. TS was bare chested and putting on his jeans. TS went into the lounge room.
(g)BL then had a shower, got dressed, went to the lounge room and told TS to leave. TS got up and left the house.
(h)BL went back into her room.
(i)Some hours later that evening, at about 7.00 pm, BL came out of her room. She spoke to RM and told him that TS had raped her. She was still very upset and she went back into her room without eating and drinking that night.
(j)The next day BL showed him the bed sheet with blood on it and she told him specifically not to say anything to anyone about what had happened.
In cross-examination and re-examination RM confirmed that:
(a)He did not recall BL's mother giving instructions that no‑one could come without permission but had heard BL ask her mother on the telephone if TS could come over and BL had told him an hour before he left to get Chicken Treat that TS was coming over.
(b)It took 45 minutes to get the Chicken Treat and TS was there when he got back. He did not know when TS had arrived but had estimated how long TS had been there based on his knowledge of bus timetables.
(c)He would not have seen everything that was happening on the couch and was not watching BL and TS on the couch because he was watching the TV.
(d)BL had gone to her room and when TS followed he was maybe 30 seconds behind BL.
(e)He accepted that he told the police that BL had been wearing shorts and a t-shirt and accepted that was the case.
(f)The next day he had been shown the bed sheet by BL.
The evidence of Detective Senior Constable David Hackett was limited. The relevant parts are that:
(a)He had arranged for TS to be interviewed in Newman on 25 May 2016 and he produced the disk of the electronic record of that interview;
(b)He had arranged the video taping of the layout of the interior of the house at 20A Sibbald St in Pinjarra and to obtain a plan of that house; and
(c)He had arranged a forensic examination of a bed sheet in February 2017 which revealed no spermatozoa on microscopic examination or human saliva in the area tested. The mixed DNA samples taken from the sheet were unsuitable for further testing.
Dr Mandy Vidovich is a clinical neuropsychologist. She was a considered and impressive witness whose evidence was of considerable assistance to me and which I have no difficulty in accepting. Dr Vidovich confirmed that TS did meet the criteria of having an intellectual disability and that her previously expressed reservation about that matter contained in her report dated 4 January 2018 had changed because of further information she had become aware of.
With respect to TS's cognitive functioning I take it from Dr Vidovich's report and her explanation at trial:
(a)That cognitive function was an umbrella term which is used to describe different facets of an individual's thinking capacity. It covered things like a person's capacity for attention and concentration, their memory, the speed at which a person can think about things, a person's language abilities and how a person interprets visual or perceptual information. The term cognitive function was also concerned with higher level thinking components such as planning, organisation and problem-solving.
(b)Cognitive function is assessed using standard forensic tools or tests. Dr Vidovich had undertaken testing on TS to assess those matters and the tests were much broader than simply IQ tests. TS had significant deficits in cognitive function.
(c)TS had performed poorly in working memory tests. Working memory tests test a person's ability to pay attention so as to enable the person tested to uptake information which would then be stored in a long-term memory.
(d)Testing had also shown that TS had deficits in his visual immediate attention and working memory and that he had trouble attempting to mentally manipulate information in his mind. Because of problems with him keeping focused in his attention her opinion was that TS would miss important information or salient components of what was being presented to him which would in turn impact on his ability to process that information and remember it.
(e)A person's recall of historical events can be impacted by many different things such as how long it had been since the event occurred and how emotionally salient or relevant it was to that person in time. If the person had other experiences or other things that happened to them in that relevant timeframe it might interfere with previously stored memories and add inaccuracies or distortions.
(f)Anyone who has a low level of cognition, such as TS, is more likely to have a memory that is vulnerable because of the way that they process or recall information. With persons of a lower level of cognition sometimes their ability to organise a memory and organises their thoughts in a systematic way can be impaired and that will affect their ability to retrieve or bring that material back to mind. People with intellectual disabilities may need more prompts or cues in order to bring some of that their memories to the forefront.
(g)She would be concerned with someone with TS's level of cognition that a lapse of time would make things more challenging for him and such individuals are often more vulnerable to wanting to please, to provide the right information or to help. This means they can sometimes be more agreeable to suggestions that are being presented to them.
(h)In addition people with a low level of cognition can confabulate in their account of what occurred in the past. This means that they recall some information and are correct in their recall of that information but the way in which the information is disclosed contains an element of fabrication or untruth which is not deliberate, it is more about gap filling. It may be that the person is trying to make sense of a situation or it may be that their low cognitive function has affected the way that events have been remembered or encoded in the person's memory.
