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  • Unreported Judgment

The Queen v RUJ

 

[2020] QDC 198

DISTRICT COURT OF QUEENSLAND

CITATION:

R v RUJ  [2020] QDC 198

PARTIES:

THE QUEEN

v

RUJ

FILE NO/S:

4721/17

DIVISION:

Criminal

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

19 August 2020

DELIVERED AT:

Southport

HEARING DATES:

27,28 & 30 July 2020

JUDGE:

Muir DCJ

VERDICT:

Count 1 - Rape :  Guilty

Count 2 – Attempted Rape[1]:   Guilty

CATCHWORDS:

CRIMINAL LAW – TRIAL HAD BEFORE JUDGE WITHOUT JURY – VERDICT – where defendant is charged with 1 count of rape, and 1 count of attempted rape or, in the alternative, 1 count of sexual assault – whether the defendant is guilty or not guilty of the charges

CRIMINAL LAW – TRIAL HAD BEFORE JUDGE WITHOUT JURY – ATTEMPTS – whether the defendant’s actions amounted to an attempt to commit the relevant offence

CRIMINAL LAW – TRIAL HAD BEFORE JUDGE WITHOUT JURY – EVIDENCE –  IDENTIFICATION – where complainant met the defendant for the first time earlier in the night – where the complainant had met the defendant sober but had then been affected by alcohol throughout the night – where the complainant identifies the defendant with reference to both circumstantial and direct evidence –   whether the complainant’s evidence established the identity of the defendant beyond reasonable doubt

LEGISLATION:

Criminal Code Act 1899 (Qld) Sch 1 – Criminal Code ss 644, 615, 615B

Evidence Act 1977 (Qld) ss 21A, 21AW, 39PC

CASES:

Domican v The Queen (1992) 173 CLR 555.

Nguyen v R [2012] ACTCA 24.

R v LSS [2000] 1 Qd R 546; [1998] QCA 303.

R v Markuleski (2001) 52 NSWLR 82.

R v Mulcahy [2010] ACTSC 98.

R v MMH [2020] QDC 70.

R v RH [2005] 1 Qd R 180.

R v Sunderland [2020] QCA 156.

Robinson v R (1999) 197 CLR 162.

COUNSEL:

ZA Kaplan for the Crown

M Bonasia for the Defendant

SOLICITORS:

Office of the Director of Public Crowns for the Crown

Fisher Dore Solicitors for the Defendant

Overview

  1. [1]
    On the evening of 29 September 2016, the complainant, who was aged 19 at the time, attended a friend’s 18th birthday celebrations at her friend’s father’s (the defendant) house. It was expected that the party would continue on into the early hours of the morning at a city bar and that the complainant and her friend would return to “crash” the night at the defendant’s house. But after drinking too much earlier in the evening, the complainant was too drunk to go out on the town and she fell asleep in one of the bedrooms at the defendant’s house. In the early hours of the following morning, she awoke to an unidentified man in her room and was subjected to a non-consensual sexual encounter. During the course of this attack, the complainant says she realised her assailant was the defendant.
  1. [2]
    Subsequently, the defendant, who was aged 40 at the time of the alleged offence, was charged on indictment with one count of rape and one count of attempted rape or alternatively sexual assault.
  1. [3]
    On 24 June 2020, the defendant applied for and another judge of this court granted an order that his trial for these charges proceed as a judge only trial.[2]
  1. [4]
    On 27 July 2020, the defendant was arraigned before me and pleaded not guilty to these charges. I heard and received evidence on 27 and 28 July 2020. On 30 July 2020 after having received written submissions and heard final addresses, I reserved my judgment.
  1. [5]
    My role is to determine on the evidence whether the defendant is guilty or not guilty of these charges.
  1. [6]
    In undertaking this task, I must apply the same principles of law and procedure as would be applied in a trial before a jury.[3] The Crown and Defence generally agree as to the appropriate directions that apply in this case.[4] A summary of how I have used these directions is set out below where necessary.
  1. [7]
    As a judge of the facts, as well as a judge of the law, I must bring an open and unbiased mind to the evidence. I must view the evidence dispassionately without emotion. I must take into account all of the necessary warnings or instructions that arise on the facts of the case.
  1. [8]
    The defendant is presumed to be innocent. In determining whether the Crown has proved each and every element of the offences beyond reasonable doubt, three critical issues fall to be determined by me in this case:
  1. (a)
    First, do I accept the complainant as a credible and reliable witness?
  1. (b)
    Secondly, do I accept the defendant’s evidence that he did not enter the complainant’s room on the night in question or commit the alleged offences? 
  1. (c)
    Thirdly, if I do not accept the defendant’s evidence, has the Crown satisfied me beyond reasonable doubt that it was the defendant in the complainant’s room that night; and that the defendant committed the non-consensual acts described by the complainant?
  1. [9]
    In the context above and upon the analysis below, the answers to the questions posed in paragraph [8] above are “yes”, “no” and “yes”. Accordingly, I find the defendant guilty of Count 1 rape and Count 2 attempted rape.[5] 

The Crown Case

Particulars

  1. [10]
    The Crown case is that on 30 September 2016, the defendant entered the bedroom where the complainant was sleeping, woke the complainant and, without the complainant’s consent, penetrated the complainant’s vagina with his fingers (Count 1) and attempted to penetrate her vagina with his penis (Count 2) or alternatively rubbed his penis on the outside of the complainant’s vagina (Count 3).[6]

Count 1

  1. [11]
    For the defendant to be found guilty of Count 1 - Rape, the Crown must satisfy me beyond reasonable doubt that the defendant:[7]
  1. Penetrated the vagina of the complainant;
  1. To any extent;
  1. With his fingers;
  1. Without the complainant’s consent.
  1. (a)
    “consent” means consent freely and voluntarily given by a person with the cognitive capacity to give consent.

Count 2

Penile rape

  1. [12]
    For the defendant to be found guilty of Count 2 – Attempted Rape, the Crown must satisfy me beyond reasonable doubt that the defendant attempted to have carnal knowledge of the complainant without her consent.[8]  Carnal knowledge means the insertion of the defendant’s penis into the genitalia of the complainant.
  1. The offence is complete upon penetration;
  1. Penetration to the slightest degree is sufficient;
  1. Ejaculation is not necessary.

Attempt

  1. [13]
    For the defendant to have attempted to rape the complainant he must have been acting with the purpose of having unlawful carnal knowledge – i.e. inserting to insert his penis into the genitalia of the complainant. Someone who is attempting to bring about a certain result must be meaning to do so at the time of engaging in the conduct which the Crown says was an attempt to commit the offence. This intention on the part of the defendant must be proved by the Crown beyond reasonable doubt.
  1. [14]
    It is necessary for me to consider what the defendant did when, it is alleged, he was attempting to penetrate the vagina of the complainant with his penis. A mere intention to commit an offence does not matter, if the defendant had not started to put his intention into effect, by conduct, i.e. some acts or acts by him which were directed to achieving the defendant’s purpose. Further, the defendant’s conduct must have been something which, if anyone had been watching it, would have made the defendant’s purpose clear. The Crown must prove, beyond reasonable doubt, that there was something done by the defendant which was conduct of the kind which I have just described.
  1. [15]
    Therefore, I must consider the evidence of what the defendant was doing when, the Crown argues, he was attempting to have unlawful carnal knowledge of the complainant. And I must be satisfied, beyond reasonable doubt that he was doing what the Crown alleges he was doing. I then have to consider whether, by that conduct, the defendant had begun to put his intention into effect, and whether the conduct would make it clear to someone watching it that the defendant had the purpose which the Crown alleges.
  1. [16]
    It is unnecessary for the Crown to prove that the defendant did everything which he could have done to bring about the intended result.

Count 3 – as an alternative to Count 2

Alternate Charges[9]

  1. [17]
    Charges 2 and 3 are alternatives. I cannot find the defendant guilty of both.
  1. [18]
    I may consider the possible verdicts in whatever order I wish but, after I return a verdict on count 1 – rape, I will be required to give my verdict first on count 2, the attempted rape charge. It will be only if I reach a verdict of not guilty of that count that I will need to return a verdict on count 3 – the sexual assault charge.
  1. [19]
    In the present case I consider it appropriate to consider the more serious charge of attempted rape first.

