R v JFR[2021] QCHC 35

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is a judge only trial.
2. [2]
   The defendant is charged with the following count:

“That on 19 April 2019 at Townsville the defendant raped SA.”

3. [3]
   The defendant has pleaded not guilty to the charge and it is my role to determine on the evidence whether the defendant is guilty or not guilty.
4. [4]
   The offence of rape is set out in s 349 of the Criminal Code.
5. [5]
   Relevantly, the elements of the offence are the penetration of the vulva or vagina of the complainant by the defendant’s penis without the complainant’s consent.
6. [6]
   Consent is defined in s 348 of the Criminal Code as: 

“348 Meaning of consent

3. (1)
   In this chapter, consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent.

3. (2)
   Without limiting subsection (1), a person’s consent to an act is not freely and voluntarily given if it is obtained—

1. (a)
   by force; or
2. (b)
   by threat or intimidation; or
3. (c)
   by fear of bodily harm; or
4. (d)
   by exercise of authority; or
5. (e)
   by false and fraudulent representations about the nature or purpose of the act; or
6. (f)
   by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner.”

7. [7]
   The central issue in dispute in the trial is whether the crown can prove absence of consent beyond reasonable doubt because there is no dispute that sexual intercourse did occur. Even if the crown can prove this then the next question is whether mistake of fact as to consent can be excluded.

Principles to be applied

8. [8]
   Section 23 of the Childrens Court Act 1992 (Qld) provides that in a trial of a child, issues of law and fact are to be decided as would be the case for trial on indictment in the Supreme Court. Also, s 101 of the Youth Justice Act 1992 (Qld) provides that the provisions of the Criminal Code apply in the trial of a child on indictment before a judge.
9. [9]
   In a judge only trial, the judge must apply, so far as practicable, the same principles of law and procedure as would be applied in a trial before a jury.^[1] Further, if an act or the common law requires a warning or instruction to be given to the jury or prohibits a warning being given to the jury, the judge must take into account the requirement or prohibition if the circumstances arise in the course of the trial.^[2]
10. [10]
    The judgment of the judge in a trial by a judge sitting without a jury, must include the principles of law that he or she has applied and the findings of fact on which he or she has relied.^[3]
11. [11]
    This section is in accordance with Fleming v R,^[4] where the High Court noted that a judge is required to explain the reasoning process linking those matters so as to justify the verdict to which the judge comes. Also, it was noted at [33] that any warnings which must be given must be recorded, heeded and taken into account.
12. [12]
    In R v Mulcahy,^[5] Nield AJ set out the directions and considerations which should be given at a judge alone trial. I note the following from the judgment:

• A criminal trial is governed by rules. The fundamental rules are designed to ensure that an accused person receives a fair trial according to law. The fundamental rules that govern a criminal trial are these.
• The [prosecution] bears the onus to prove the guilt of the accused. The [prosecution] has asserted that the accused has committed a criminal offence, therefore the [prosecution] must prove that the accused committed that offence. The accused does not have to prove that he did not commit that offence. 
• The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. The accused cannot be found to be guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his/her guilt. 
• The accused is presumed by law to be innocent of the offence with which he or she stands charged unless and until the evidence which I accept satisfies me beyond reasonable doubt of his/her guilt.
• If the evidence which I accept satisfies me beyond reasonable doubt of his/her guilt, then he/she loses the presumption of innocence and the appropriate verdict is guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of his/her guilt, then he/she remains presumed to be innocent and the appropriate verdict is not guilty. 
• In addition to the fundamental rules which govern a criminal trial, the following rules have been developed.
• As I am the judge of the facts, as well as the judge of the law, I must bring an open and unbiased mind to the evidentiary material. I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the [prosecution] and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will.
• I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the event about which the witness has given evidence. I must determine the relevant facts according to the evidentiary material, considered logically and rationally, without acting capriciously or irrationally.
• I may use my common sense, my individual experience and wisdom, in assessing the evidence given by the witnesses.
• I am not required by any rule of law, logic or common sense to accept a witness wholly or reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance, or I can reject everything that a witness has said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said that I consider worthy of acceptance and reject the rest of what the witness has said if I consider it unworthy of acceptance.
• In a criminal trial the [prosecution] must prove the essential elements of the charge beyond reasonable doubt. The [prosecution] does not have to prove everything about which evidence has been given beyond reasonable doubt.