(i)On watching the interview with the police undertaken by TS she saw evidence of and a tendency to try and please the police officer who was asking him questions. TS was trying to do the best he could in terms of providing information to the police but that she (and other professionals) had all gained the same impression that TS had difficulties with putting together a cohesive, time related, properly sequenced and discrete narrative of events. He made comments in the interview which did not have any context around them. This resulted in sequencing problems and it was difficult to appreciate whether something he was recounting had happened a week or a year ago or the order in which events had occurred;
(j)There was also confusion about the words or concepts that TS was being asked about and that he was using. It was clear to Dr Vidovich that he did not have a very good understanding of some of the sexual matters that he was being asked about. Having worked with TS and watched the video she did not get the clinical impression from him that he was deliberately trying to distort the information he gave to the police.
(k)Where TS was consistent in his version of events that was more likely to mean that what he was saying was a clear memory and was true than where he had added information on being prompted by the police.
(l)To the extent that TS might have seemed unreliable and inconsistent during the police interview this could be because both of the way he processed information and his intellectual impairment affected his ability to express himself. TS's verbal skills were limited so there was a poverty of response which led to the police prompting him to try and extract details. His use of language was at times very simple and basic and, in her view, he did not demonstrate much understanding of abstract concepts. He would have needed more black-and-white types of explanations or questions from the police in order to properly understand what he was being asked about.
(m)Even if TS had an excellent memory for a particular event his capacity to adequately express himself verbally was limited and reduced in relation to others of his age. Care had to be taken when assessing him by reference to people with more mainstream behaviours. One example is that he might laugh about serious matters which did not mean he was treating them as a joke but simply that he was under pressure to communicate and answer.
(n)Some people with a low IQ score could have good adaptive abilities which would mean that their social cognition and their practical application of tasks and the ability to understand concepts could be very good. With others their low level of functioning could be much more variable.
(o)TS was very socially naïve and young in his conversational style and discourse and interaction. His understanding of sex was clearly different or perhaps old-fashioned to that of someone else of his age. For instance, he expressed an understanding that sex meant something that you would do if you wanted to have a baby and that demonstrated a poor understanding of what a sexual relationship entailed.
(p)To Dr Vidovich, TS had a poor understanding of sexual health and sexual understanding and sexual relationships generally. It was evident that he was limited in his knowledge and understanding of theories that were being discussed in the electronic record of interview about sexual intercourse and sexual behaviours.
(q)While TS might have a general understanding of what consent is in the sense of 'yes or no', consent was in reality a complex matter and challenging for even people who are of normal cognitive functioning.
(r)TS was an individual who would be more vulnerable in terms of having difficulty understanding the non-verbal gestures and non‑verbal communications of people he was engaging with. He was likely to have trouble distinguishing between behaviours that might have happened earlier on in a day and a change of circumstances later in the day. Previous interactions could be interpretive in a very concrete black-and-white manner and TS might not be able to apply them to different scenarios and a different setting.
(s)When Dr Vidovich had asked TS about his knowledge or understanding of what a boyfriend and girlfriend were his understanding was very basic very naïve and quite simple given his age at the time of her meeting with him and the testing was undertaken.
(t)At the time of the interview, 25 May 2016, once it was explained to him by the police, TS would have known that penetration specifically meant his penis entering BL's vagina but she was unsure if that understanding would have extended to other types of penetration.
(u)While TS had a rudimentary concept of consent it would not necessarily mean that he understood that if someone had consented at an earlier time that that consent would not simply carry over. For instance if you were boyfriend and girlfriend in the morning and in the afternoon you were still boyfriend and girlfriend, then he may not understand that consent to sexual activity may change over that time.
(v)TS had real difficulties in understanding social cues and so subtle changes in an individual's behaviour would be difficult for him to pick up on. TS was likely, however, to have understood:
(i)the difference between sitting next to or cuddling up to someone and engaging in penile/vaginal penetration;
(ii)if someone had explicitly said to him that they did not want to have sex.
(w)When asked in cross-examination if TS could understand not to have sex with a person who was asleep the doctor's answer was very qualified. Dr Vidovich indicated that it might depend on whether he had recognised that person was asleep, on what he had been exposed to in terms of what porn he had watched, what sex education he had had and his previous sexual experience as well as what had happened earlier between the two participants.