Sexual Assault

  1. [20]
    It follows that if I am not satisfied beyond reasonable doubt that the defendant is guilty of attempting to rape the complainant by attempting to have carnal knowledge with her, without her consent, I must then consider whether on the facts as I find them to be, the Crown has satisfied me that the defendant is guilty of the alternative charge of Sexual Assault. To find the defendant guilty of that alternative charge I must be satisfied beyond reasonable doubt that:
  1. The defendant assaulted the complainant by rubbing the complainant’s vagina with his penis without her consent.[10]

A person who strikes, touches or moves or otherwise applies force of any kind to the person of another either directly or indirectly without their consent is said to assault that other person and the act is called an assault.

  1. The assault was unlawful.

An assault is unlawful unless it is authorised, justified or excused by law.

  1. The assault was indecent.

The word “indecent” bears its ordinary everyday meaning.   It is what the community regards as indecent. It is what offends against currently accepted standards of decency. Indecency must always be judged in the light of time, place and circumstances.

Crown lay witnesses

  1. [21]
    The Crown called the following lay witnesses, all of whom were at the defendant’s house at some point on the evening of 29 September 2016 and / or the morning of 30 September 2016:
  1. (a)
    the complainant;
  2. (b)
    the complainant’s friend – the defendant’s daughter TR;
  3. (c)
    BT;
  4. (d)
    BB;
  5. (e)
    KN;
  6. (f)
    JB;
  7. (g)
    DB; and
  8. (h)
    PJ.
  1. [22]
    The evidence of each of these witnesses is analysed and discussed where relevant later in these Reasons.

Police officers

  1. [23]
    The Crown also called Senior Constable Ashlee Davis and (former) Plain Clothes Senior Constable Clare Jackson. Both these witnesses gave evidence by telephone. The evidence of the witnesses must not be given any more or less weight, and no inference adverse to the defendant can be drawn simply because of the way these witnesses gave their evidence.
  1. [24]
    Officer Davis attended Carindale and spoke to the complainant on 30 September 2016. She gave evidence that the complainant was distressed and noted injuries to her arm. She transported the complainant and her friend KN to hospital at approximately 8:30am (after arriving at approximately 7:20am).
  1. [25]
    Ms Jackson was the original investigating officer who was tasked to investigate this matter. She attended the defendant’s address on 30 September 2016 but did not locate him. She found no signs of any forced entry and did not seize the bedding when she returned to the address on 3 October 2016.

Expert witnesses[11]

  1. [26]
    The Crown also called two expert witnesses: Allison De Tina and Cassandra James. As is the usual practice, both of these witnesses gave their evidence by telephone. Again, I must not give that evidence any more or less weight, nor draw any adverse inferences against the defendant simply because of the way these witnesses gave their evidence.[12]
  1. [27]
    The ordinary rule is that witnesses may speak only as to facts and not express their opinions. An exception to the general rule is that persons duly qualified to express some opinion in a particular area of expertise are permitted to do so on relevant matters within the field of their expertise.
  1. [28]
    However, the fact that such witnesses are referred to as experts does not mean that their evidence has automatically to be accepted. I am the judge of the facts and I am entitled to assess and accept and reject any such opinion evidence as I see fit. It is up to me to give such weight to the opinions of the expert witnesses as I think they should be given, having regard in each case to the qualifications of the witness and whether I thought them impartial or partial to either side and the extent to which their opinion accords with whatever other facts I find proved. It is ultimately up to me to decide what weight or importance I give to their opinions or indeed whether I accept their opinion at all.

Allison De Tina 

  1. [29]
    Ms De Tina treated the complainant at the hospital on 30 September 2016. She swabbed the complainant’s low vaginal, vulva and perianal area, but confirmed she did not swab the complainant’s buttocks cheeks.
  1. [30]
    She opined that it was less likely to find vaginal or genital injuries when smaller objects, such as fingers are inserted.[13]  The Crown submitted, and I accept, that it is not unusual that no injuries were found in the examination of the complainant.

Cassandra James

  1. [31]
    Ms James is a forensic biologist and gave evidence as to the DNA findings in the case. She summarised that the swabs taken from the complainant did not have the defendant’s DNA on them, and the complainant’s underwear was deemed unsuitable for testing due to the unknown number of contributors to the DNA located.
  1. [32]
    She opined that it is possible for a person to come into contact with a substance or surface and not leave traceable amounts of DNA.[14] It follows that lack of DNA in the circumstances does not advance the Crown case, but it is not necessarily a weakness. It is just another fact that I must take, and have taken, into account.

Defence case

  1. [33]
    The Defence case is that the encounter as described by the complainant never happened and that the complainant has “made up a bit of a story”;[15] or that to the extent that anything did happen, the complainant is confused and it was not the defendant who entered her room that night.  In this context, during the trial, Defence counsel described the case as “not a consent case.”[16]
  1. [34]
    The only witness called in the Defence case was the defendant himself.
  1. [35]
    I understand that by giving evidence, the defendant did not assume any onus of proving his innocence.[17] The evidence called in the Defence case is simply added to the evidence called for the Crown. The Crown has the burden of proving the guilt of the defendant beyond reasonable doubt, and it is upon the whole of the evidence that I must be satisfied beyond reasonable doubt that the Crown has proved its case before the defendant can be convicted.
  1. [36]
    The issue for determination is not resolved by comparing the complainant’s evidence and the defendant’s evidence and deciding which the preferable version is. Where, as in this case, there is evidence from the defendant, usually one of three possible results will follow. First, if the defendant’s evidence is credible and reliable and provides a satisfying answer to the Crown case, the verdict would of course be not guilty. Secondly, even if the defendant’s evidence is unconvincing, it may nevertheless create a state of reasonable doubt as to what the true position is, in which case the verdict would be not guilty. Thirdly, if the defendant’s evidence is not accepted, that does not lead to an automatic conclusion of guilt. If the defendant’s evidence is unconvincing, I must put it to one side and go back to the rest of the evidence and consider whether, on a consideration of such evidence as I do accept, I am satisfied beyond reasonable doubt that the Crown has proved each of the elements of the offence in question.

General legal principles

Onus and standard of proof[18]

  1. [37]
    The defendant is presumed to be innocent. I must be satisfied that the Crown, who bears the onus of proof, has established guilt of each of the charges beyond reasonable doubt. In order to convict I must be satisfied beyond reasonable doubt of every element that goes to make up each of the offences charged. If I am left with a reasonable doubt about guilt, my duty is to acquit, that is to find the defendant not guilty. If I am not left with any such doubt, my duty is to convict, that is to find the defendant guilty. It is incumbent upon the Crown to prove the essential elements of the charge beyond reasonable doubt. But the Crown does not have to prove everything about which evidence has been given beyond reasonable doubt.[19] 

Separate consideration of each of the charges[20]

  1. [38]
    Two charges and one alternative charge have been brought against the defendant. I must consider each charge separately, evaluating the evidence relating to that particular charge in determining whether I am satisfied beyond reasonable doubt that the Crown has proved the essential elements of that charge. Subject to the direction about alternative charges that I have set out in paragraphs [17] to [19] of these Reasons, I must return separate verdicts for Count 1 and Count 2 (or alternatively Count 3).
  1. [39]
    The evidence in relation to these separate offences is different and I understand that it is not necessary that my verdicts be the same. I must take into account that if I have a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one or more counts, whether by reference to her particular demeanour or for any other reason; that must be taken into account in assessing the truthfulness or reliability of her evidence generally. My assessment of the complainant as a witness is relevant to all counts, but it is necessary to consider the evidence in respect of each count when considering that count.[21]

Assessment of evidence

  1. [40]
    My verdicts must be based on the evidence and only on the evidence. The evidence in this case was comprised of a document entitled “Admissions,”[22] photographs of the defendant’s house,[23] and screenshots of text messages,[24] together with the evidence from thirteen witnesses including the defendant.
  1. [41]
    The complainant is a special witness.[25] Pursuant to an order of the court, her evidence was given remotely from another room with a support person present in that room.[26]  The courtroom was closed, and all essential persons were excluded. The measures for the taking of the complainant’s evidence are routine practices of the court and I have not drawn any inference as to the defendant’s guilt from these measures.[27]
  1. [42]
    In determining whether a witness has an accurate memory of the event about which that witness has given evidence, I must determine the relevant facts according to the evidence considered logically and rationally without acting capriciously or irrationally.[28]  In determining the facts I have used my common sense, individual experience and wisdom in assessing the evidence given.[29]  It follows that I am not required to accept a witness wholly or reject a witness wholly.  I can accept all that a witness has said, or I can reject everything that a witness has said, or I can accept part of what a witness said.
  1. [43]
    Whilst I am not to indulge in intuition or in guessing, in addition to facts directly proved by the evidence, I may also draw inferences, that is, deductions or conclusions from facts that I have found to be established by the evidence. These reasonable inferences must follow from a logical and rational connection between the facts I have found and my deductions or conclusions.
  1. [44]
    The Crown case in so far as it concerns the issue of the identification of the defendant is partly a circumstantial one.[30]  Circumstantial evidence is evidence of circumstances which can be relied upon not as proving a fact directly but instead as pointing to its existence. I accept that both direct and circumstantial evidence are to be considered in this case. It is not necessary that facts in dispute be proved by direct evidence. They may be proved by circumstantial evidence alone, by direct evidence alone, or by a combination of direct and circumstantial: that is, both direct and circumstantial evidence are acceptable proof of facts. I have taken into account that I must consider all the evidence, including circumstantial evidence in this case. And in doing so I have taken into account that to bring in a verdict of guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt should not only be a rational inference but also that it should be the only rational inference that could be drawn from the circumstances. Importantly, if there is an inference reasonably open which is adverse to the defendant (i.e. one pointing to his guilt) and an inference in his favour (i.e. one consistent with innocence), I may only draw an inference of guilt if it so overcomes any other possible inference as to leave no reasonable doubt in my mind.

Relevant facts

Events leading up to the offending

  1. [45]
    In September 2016, the defendant owned and resided at an address in Marsden.[31] He was 40 at the time and single, having separated from his wife a few years earlier.  He is the father of six children. His daughter, TR, had recently turned 18 and arranged with the defendant to have a small gathering to celebrate her birthday with some of her friends at the defendant’s house - before they all were to head out into town to party.[32]  TR usually resided with her mother but would visit her father occasionally.
  1. [46]
    The complainant drove to the defendant’s house in her car arriving between 7:40pm and 7:50pm.[33] At the same time the defendant arrived home after picking TR and her friend JB.[34] The complainant had never been to the defendant’s house before and had not previously met the defendant.[35] She described him as dark-skinned, ‘shortish’ and with “no hair.” [36]
  1. [47]
    The complainant’s evidence was that the four all went into the house and the defendant showed her the bedroom where she would be sleeping that night. This bedroom was located down a hallway to the left (as she walked into the house).[37] TR could not recall asking the complainant to stay the night – she just assumed she was.[38] The defendant denied knowing that the complainant was staying the night or that he showed her to a room.[39] I found the defendant’s evidence entirely unconvincing on this point. He obviously tried to distance himself from the complainant and his evidence did not make sense. For example, under cross examination he accepted that the complainant was outside the house when he had arrived home, but he refused to accept that he went into the house with her at the same time, or that he knew the complainant was staying the night.   He denied showing the complainant the room where she was sleeping, and although TR assumed she had shown the complainant to the room,[40] my impression of her evidence was that she did not have a clear recollection at all about doing this.[41]
  1. [48]
    I accept the evidence of the complainant on this issue. Her unchallenged evidence was that she had driven to the house that night and that she had a duffel bag with her which she carried into the house. This evidence supports her version that she went to the house planning to leave her car overnight because she was going out drinking and that she was staying the night. The complainant had a clear recollection of being taken to the room where she was sleeping that night by the defendant. This makes sense. He was after all the owner of the house.
  1. [49]
    Apart from the complainant and JB: TR’s friends KN, DB, J[42] and her ex-boyfriend BT, also come to the defendant’s house at various times during 29 September to help celebrate TR’s birthday.   The defendant’s two friends PJ and L[43] also dropped in for a drink on the defendant’s invitation that night. BB, a tenant who lived with the defendant at the time, was at work and absent from the house between 6:00pm on 29 September 2016 until 6:00am on 30 September 2016.[44]
  1. [50]
    The overwhelming evidence was and I find that: the complainant drank excessively in a relatively short time frame while at the defendant’s house on 29 September; and due to her level of intoxication, she did not go to the city. This finding is supported by the following evidence which I accept:
  1. (a)
    the complainant was drinking rum and cokes, along with some tequila and vodka mixed drinks, and was doing so quickly;[45]
  1. (b)
    the drinks were made by her or others and were strong with a fifty-fifty ratio;[46]
  2. (c)
    the complainant had possibly more than 10 of the mixed drinks,[47] and in addition, she was having “lots of shots”[48] and drinking tequila from the bottle;[49]
  3. (d)
    the complainant was so intoxicated that she was vomiting;[50]
  4. (e)
    TR recalled the complainant was “pretty intoxicated,”[51] and remembers her being passed out on the bed;[52]
  5. (f)
    BT said the complainant was drinking relatively quickly,[53] was “quite intoxicated” to a high level;[54]
  6. (g)
    whilst KN did not initially describe the complainant as being “really drunk,”[55] she accepted that she had used that phrase in her initial police statement,[56] and gave evidence that the complainant was outside closing her eyes,[57] and that she had to get a bucket for her;[58]
  7. (h)
    DB observed the complainant stumbling around a little bit, slurring a tiny bit, and could tell she was drunk from general conversation.[59]
  8. (i)
    PJ saw the complainant drinking from a bottle of tequila in her hand,[60] that she had alcohol on her clothing,[61] and that she was stumbling around and slurring her words,[62] and heard her vomiting.[63]
  1. [51]
    PJ and L left the address well before 10:00pm that night.[64] JB, J, DB, KN and the defendant all left the house at approximately 11:40pm to go to the Victory Hotel in the city.[65] TR, BT and the complainant remained at home.[66]
  1. [52]
    At some point in the evening prior to the departure of those who went into the city, the complainant went back outside with the others who were drinking and she was “drinking waters” and chatting with them.[67]  Afterwards as the group were ordering Ubers to go into the city, the complainant went into the bedroom at the back of the house [where she had left her duffel bag when she first arrived] with KN, DB, J and JB and she lay on the bed due to her level of intoxication. She recalled DB was giving her water. Under cross examination she described “trying to sober up.”[68]
  1. [53]
    The complainant could not recall the defendant in her bedroom at that point but during her evidence in chief she recalled that he had been outside with everyone else and she “thought” he was wearing jeans and a button-up shirt, a dark one.[69] She accepted under cross examination that she remembered at some point during the evening the defendant came out of his room wearing different clothing – suggesting that he was getting ready to go out.[70] Again she recalled a button up shirt and some jeans – although she was not sure of the colour of the shirt.[71]  The complainant was asked under cross examination “was he [the defendant] wearing a polo shirt perhaps?”[72] But she was sure that he was not. 
  1. [54]
    The complainant estimated the group [which included the defendant] headed into town around midnight – but the evidence which I accept was that it was around 11.40[73] that the group left for the city.
  1. [55]
    The complainant went straight to bed in the back bedroom. Despite having pyjamas with her, she went to sleep wearing a black crop top with no bra and a black leather skirt and G string underpants.[74] The complainant slept through until 4.00am when she woke up to go to the bathroom.[75]  There were no lights on when she first woke up. The only light she turned on was the bathroom light which she turned off before going back to where she was sleeping.[76] On her way to the bathroom, she saw the defendant’s daughter, TR, and her boyfriend BT asleep on the floor in the lounge room.[77] The complainant went back to the room and bed where she had been sleeping. She left the door open before going back to sleep.[78]
  1. [56]
    The defendant arrived home at 3:46am on 30 September 2016,[79] having left the Victory Hotel alone “near closing time.”[80] His evidence (in chief) was that he came home and went straight to sleep after getting changed into his pyjamas. He could not recall whether he required assistance to enter the house.[81] The evidence of his daughter, TR was that she recalled waking up at an unknown time to the sound of keys at the door and falling back asleep, but in cross-examination she accepted that it was possible that she got up to let the defendant in.[82] TR’s boyfriend, BT gave evidence that he specifically recalled TR letting the defendant in, after which the defendant went to the kitchen, turned the kitchen light on, got a drink of water from the kitchen and then turned the kitchen light off and went to bed.[83] BT’s evidence, which I accept as being the clearest picture of the defendant’s return to the house, was that it was dark when the defendant returned home;[84] that the last he saw of the defendant was when he went into his bedroom;[85] and that the kitchen light had been the last light he remembered being turned on.[86] BT then went back to sleep in the lounge area with TR and did not wake up until around 6 or 7am.[87]
  1. [57]
    TR, however, gave evidence that she woke up a second time, after she had gone back to sleep when her father returned home, and saw a figure walking down the hallway towards the area of the house where the complainant was asleep.[88] She positively identified the figure as her father based on the figure or ‘shadow’ of the person and the fact that no one else had his body type,[89] and denied that the figure could have been the complainant.[90]
  1. [58]
    I reject the Defence submission that this evidence was vague and unconvincing.[91] I find that TR’s inability to recollect the precise time she saw the figure is unsurprising given that she did not speak to her boyfriend about it,[92] “didn’t think much of it” and “fell back asleep.”[93] I also think it unlikely that she would have mistaken the figure of her father for the complainant as it is reasonable to infer that TR would be familiar with her father’s figure and how it appears in relation to the various fixtures of his house,[94] notwithstanding that she lived mostly with her mother.[95] TR was also clear in her evidence that the occasion she saw the figure in the hallway was a distinct occasion which happened after her father had returned home,[96] although she conceded that whilst she recall the “feeling” of having seen her father,[97] she had been reminded of the memory of seeing her father’s figure in the hallway only when reading her statement prior to giving evidence.[98] Given the trial occurred almost 4 years after the events, I find it understandable that a witness’ memory may have been refreshed after reading a contemporaneous statement. Even if I am wrong about this, I consider TR’s evidence on this point to be corroborative of, rather than integral to, my overall verdict in this matter.