(x)TS's ability to remember things from a visual perspective was very dependent on how complex the information was and the attention he gave to it at the time.
(y)TS, generally, was appropriate in his social interactions and had the normal social graces but he was quite immature in the nature of his conversation and interaction, in the quality of his language and it was evident he did not have a high level of sophistication of understanding. At a very obvious level he would recognise a mean scowl or a bright happy expression, however, the subtle nuances of change in body language would be much harder for him.
(z)TS would have difficulty in multitasking and whilst he could plan very simple activities, if what he was doing was quite tangible and it was evident, he struggled with tasks where he was left to work it out himself. When she had said in her report that he was impulsive in the testing setting it meant that he would act before he had been given all of the instructions and that may mean that he was someone who is more vulnerable to just jumping in without sitting and thinking about the potential consequences.
(aa)With respect to the interview with the police there were times when TS said that he had put things out of his mind but she thought that was a juvenile way of explaining or expressing that he wanted to forget something.
(bb)Her concerns with the interview were that it showed someone who did not really understand what sexual intercourse was and that was a long time after this alleged offence. TS's lack of understanding about what sex was, for instance it was for the purpose of having a baby whereas other things were playing around, would necessarily impact on his understanding of what constituted consent to sex.
(cc)Any person's recall after two and a half years would be difficult but it would be particularly challenging for TS to recall a specific event in a very specific linear manner.
I watched the electronic record of interview during the course of the trial but before I had the benefit of Dr Vidovich's evidence. I re‑watched it in the course of preparing these reasons. In respect to the interview I found the following evidence of TS to be consistent and more likely than other parts to be a true and accurate memory:
(a)TS had sexual contact with BL which included kissing, cuddling, mutual touching of each other's genitals and where he licked her vagina. He had asked if she was ready before his penis had gone into her vagina. The sex did not prove to be satisfactory, he said that there was no spark between them, and the sex stopped.
(b)That sexual contact occurred at a time when he was at her home and her mother was not there.
(c)The sexual contact which he described all occurred on the couch in the lounge room and not in her bedroom. This was a matter on which he was consistent and adamant about throughout the interview.
(d)After the sex stopped BL went to the toilet and she said she was bleeding. He did not have blood on his penis or in his underwear.
(e)He accepted that RM was present at BL's Pinjarra house on a day when he was there and it was probably that day, but, that RM was not present when TS and BL were having their sexual contact in the lounge room. That would not have been right.
(f)TS has been in BL's room at the Pinjarra house to look at photographs and her belongings. While TS did not think that it was on that day he conceded it could have been. I am of the view that his evidence about the timing of when he was in that room is one of the sequencing difficulties that Dr Vidovich gave evidence about and that TS could not accurately recall which day he had been in BL's room.
The issue
In light of the defence admission that TS had sexually penetrated BL by inserting his penis into her vagina, the issue to determine is whether the State has satisfied me beyond reasonable doubt that TS did so without BL's consent.
The State must also, in the circumstances of this case, negate beyond reasonable doubt that TS could have reasonably and honestly believed that she had done given him consent.
State submissions on consent
The State urges on me that I should be satisfied beyond reasonable doubt of TS's guilt. The State says that:
(a)BL is a credible witness who told the truth about the essential facts - that she was asleep on that afternoon in November 2013 and woke up to find TS was penetrating her, moving in her, grabbing her breasts and causing her pain. She had to push him away to have him stop.
(b)RM's evidence confirms that BL and TS went to her bedroom and what occurred in the immediate aftermath - that BL came out of her bedroom upset, covering herself with a sheet, that she went to the toilet and then the shower, she complained about bleeding and later complained to him that she had been raped by TS.
(c)That in some of the material respects, TS's interview with the police confirmed her evidence that he had been penetrating her but had stopped, about the bleeding afterwards and also that she had gone to the toilet afterwards.
(d)There was no evidential basis on which I could find the defence of honest and reasonable mistake of fact made out and the State has negated that defence beyond reasonable doubt because I should be satisfied that TS:
(i)understood the nature of consent;
(ii)knew that BL was asleep when TS started to penetrate her; and
(iii)was capable of knowing and did know, in those circumstances, that she was not consenting.
Defence submissions as to consent and the reliability and credibility of BL
The defence raised the following matters about BL's reliability.
From BL's own evidence:
(a)She suffers from memory loss and had done so since her birth. This she attributed to brain damage from birth which was confirmed by her mother although the extent of any brain damage has never properly been tested. The reason why RM was present at the house is that he was there to supervise BL while her mother and sister were away even though BL was 17 years of age. BL's mother confirmed that to be the case.