The offending

  1. [59]
    The next thing the complainant recalled (after the events described in paragraph [55] above) was the blanket she was sleeping under being pulled off her. She turned around and saw a person there with no pants on and a button up shirt with half of the buttons undone.[99] She saw that there was light coming in from outside the room, but she could not recall where the light was.[100] The complainant gave evidence that she saw a light coming in from the open door.[101]
  1. [60]
    The Defence submitted that the complainant’s evidence about the light was not supported by any other witness, referring to the evidence that:
  1. (a)
    TR could not remember waking up to a light being turned on;[102]
  1. (b)
    BT only remembered the kitchen light being turned on before the defendant went to his bedroom with no other light being turned on;[103] and
  2. (c)
    The complainant contradicted herself when she told DB that there was no light on.[104]
  1. [61]
    I accept the evidence of the complainant that there was some light coming into the room for two main reasons.
  1. (a)
    First, the Defence submission overlooks that there was no evidence that TR or BT were awake of the time of the offending – so it would not be possible to for them to know what lighting was on at the relevant time. There was also no evidence from either of these witnesses about what they saw after the offending took place.
  1. (b)
    Secondly, the complainant frankly accepted that the room was not well lit in that light was “coming into the bedroom from the rest of the house,”[105] and conceded that she did not recognise the person initially.[106] But she denied that it was too dark to see the face of the person in that room.[107] She
  1. [62]
    The complainant then recalled that her hand was grabbed and placed upon an erect and circumcised penis.[108] Contact was only made instantaneously as she pulled her hand back immediately.[109] The perpetrator was whispering to her and moved her onto her back. She tried pushing the person away, but he persisted in pulling down her underwear.[110] At this point, the complainant touched the person’s head and realised that he was bald.[111]
  1. [63]
    It was at this time the complainant formed the view that the person was the defendant.[112]
  1. [64]
    A jostle for the complainant’s underwear ensued. The perpetrator kept pulling them down and the complainant kept trying to keep them up.[113] Despite the complainant’s vocal and physical protests, the perpetrator was able to pull the complainant’s underwear past her knees.[114]
  1. [65]
    The perpetrator pushed the complainant onto her left-hand side, so she was facing the wall. He pushed his penis into her buttock cheeks.[115] He repeatedly told her that she would enjoy herself, over her protestations and requests for him to stop.[116] He wedged his knee between the complainant’s legs, above her knees.[117]
  1. [66]
    The perpetrator rolled the complainant onto her back[118] and penetrated her vagina with two fingers.[119] The perpetrator’s fingers went ‘middle knuckle deep’ into the complainant’s vagina.[120] The complainant described this as “the defendant started fingering me”.[121] She described that this occurred for 20 to 30 seconds.[122]
  1. [67]
    While this occurred, the perpetrator was still whispering to the complainant that she would like what he was doing. The complainant got more frantic at this stage and told him to stop, that he was her friend’s dad and what he was doing was not okay.[123]
  1. [68]
    The perpetrator exposed the complainant’s breasts, he fondled them and her nipples.[124] She was able to pull her underwear back up her legs when this occurred.[125]
  1. [69]
    When the perpetrator stopped fondling her breasts, he pulled her legs further apart and “started trying to insert his penis into my vagina.”[126] The perpetrator was on top of the complainant who could feel the perpetrator’s penis pressing against her vagina[127] which was not lubricated.[128] The complainant gave evidence that she could feel the pressure of the perpetrator’s penis being pressed against her vagina.[129] She stated her underwear had been pushed to the side, when he attempted to do this.[130] The complainant described this point as when: 

“I started to get really scared, and I started telling – I was telling him to stop and that I was a virgin because I didn’t want to do it, and he wouldn’t listen.  At this point I told him that I was going to scream which is when he stopped.”[131]

  1. [70]
    The complainant thought she had told the police in one of her statements that she had told the person in the room she was a virgin but it was accepted by the Crown that the complainant did not mention this fact in any of her statements or electronic recordings with police.[132]  The Defence submitted that this affects the reliability of the complainant’s evidence about the incident. But nothing turns on this issue. I accept her evidence at trial about what she said. It is reasonable to infer that the complainant may have overlooked or have been embarrassed about such a statement.    
  1. [71]
    The perpetrator persisted for a short while longer before getting off her and the bed.[133]
  1. [72]
    When the perpetrator got off of the bed, the complainant, “[could] clearly make out his face and he was – he just looked at me angrily and didn’t say anything and left the room.”[134] The complainant stated it was only “after [she] saw his face that [she] was certain” that the perpetrator was the defendant.[135]
  1. [73]
    The complainant estimated that the total period of time, from the moment the blanket was pulled off of her until she saw the perpetrator leave the room she was in, was 15 to 20 minutes.[136]

Aftermath & Preliminary Complaints

  1. [74]
    The complainant lay in the bed for “a bit” and texted KN, JB and DB,[137] making immediate disclosures about a sexual encounter with the defendant.[138] “Eventually,” the complainant phoned her friends, who were together at an address in Carindale, and made further disclosures over the phone.[139]
  1. [75]
    As a result of the messages and phone conversation, DB organised an Uber ride which the complainant from the defendant’s house at 4:42am that morning.[140] The complainant stayed on the phone with her friends throughout the Uber ride to Carindale.[141]
  1. [76]
    During the phone conversation, the complainant told KN what happened.[142] KN said that she had a telephone conversation with the complainant shortly after the incident where the complainant said that the defendant forced his fingers into her vagina and was trying to penetrate her vagina with his penis.[143] The disclosure was largely consistent with the complainant’s version. The fact that KN did not say the complainant told her she touched a penis is of no moment.
  1. [77]
    The complainant arrived at DB’s place in the early hours of the morning where she made some further disclosures about what occurred to JB, DB and KN. She was highly emotional.
  1. [78]
    JB gave evidence that he received a message from the complainant that “[TR]’s dad had just tried to do shit to me, I woke up and he was naked on top of me.”[144] The Defence submitted that this account is at odds with the complainant’s version which included waking to the blanket being pulled off and being made to touch a penis. But this overlooks that JB did not push the complainant for any further detail about exactly what had happened. It is also understandable, in my view, given the immediacy of the complaint, the fact that similar messages had been sent to multiple people, and that the complainant had not yet left the scene, that the complainant’s initial messages would contain only a brief or truncated “headline” version of events to quickly alert her friends to what had happened, or perhaps solicit their assistance. Indeed, it was one of these friends who organised an Uber to collect the complainant from the defendant’s house.
  1. [79]
    DB said that he spoken to the complainant at 4.00am and he was told by her that the defendant had “stripped naked and gotten on top of her.”[145] He did not explore this any further with the complainant. The Defence pointed to his concession in cross-examination that he was told by the complainant that there were no lights on as being contrary to the complainant’s evidence – and a crucial inconsistency.[146] I reject this submission. I do not accept this evidence as inconsistent; the complainant did not say that there was a light on in the room. Her evidence was that there was some light coming through into the room.
  1. [80]
    The complainant then went to bed and fell asleep after speaking to KN for a while longer. She woke a short time later and had, what she described to be a ‘mental breakdown.’[147] The complainant found a knife and used it to cut her left forearm.[148] Emergency services arrived 20 to 30 minutes later and the complainant was taken to hospital and assessed by a forensic nurse. Swabs were taken of her vulva, low vagina and perianal area. The complainant provided a statement to police that day.
  1. [81]
    The Defence submitted that when the complainant spoke to the first response police officer her evidence was that, he was “trying to finger her”[149] and that this adds a layer of uncertainty in the complainant’s mind as to what occurred in that room. I reject this submission. The evidence I accept was that the complainant was highly emotional at the time. And in any event, it is uncontroversial that the complainant went on to explain in some detail to the police the details of the offending consistent with her evidence in court.  
  1. [82]
    The Defence submitted that the truthfulness and accuracy of the complaint evidence are problematic such that it is appropriate that I give myself a Robinson Direction as follows:[150]

I will need to scrutinize the evidence of the complainant with great care before I could arrive at a conclusion of guilt. That is because of the following circumstances:

  1. (a)
    Her allegations are not corroborated.
  1. (b)
    Her memory was clearly affected by alcohol.
  2. (c)
    Her recollection likely to be drug-affected.
  3. (d)
    She lied about cannabis consumption.
  4. (e)
    Differences in her versions to others, in particular:
    1. To DB that there were no lights on;
    2. To JB that she woke up to the person naked on top of her; and
    3. To Senior Constable Ashlee Davis that “he tried fingering me.”

I should only act on the evidence if, after considering it with that warning in mind, and all other evidence, I am convinced of its truth and accuracy.

  1. [83]
    I accept that in order to find the defendant guilty I must accept the complainant as an honest and reliable witness – and that her evidence is uncorroborated. But I reject for the reasons that follow that it is necessary to give myself a Robinson Direction in this case.

Complainant’s intoxication 

  1. [84]
    The Defence submitted that the evidence shows that the complainant was so grossly intoxicated that it would “only lead to an inability to provide a reliable version”.[151] But this submission overlooks that whilst I accept that the complainant was heavily intoxicated the evening before she was not in such a state at 4am the next morning.  Such a suggestion was put to her and was refuted.[152]  She stopped drinking at some point prior to midnight. When she woke up to go to the toilet, she was in a haze, but she was not feeling disorientated and was completely sober.[153] I accept the complainant’s evidence on this point.  It is consistent too with other evidence:  including that she had no trouble walking to the toilet at 4.00am; and shortly after the incident she spoke to a number of friends, the police and ambulance officer and there was no evidence of her being intoxicated (or under the influence of drugs) at that time.

Use of drugs

  1. [85]
    The Defence also referred to BT’s evidence that the complainant had been consuming cannabis.[154] BT’s evidence was very general. He said initially that he saw “everyone” have it – but he then resiled somewhat, stating it was just the complainant, KN and DB that he saw consuming cannabis.[155]  There was no evidence about how (by utensil or cigarette)[156] or where the cannabis was being consumed or in what quantity. That cannabis was being consumed at the party is corroborated by PJ – he smelled cannabis when he arrived although he did not see the complainant smoking cannabis. The complainant denied “smoking” cannabis.[157] TR did not see the complainant or anyone smoking cannabis. The defendant was not asked about this issue. There was no other evidence from any other witness about the consumption of cannabis.
  1. [86]
    Whilst I am satisfied that there was cannabis being consumed at the house on 29 September, I am not satisfied on the uncorroborated evidence of BT that the complainant was consuming cannabis that night. Even if the evidence supported a finding that the complainant had consumed cannabis that night, that she did not tell the truth about that fact before me may be explained by her concern as to the consequences of such an admission (the question was asked without notice and the complainant answered no very quickly so she was not warned prior to the question being asked). But even if I accepted that she lied about this issue, which may not reflect well in terms of her credit, it does not affect my overall assessment of the complainant as set out further in the Reasons as a reliable and credible witness about the crucial elements of the case – that is, about what happened in the room with the defendant.
  1. [87]
    The Defence submitted that the smoking of cannabis would have added to the level of the complainant’s level of intoxication. But I cannot speculate on such matters. There was no evidence of the quantity or quality of cannabis nor any expert evidence about the effect of cannabis & alcohol consumption combined and/or in excess.

Inconsistencies in the preliminary complaint evidence

  1. [88]
    The Defence submitted that the different accounts given by the complainant to the preliminary complaint witnesses whose evidence I have discussed at [74] to [79] above about what occurred, would cause me to scrutinize the complainant’s evidence with great care such that I would have concerns about the reliability of her evidence.
  1. [89]
    The evidence from these witnesses is of course not evidence of the fact that the offences took place.[158]  But this evidence may support the credit of the complainant depending on whether it is consistent or inconsistent.[159] I accept that the preliminary complaint evidence contains some inconsistencies.[160] I have scrutinised the complainant’s evidence in light of these inconsistences.
  1. [90]
    Having done this I reject the Defence submission that I would have concerns about the honesty and reliability of the complainant’s evidence because of the preliminary complaint evidence for three main reasons. First, the complainant was highly emotional at the time and in the immediate aftermath it would not be expected that she would recount every detail of what had happened to her over the 15 to 20 minute period the perpetrator was in her room. Secondly, the complainant was not asked by any of the people she texted or spoke to at this time to go into further detail about what had happened. Thirdly, inconsistencies are to be expected and none of the discrepancies identified cause me any concern about the reliability of the complainant’s evidence about her sexual encounter with the defendant.
  1. [91]
    I find that contrary to the Defence submission, the preliminary complaint evidence is consistent with the evidence of the complainant and supportive of the complainant’s credibility, reliability, consistency and accuracy.
  1. [92]
    Overall, I accept the complainant as an honest, truthful, reliable and accurate witness. She presented as a witness recalling an actual event that had occurred. Her evidence as to what happened on the night in the lead up to the offending, when describing the offences occurring and then the aftermath, was consistent with the objective evidence from the night in question[161] and had a real ring of truth to it.
  1. [93]
    The Crown submitted and I accept that the complainant’s evidence was not tempered by malice or exaggeration and that her identification of the defendant is a perfect example of such a conclusion. She specifically stated that at the time of the person entering her room and committing the offences she did not know who it was.[162] That is demonstrative of a person who had no malicious intent to ‘get’ the defendant or implicate him in a crime he did not commit. She was only certain that it was the defendant who committed the offending when she looked at his face, and she was able to see the angry look he was wearing as he left the room.
  1. [94]
    The complainant’s demeanour in the aftermath of the offending which included an immediate complaint in the form of text messages, a phone call to her friend, leaving the address, her emotional state (described by KN as “panicky” and “manic” on the phone[163]) and cutting her wrists are all supportive of the proposition of her distressed condition lending weight toward the offending actually occurring.
  1. [95]
    I have directed myself in accordance with the first limb of Benchbook Direction 67, which for brevity I will not set out in full. I have taken into account that distress “can be easily pretended,”[164] but I do not consider that the distress demonstrated by the complainant, including her demeanour on the phone to KN and leading up to her self-harm, was of a kind that can easily be feigned or exaggerated. I found her distress to be genuine, I could not find any other evidence that could explain the complainant’s distressed condition, and her distressed condition was, in my view, supportive of her account of the non-consensual sexual encounter she experienced.