(b)She suffers from ADHD and a personality disorder diagnosed in February 2019 by psychiatrist, self-described as an unstable personality. Again BL's mother confirmed those problems.
(c)There were contradictions in BL's evidence, in particular:
(i)her evidence that TS just turned up at the house but in cross-examination she accepted that she had called her mother to ask her mother for permission for him to come over. That telephone call was confirmed by both RM and her mother. BL accepted that this was an example of her memory loss.
(ii)She gave evidence that she knew what the word 'rape' meant but then conceded that she had only told the prosecutor when proofed at best a few days before giving evidence that she had not known what rape was until she looked up on the Internet that night. Further, in cross‑examination she said that she did not use the word rape when she told RM about the incident but use the phrase non-consensual but immediately conceded that she may have used the word rape to describe what had happened to her;
(iii)She testified that she would never lie to her mother or keep anything from her mother because her mother was her hero but in cross-examination admitted lying to her mother about the cause of her being upset during the evening after the events in question by telling her mother that she had a falling out with RM.
(iv)Her evidence that she never saw TS in her bedroom, which she conceded was a small room, was inherently unbelievable and the explanation she gave for that was that she was tired and her eyes were pretty much closed by the time she got into the bedroom. She further said that she was asleep while walking to her bedroom which, the defence says, was a bizarre response.
From the evidence of other witnesses:
(a)That she testified that she had been wearing a nightie and knickers prior to the events but RM remembered her wearing shorts and a T-shirt.
(b)RM's evidence was that she had told him at about 7.00 pm on the same night as the incident that she had been raped whereas BL maintained that it was the following day.
(c)BL said in cross-examination that the conversation with her mother about having had a falling out with RM took place a year after the events but that this was contrary to her mother's evidence that it was on one of the nights she had been away.
(d)BL's mother had asked RM to supervise her daughter because of BL's health and emotional issues and required that she be asked permission for friends to come over. BL's mother also said that sometimes BL could be a bit sneaky with respect to having friends over.
(e)BL would not move from her testimony that she never saw TS in her bedroom even though she conceded it was a small room but RM's evidence was that TS followed her into the room shortly after she entered it, within 30 seconds, so she must have been aware of TS's presence.
(f)BL strenuously denied that she told RM the next day that she was going to hide the soil bed sheet and that was contrary to RM's evidence.
Resolution of the issue of consent
I have reached the conclusion that all of the witnesses generally tried to tell the truth in their evidence but that each of them gave evidence as to how they now perceive the events of a day some six years earlier.
BL's evidence was detailed and had the ring of truth, in particular that she found the penetration to be painful, and some of her evidence was corroborated by other evidence that after the penetration stopped she was bleeding from her vagina.
That said, having scrutinised the evidence carefully I cannot find that BL's evidence was sufficiently reliable that I can be satisfied to the required standard of beyond reasonable doubt that penetration was without consent.
I reach this conclusion because:
(a)BL's evidence was that she has had problems with her memory since birth. Those problems were considerable and sufficient to affect her ability to carry out ordinary activities of daily living. I note that in the absence of evidence about the effects of any diagnosis of ADHD or personality disorder on BL's memory I do not accept those matters were germane to BL's memory of the events.
(b)About this event BL's memory was deficient. One example is that she did not initially remember that she had arranged for TS to visit the house by calling her mother to get permission and telling RM that TS was coming over about an hour before he arrived.
(c)TS told the police that BL was a willing participant in mutual sexual activity that included kissing, cuddling, him touching her breasts, her touching his penis, him licking her vagina and that he had asked her if she was ready before they started intercourse. TS did not budge from that account in the interview.
(d)What TS said about their sexual activities in the lounge room leading up to intercourse which did not then prove to be satisfactory also had a ring of truth about it and so I am not persuaded that what TS said about it was a lie and that I should put his evidence to one side.
(e)I cannot put what TS told the police about BL having engaged in that sexual activity and having asked if she was ready entirely to one side for these additional reasons:
(i)When TS arrived at the house while RM was out and there was opportunity for the sexual activity to have occurred on the couch before RM's return;
(ii)BL's evidence was that she could not remember kissing and cuddling with TS on the couch but she accepted that she could have done so. This is another and important deficiency with her memory of the day.
(f)I cannot be satisfied that when TS went after her to BL's bedroom he did so without her implicit permission or without her knowledge.
(g)BL's evidence-in-chief that she recalled lying on the bed on top of the sheets nearest the window because it was too hot to be under the sheet to be directly inconsistent with her evidence in cross-examination that she was asleep going down the hallway.
(h)RM's evidence that BL had been dressed in shorts and a t-shirt when she was in the lounge room rather than a nightie and underpants was contrary to BL's evidence of what she was wearing in her room. In the absence of evidence that she got changed when she went into her room I cannot be satisfied that the part of her evidence that she was wearing a purple nightie was reliable.
(i)I accept RM's evidence that TS followed BL into her bedroom within 30 seconds of her going in there and they were in there for about 30 minutes and so find that BL's evidence that she did not notice TS in her room immediately after she went in there and the suggestion that he remained without her knowledge to be inherently unreliable.
(j)I cannot, however, accept that RM was reliable in his evidence that when TS came out of the room TS was shirtless and was putting on his jeans. This was denied by TS in his interview with the police when TS said he was wearing tracksuit pants. Further, BL's evidence was that TS was wearing a skivvy and tracksuit pants and also that he did not take the shirt off because she could feel his skivvy on her chest. I therefore cannot be satisfied that RM's evidence about TS's state of undress after BL came out of the bedroom was accurate.
(k)I also cannot accept RM's evidence that BL was covered by a bed sheet. BL's evidence was that she had her nighty on during the sexual assault and she gave no evidence she had taken off what she had been wearing.
(l)I do, however, accept RM's evidence that BL told him at about 7.00 pm that evening rather than the next day that TS had raped her and asked him not to tell anyone. I will come back to what I can make of this evidence later but that is another inconsistency in BL's evidence.
(m)I accept RM's evidence that BL told him that she was going to hide the blood stained sheet particularly because that was consistent with what she then did. On her own evidence BL kept the blood stained bottom sheet on her bed covered by the top sheet and without bringing it out to the laundry to wash it for between five and eight months and, when she got new sheets, she put it in a plastic bag in the laundry and kept it.
(n)I accept BL's mother, SL, where she said that it was an evening while she was away that BL was upset on the phone and BL told her that she had had a fight with RM. BL accepted that she told her mother a lie about that matter because she was scared her mother would yell at her for having had sex with a boyfriend as her mother had previously done so. This meant that fear of her mother finding out that she had been sexually active at all was a motivating factor for BL.
(o)I accept RM's evidence about seeing BL was upset when she came out of the bedroom covering herself with the sheet, about the blood on her hands after BL had been in the toilet and that she was still upset after she had showered and when she asked TS to leave the house.
(p)That is evidence that is capable of bolstering BL's evidence that she had not consenting to having intercourse with TS, however, I cannot find that BL's distress can only be explained by a sexual assault in the bedroom because it was BL's own evidence that the vaginal bleeding was gross and caused her to panic and that she was fearful of her mother finding out about her sexual activities. Blood on the sheet could bring that to her mother's attention.
(q)The evidence that BL told RM that the penetration was not consensual or that she had been raped could be powerful evidence capable of bolstering BL's evidence as to what occurred in private but I do have real disquiet that the parties to the complaint give differing versions and where it was not spontaneous. The complaint came only after BL had investigated something on the internet and 'put two and two together' that she had been raped. The fact of the complaint is insufficient to overcome my other concerns about BL's reliability.
For those reasons and bearing in mind the Longman warning that it would be dangerous to convict unless having scrutinised BL's evidence carefully, I cannot find myself satisfied beyond reasonable doubt that there was no consent to the sexual penetration.
It is clear from what I have said, that I required adequate supporting evidence before being satisfied beyond reasonable doubt on the word of BL as to the commission of the offence.
This does not necessarily involve a rejection of BL's evidence, it simply means I require something additional before reaching a conclusion beyond reasonable doubt.
This verdict of not guilty should not be taken as implying that BL has been disbelieved, or that I had a want of confidence in her. It simply reflects a cautious approach to the discharge of a heavy responsibility.
Mistake
I do not have to consider the question of honest and reasonable mistake of fact further as it does not arise.
Outcome
I cannot be satisfied beyond reasonable doubt that one of the elements of the charge, without consent, has been made out. Accordingly, I find TS not guilty and enter a judgment of acquittal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ED
Associate to her Honour Judge Gillan29 NOVEMBER 2019
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