Identification

  1. [96]
    The Defence identified the true issue in the trial as one of identification and the evidence of the complainant that it was the defendant who was in the room with her. The parties agreed on the appropriate direction.[165] I have reviewed this direction and made what I consider to be the necessary and relevant changes so that it is relevant and applicable to the facts of this case as set out in paragraphs [97] - [106] below.
  1. [97]
    The issue of identification is one for me to decide as a question of fact.
  1. [98]
    The case against the defendant depends to a significant degree on the correctness of the identification of the defendant as the perpetrator by the complainant. The defendant alleges this identification is mistaken. I have therefore warned myself of the special need for caution before convicting in reliance on the correctness of that identification. The reason for this is that it is quite possible for an honest witness to make a mistaken identification. Notorious miscarriages of justice have sometimes occurred in such situations. A mistaken witness may nevertheless be convincing.
  1. [99]
    I have examined carefully the circumstances in which the identification by the complainant was made, including how long she had the person, said to be the defendant, under observation? At what distance? In what light? Was the observation impeded in any way? Had the complainant ever seen the defendant before? If so, how often? If only occasionally, had the complainant any special reason for remembering the defendant? What time elapsed between the original observation and the subsequent identification?
  1. [100]
    I have not regarded the evidence of the complainant, while important in itself, in isolation from the other evidence adduced at the trial. Other evidence tending to implicate the defendant may be highly relevant, and may justify a conviction, while the evidence of identification, if it stood alone, would be insufficient.
  1. [101]
    I have treated the evidence of identification with care. I have been cautious about concluding that identification has been established in this case, and scrupulous in assessing the complainant as not only honest in her evidence, but also accurate.
  1. [102]
    I accept and I bear in mind that even an honest witness may be mistaken about identification.
  1. [103]
    The evidence capable of supporting the visual identification of the defendant is:
  1. (a)
    That the complainant was made to touch a penis supporting the identification of a male person;
  1. (b)
    She felt a bald head which the defendant had at the time;
  2. (c)
    That when the person got off of her, the complainant could clearly make out the face and became certain it was the defendant;
  3. (d)
    That the defendant’s daughter TR gave evidence that she remembers opening her eye and seeing a figure walk down the hallway and knowing it would have been her dad before closing her eyes again.
  1. [104]
    But I have reminded myself of the following specific weaknesses which appeared in that identification evidence:
  1. (a)
    The complainant said she touched a penis that was circumcised which the defendant is not;
  1. (b)
    None of the other witnesses gave evidence of a light being on but that it was dark;
  2. (c)
    There is no other evidence, other than from the complainant, of the defendant wearing a long-sleeve button up shirt at all during the night;
  3. (d)
    The complainant had not previously met or seen the defendant prior to the night;
  4. (e)
    The complainant was heavily intoxicated when she went to bed around midnight;
  5. (f)
    And any observations of the defendant during the night, aside from their initial meeting outside the house, were while she was heavily intoxicated;
  6. (g)
    TR’s evidence that she saw a figure she thought was her father needs to be considered in light of TR potentially assuming the figure was her father, or that it was a shadow, and TR having said in conference with the Crown shortly before giving evidence that she did know if she remembered seeing her dad walk down the hallway.  
  1. [105]
    I have had regard to what the High Court said in Domican v The Queen (1992) 173 CLR 555 at 56, that:

“The seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts have felt obliged to lay down special rules in relation to the direction which judges must give in criminal trials where identification is a significant issue.”

  1. [106]
    I have now isolated and identified the following additional matters of significance which might reasonably (depending, of course, on my own view) be regarded as undermining the reliability of the identification evidence:
  1. (a)
    Where, as is the case here, the evidence as to identification represents any significant part of the proof of guilt of the offence, I have warned myself as to the dangers of convicting on such evidence where its reliability is disputed.
  1. (b)
    While the terms of a warning need not follow any particular formula, I accept that the warning I have given myself must be cogent and effective.
  2. (c)
    In warning myself, I have had regard to the weaknesses in the identification evidence.
  3. (d)
    In warning myself, I have had reference to the following matters:
    1. That the relationship between the defendant and complainant is in effect one of stranger given she only met him that night for the first time and I have reminded myself that mistakes in recognition, even of close relatives and friends, are sometimes made; and
    2. That the complainant’s opportunity to see the perpetrator’s face was fairly short.
  1. [107]
    Having scrutinised all of the evidence carefully, and with the above warnings in mind, I am satisfied that none of the weakness identified amount to the complainant’s evidence being reliably disputed. The evidence as to the defendant’s penis is relevant, but considering the complainant fleetingly touched his penis and that the penis was erect, such a mischaracterisation is not fatal to her identification him. The other weaknesses have been addressed above and do not give me any reasonable doubt about the reliability of the complainant’s identification.
  1. [108]
    As discussed above I accept the complainant as an honest, truthful and reliable witness.
  1. [109]
    I accept her evidence as to what happened in the bedroom. I also accept her identification of the defendant. She was not intoxicated at the time and despite the room being dark, there was some light coming in, and the complainant had more than a fleeting glimpse of her assailant, she looked her attacker in the face. She was unequivocal in her identification of the defendant. Her identification of the defendant is consistent with the evidence that no one other than the defendant matched the description she gave of her attacker (albeit a confined physical description) and no one other than the defendant had the opportunity to commit the offences. Former PC SC Jackson found no signs of any forced entry.
  1. [110]
    I have also taken into account that Benchbook direction 48 cites that three special directions are commonly given in substantial circumstantial cases, being a direction “as to drawing inferences,” a direction that “guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances,” and finally a direction “that if there is any reasonable hypothesis consistent with innocence, the jury’s duty is to acquit.”
  1. [111]
    These three directions are characterised as follows:

“The second and third are but different ways of conveying, or emphasising, the meaning of ‘beyond reasonable doubt’. So while such directions may be helpful ‘in many, if not most, cases involving substantial circumstantial evidence’, ‘there is no invariable rule of practice’ that such directions should be given in every case involving circumstantial evidence.” [References omitted][166]

  1. [112]
    The Defence submitted that there was a reasonable hypothesis consistent with the defendant’s innocence reasonably open on the evidence namely that another bald male came into the house and was the perpetrator. I reject this hypothesis. I am satisfied beyond reasonable doubt that this is no reasonable hypothesis consistent with the defendant’s innocence.
  1. [113]
    It follows that I am satisfied beyond reasonable doubt of the sexual encounter occurring in the way described by the complainant and of her identification of the defendant as the perpetrator.

Defendant’s evidence 

  1. [114]
    It is necessary at this point to make some finding in relation to the defendant’s evidence bearing in mind the directions set out in paragraphs [33] – [37] above.
  1. [115]
    The defendant’s version is largely consistent with the complainant’s, except where it implicated him as the perpetrator of the offences. To that end, I found the defendant gave evidence to bolster his story, attack the complainant and distance himself from her identification of him in the bedroom.
  1. [116]
    I have taken into account that lay witnesses are not used to giving evidence in court and may find the task daunting and nerve-wracking, but the defendant did not impress me as a witness through both his demeanour and more crucially by the content of his evidence.
  1. [117]
    Indeed, I found many aspects of the defendant’s evidence contrived, self-serving, and most unconvincing. Although I accept that he conceded that there was no one else at the party that looked anything like him.
  1. [118]
    Some aspects of the defendant’s evidence which I find did not reflect well on his credit included:
  1. (a)
    his evidence that TR was living with him ‘on and off’ as she went between the two houses. TR’s evidence was that she lived at her mother’s house and she could not even recall if she had a key to the house. The bedroom which was supposedly TR’s was bare, with no personal items and the defendant commented on its state of presentation.
  1. (b)
    he stated that he could confidently comment on how intoxicated the complainant was despite being in his room for half of the time and barely having any interaction with her;
  2. (c)
    he stated arrogantly and aggressively that he was not attracted to the complainant, “not one bit,”[167] and explained his agitation by forcefully stating he had “never been out with a girl that looks like her, ever, in my whole life.”[168] That statement was then clarified to mean “someone of dark skin complexion.”[169] It may be true that he was not attracted to the complainant, but the manner in which he delivered this statement suggested an overwrought attempt to distance himself from the complainant and consequently revealed an underlay of unreliability to the defendant’s evidence.
  1. [119]
    I accept the Crown submission that the defendant’s evidence was underpinned by a number of crucial prior inconsistencies which demonstrate his largely self-serving narrative. Such inconsistencies included the matters discussed at paragraphs [47], [56] and [118] of these Reasons together with:
  1. (a)
    the defendant’s evidence about the clothing he was wearing on the night. In his interview with police on 2 October 2016 the defendant stated he was wearing a shirt and jeans. In his evidence on 28 July 2020, he stated he was wearing a jacket over a shirt. When questioned on the point he re-affirmed that he was wearing a black jacket over a black shirt and went on to explain why that was not inconsistent. It is instructive too that PJ said the defendant was wearing a Ralph Lauren polo shirt when he arrived at the party, but his evidence was that the defendant was in the shower when he [PJ] left the party – and PJ did not see the defendant again that night. [170]
  1. (b)
    the defendant’s inconsistent version about getting changed into pyjamas. To police he stated he collapsed onto the bed. In evidence he made it clear that he got changed into not only pyjamas, but specifically that he wore shorts and a shirt. In cross-examination he accepted he really didn’t know which version was correct or what his evidence was.[171]
  1. [120]
    It follows that I reject the defendant’s evidence that he was not in the room with the complainant on 30 September 2016. The fact that I do not accept the defendant’s denials or much or his evidence does not of course lead to an automatic conclusion of guilt. If the defendant’s version is unconvincing (as it is here), I must put it to one side and go back to the rest of the evidence and consider whether, on a consideration of such evidence as I do accept, I am satisfied beyond reasonable doubt that the Crown has proved each of the elements of the offence in question.
  1. [121]
    I have done that, and I am satisfied that the Crown has proved each of the elements of Count 1 and Count 2.

Conclusion

Count 1 – Rape 

  1. [122]
    As set out earlier in these reasons I must be satisfied beyond a reasonable doubt that the defendant penetrated the complainant’s vagina, to any extent, with a part of his body that is not a penis, without the complainant’s consent.
  1. [123]
    I accept beyond a reasonable doubt the complainant’s evidence that the defendant penetrated her vagina with his fingers to the extent that two fingers entered her body to the point of the middle knuckle. I find that this evidence satisfies the first three limbs to the requisite standard. I also accept the complainant’s evidence that she repeatedly told the defendant no and attempted to push him away.
  1. [124]
    In the recent Court of Appeal decision of R v Sunderland [2020] QCA 156, it was stated that an appropriate direction in that particular circumstance included:

“The question for you [the jury] is not whether you are satisfied that [the complainant] did not voice or express her lack of consent. The question is whether or not you [the jury] are satisfied beyond reasonable doubt that she did not give her consent.”[172]

  1. [125]
    In the same paragraph of Sunderland the proposed direction stated that:

“… For consent to be given it must be communicated somehow. If you are satisfied that consent has not been given freely and voluntarily, that is to say, if it is not communicated in some way, then you will be satisfied that the Crown has proved this element of the offence.”[173]

  1. [126]
    In the present case, as in Sunderland, there is no statement from the defendant (who gave evidence) that he mistakenly thought that the complainant was consenting to his actions.
  1. [127]
    I find that the Crown has proven beyond reasonable doubt that the complainant did not consent to the penetration of her vagina.
  1. [128]
    I therefore find the defendant guilty of Count 1 – rape.

Count 2 – Attempted rape

  1. [129]
    As discussed earlier in these Reasons, I must be satisfied beyond reasonable doubt that the defendant attempted to have carnal knowledge of the complainant without her consent.
  1. [130]
    In relation to an attempt, the Crown must satisfy me beyond reasonable doubt that at the time the defendant did the action (in this case the pressing of his penis against the complainant’s vagina) he intended to penetrate the complainant’s vagina (with his penis) to any extent.
  1. [131]
    I accept the complainant’s evidence that the defendant pressed his penis against her vagina and applied force. I am satisfied that by his conduct in persisting and having already raped the complainant with his fingers, the defendant’s subjective intention was clear - he intended to penetrate her vagina with his penis.
  1. [132]
    Further as discussed in paragraphs [124] to [127] of these Reasons there is no basis to conclude that the complainant consented at any time to the defendant’s actions, nor was the defendant mistaken in believing the complainant to be consenting to his actions. I find that the Crown has proven beyond reasonable doubt that the complainant did not consent to the attempt by the defendant to have carnal knowledge of her.

ORDERS

  1. [133]
    I therefore find the defendant guilty of Count 2 – attempted rape. It follows that I do not need to consider the alternative count of sexual assault.

Footnotes

[1] The defendant was charged on indictment with Attempted Rape, or in the alternative, Sexual Assault.

[2]Judge Chowdhury; pursuant to s c of the Criminal Code (Qld) 1899.

[3]Section 615B (1) of the Criminal Code 1899.

[4]MFI “B” – Defence Submissions at [6]-[8].

[5]As discussed in these Reasons it is unnecessary for me to return a verdict on the alternative charge to the attempted rape [of sexual assault].

[6] MFI “A” – Crown Submissions at [2].

[7]Adapted from Benchbook Direction 168.1.

[8]Consent means consent freely and voluntarily given by a person with the cognitive capacity to give consent. 

[9]Benchbook Direction 33.1.

[10]“Consent” means consent freely and voluntarily given by a person with the ability to know and understand what s/he is doing in giving consent. 

[11] Benchbook Direction 58.1.

[12]Benchbook Direction 58.2; Evidence Act 1977 (Qld), s 39PC.

[13]Transcript 2-29, ln 45.

[14]Transcript 2-33, ln 24.

[15]As was put to the complainant in cross examination; Transcript 1-54, ll 1-5.

[16]Transcript 1-36, ln 11.

[17]Benchbook Direction 26.

[18]Benchbook Direction 23.

[19]Nguyen v R [2012] ACTCA 24 at [11]; See also Benchbook 23.4 – 23.5.

[20]Benchbook Direction 34.

[21]Consistent with Benchbook Direction 34.1 and the R v Markuleski (2001) 52 NSWLR 82,  I acknowledge that if I was not sufficiently confident of the evidence of the complainant to convict on one count, I must find the defendant not guilty in relation to that count but that does not necessarily mean I cannot convict on any other count.  I must then consider whether or not I have some reasonable doubt about that part of the complainant’s evidence and whether it affects the way I assess the rest of her evidence relevant to the other counts.

[22]Exhibit 13 contained admissions made pursuant to s 644(1) of the Criminal Code.

[23]Exhibits 1-11.

[24]Exhibit 12.

[25]As defined in s 21A(1) of the Evidence Act 1977 (Qld).

[26]Order of Judge Chowdhury on 28.02.2019.

[27]The probative value of the evidence is not increased or decreased because these measures were used, and I’ve not given the evidence any greater or lesser weight because of the measures; s 21AW of the Evidence Act 1977 (Qld); see also Benchbook Direction 11 – Special Witnesses.

[28]See the observations of Nield AJ in R v Mulcahy [2010] ACTSC 98 at [13]-[24] applied in Nguyen v R [2012] ACTCA 24; see also the useful observations from R v Mulcahy set out by Smith DCJA in R v MMH [2020] QDC 70 at [10].

[29]Ibid.

[30]Benchbook Direction 48.

[31] Exhibit 1 is a picture of the house exterior.

[32] Transcript 1-6, ll 15 & 21-22.

[33] Transcript 1-6, ln 33.

[34] Transcript 1-6, ll 37-44.

[35] Transcript 1-7, ll 1-2.

[36] Transcript 1-7, ln 5. This was clarified to mean that he was “bald on the head” (see Transcript 1-7, ln 9).

[37]Exhibits 4 to 8.

[38]Transcript 1-71, ll 7-10.

[39]Transcript 2-50, ln 37; T2-51, ll 24-30.

[40]Transcript 1-27, ln 45.

[41] Transcript 1-71, ll 24-34.

[42]J did not give evidence at trial and was referred to by first name only by other witnesses. Nothing turns on this.

[43] The defendant did not recall L’s surname and L did not give evidence at trial. Nothing turns on this.

[44]T1-89, ln 20.

[45] Transcript 1-11, ln 10.

[46] Transcript 1-30, ln 3; Transcript 1-19, ln 45 to 1-20, ln 3.

[47] Transcript 1-31, ln 3.

[48] Transcript 1-31, ln 5.

[49] Transcript 1-31, ln 7.

[50] Transcript 1-32, ll 41-42.

[51] Transcript 1-61, ll 8-19.

[52] Transcript 1-73, ln 5.

[53] Transcript 1-82, ll 36-38.

[54] Transcript 1-81, ll 41-42.

[55] Transcript 1-106, ll 27-29.

[56]Transcript 1-107, ll 1 & 26-35.

[57] Transcript 1-106, ll 15-19.

[58]Transcript 1-106, ll 23-25.

[59] Transcript 2-20, ll 3-7.

[60] Transcript 2-25, ll 34-36.

[61] Transcript 2-25, ll 38-41.

[62] Transcript 2-26, ll 14-17.

[63] Transcript 2-26, ln 23.

[64] Transcript 2-24, ll 14-15; Transcript 2-54, l 38.

[65] Evidence of KN at Transcript 1-97, ln 26; defendant’s evidence at Transcript 2-65, ll 3-5. 

[66] Evidence of TR at Transcript 1-61, ll 21-25; Evidence of BT at Transcript 1-80, ll 24-25.

[67]Transcript 1-12 ll 29-30.

[68]Transcript 1-34, ll 21-22.

[69] Transcript 1-13, ll 21-22. This was challenged and maintained in cross-examination: Transcript 1-37, ll 28-29.

[70]Transcript 1-37, ll 21-24.

[71]Transcript 1-37, ll 41-42.

[72]Transcript 1-38, ln 7.

[73]Transcript 2-64, ln 46 to 2-65, ln 5.

[74]Transcript 1-16, ll 23-25 and 1-46, ln 22.

[75]Transcript 1-13, ll 34-45; for the location of the bathroom see Exhibit 3 and T1-39, ll 19-43.

[76]Transcript 1-38, ll 37-47.

[77]Transcript 1-40, ll 12-13.

[78]Transcript 1-13, ln 38; 1-41, ll 7-8.

[79] Exhibit 13 – Admission 1.

[80]Transcript 2-57, ll 3-5.

[81]Transcript 2-57, ll 36-37.

[82]Transcript 1-68 ll 30-40.

[83]Transcript 1-80, ll 40-46; Transcript 1-83, ll 16-40.

[84]Transcript 1-80, ln 35.

[85]Transcript 1-83, ln 26.

[86]Transcript 1-83, ln 39.

[87]Transcript 1-81, ll 1-6.

[88]Transcript 1-66, ll 18-32; 1-68, ll 44.

[89]Transcript 1-67, ll 39-43.

[90]Transcript 1-66, ll 20-31; 1-68, ll 22-24.

[91]MFI “B” – Defence Submissions at [32].

[92]Transcript 1-67, ln 1.

[93]Transcript 1-66, ll 31-32.

[94]Transcript 1-68, ll 1-20.

[95]Transcript 1-58, ll 9-10.

[96]Transcript 1-68, ln 44.

[97]Transcript 1-70, ll 17-20.

[98]Transcript 1-48, ln 46 to 1-70, ln 21.

[99] Transcript 1-14, ll 5-9.

[100] Transcript 1-42, ll 9-22.

[101]Transcript 1-14, ll 4-5.

[102]Transcript 1-73, ll 22-45.

[103] Transcript 1-83, ll 33-40.

[104] Transcript 2-20, ln 45. But as discussed in paragraph [79] of these Reasons, I do not consider this an inconsistency. The complainant did not say there was a light on in the room at the time. 

[105]Transcript 1-41, ll 9-10.

[106] Transcript 1-15, ln 9.

[107]Transcript 1-55, ll 21-35.

[108] Transcript 1-15, ln 27.

[109] Transcript 1-15, ln 37.

[110] Transcript 1-16, ln 13.

[111] Ibid.

[112]Transcript 1-16, ll 11-12.

[113] Transcript 1-16, ll 41-44.

[114]Transcript 1-17, ln 5.

[115]Transcript 1-17, ln 11.

[116]Transcript 1-17, ll 37-38.

[117]Transcript 1-19, l 24.

[118]Transcript 1-19, ll 29-33 and 36-43; 1-20, l 1.

[119]Transcript 1-20, ln 1.

[120]Transcript 1-20, ln 11.

[121]Transcript 1-19, ln 32.

[122]Transcript 1-20, ln 14.

[123]Transcript 1-19, ln 34.

[124]Transcript 1-20, ll 35-41.

[125]Transcript 1-22, ln 4.

[126]Transcript 1-21, ll 14-15.

[127]Transcript 1-21, ln 26.

[128]Transcript 1-22, ln 22.

[129]Transcript 1-22, ll 18-19.

[130]Transcript 1-21, ll 41-42.

[131]Transcript 1-21, ll 27 -29.

[132]Exhibit 13 – Admission 3.

[133]Transcript 1-22, ll 32-33.

[134]Transcript 1-22, ll 32-35.

[135]Transcript 1-55, ln 33.

[136]Transcript 1-22, ln 41.

[137]Transcript 1-22, ln 43; Exhibit 12 is the series of messages between the complainant and KN.

[138]Transcript 1-24, ln 12. This is also further discussed under the “preliminary complaint” discussion below.

[139]Transcript 1-23, ll 25-29.

[140]Transcript 1-23, ln 29; Exhibit 13 – Admission 2.

[141]Transcript 1-23, ll 29-30; 1-102, ll 22-24.

[142]Transcript 1-45, ln 36.

[143]Transcript 1-101, ll 5-18 and 1-102, ll 1-11.

[144]Transcript 2-13, l 16 & l 33.

[145]Transcript 2-17, ll 42-43.

[146]Transcript 2-20, l 45.

[147]Transcript 1-24, ll 31-34.

[148]Ibid.

[149]Transcript 2-40, l 4, and Admission 4.

[150]Closing submissions on behalf of the defendant at [18]; See also Benchbook 63 & Robinson v R (1999) 197 CLR 162 at [20]-[21].

[151]Closing submissions on behalf of the defendant at 14. 

[152]Transcript 1-38, ll 16-26.

[153]Ibid.

[154] Transcript 1-83, ll 40-46 and 1-84, ll 1-4.

[155] Transcript 1-83, ll 1-2.

[156] Although I accept the inference in the question to BT was that it was by cigarette given, he said he knew the difference between a cigarette and marijuana.

[157] Transcript 2-26, ll 4-12.

[158]R v LSS [2000] 1 Qd R 546; [1998] QCA 303 at [1] and [19].

[159]R v RH [2005] 1 Qd R 180 at [23].

[160]These inconsistences are set out in paragraphs [49] to [58] of MFI “B” – Defence Submissions.

[161]That is, the evidence about who was at the party, how much she drank, and who went out.

[162]Transcript 1-15, l 9.

[163]Transcript 1-100, l 27.

[164]Benchbook 67.1.

[165]Marked for identification “C”.

[166] Benchbook 48.1; R v Scofield [2020] QCA 101 at [84] per Philippides JA.

[167] Transcript 2-64, ln 29.

[168]Transcript 2-64, ll 31-32.

[169]Transcript 2-64, ll 34-35.

[170] Transcript 2-70, ll 5-10.

[171]Transcript 2-71, ln 5.

[172]R v Sunderland [2020] QCA 156 at [55] per Sofronoff P.

[173]Ibid.

Close

Editorial Notes

  • Published Case Name:

    The Queen v RUJ

  • Shortened Case Name:

    The Queen v RUJ

  • MNC:

    [2020] QDC 198

  • Court:

    QDC

  • Judge(s):

    Muir DCJ

  • Date:

    19 Aug 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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