13. [13]
    Proof beyond reasonable doubt is the highest standard of proof known to the law. It can be contrasted with the lower standard of proof that is required in a civil case where matters need only be proved on what is called the “balance of probabilities”. That is, the case must be proved to be more likely than not.
14. [14]
    In a criminal trial, the standard of satisfaction is much higher; the prosecution must prove the guilt of the defendant beyond reasonable doubt.^[6]
15. [15]
    In this matter, the crown has played pre-text calls between the defendant and the complainant. Further the crown has played the defendant’s record of interview
16. [16]
    In order to rely on any admissions, I would need to be satisfied the defendant did say this and it was true i.e. an admission of the offence. If I accept the evidence, it is up to me to decide what weight I give the words, and what I think they prove.^[7] Also, I would need to be satisfied it was not an admission to some other or lesser conduct.
17. [17]
    As regards the preliminary complaint evidence lead in this case, I specifically record that is not evidence of the fact that the alleged rape took place.^[8] The evidence may support or attenuate the credit of the complainant depending on whether it is consistent or inconsistent.^[9]

18. [18]
    Mistake of fact as to consent is also raised on the evidence. I note it is for the prosecution to disprove this defence beyond reasonable doubt.

19. [19]
    The defendant provided the record of interview dated 29 January 2021. I direct myself that the evidence is that which is in the recording. The transcript is an aid to my understanding of the evidence, but I refer to the transcript for reference.^[10] This direction also applies to the pre-text calls.
20. [20]
    The fact that the defendant has done a record of interview does not mean that he assumed a responsibility of proving his innocence. The burden of proof has not shifted to him.  His interview is added to the evidence called for the prosecution.  As I have said, the prosecution has the burden of proving each of the elements of the offence beyond reasonable doubt, and it is upon the whole of the evidence that I must be satisfied beyond reasonable doubt that the prosecution has proved the case before the defendant may be convicted.
21. [21]
    Often enough cases are described as ones of “word against word” but in a criminal trial it is not a question of my making a choice between the evidence of the prosecution’s principal witness or witnesses, and the evidence of the defendant.  The proper approach is to understand that the prosecution case depends upon me accepting that the evidence of the prosecution’s principal witness was true and accurate beyond reasonable doubt, despite the interview by the defendant; so I do not have to believe that the defendant is telling the truth in the interview before he is entitled to be found not guilty.^[11]
22. [22]
    Where, as here, there is a defence interview, usually one of three possible results will follow:

    1. (a)
       I may think the defence interview is credible and reliable, and that it provides a satisfying answer to the prosecution’s case.  If so, my verdict would be not guilty;

or

2. (b)
   I may think that, although the defence interview was not convincing, it leaves me in a state of reasonable doubt as to what the true position was.  If so, my verdict would be not guilty;

or

3. (c)
   I may think that the defence interview should not be accepted.  However, if that is my view, I must be careful not to jump from that view to an automatic conclusion of guilt.  If I find the defence interview unconvincing, I should set it to one side, go back to the rest of the evidence, and ask myself whether, on a consideration of such evidence as I do accept, I am satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence in question.^[12]

23. [23]
    During the course of the interview, a number of questions were asked by the police officers.  If the defendant did not agree to or in some way accept the contents of a question asked of him, the question cannot become any evidence against him. 
24. [24]
    In the course of the interview, it is said, the defendant made statements which the prosecution relies on as pointing to his guilt. If I accept them as having been made by the defendant and as true, it is up to me to decide what weight I give them, and what I think they prove.^[13] He also gave answers which I might view as indicating his innocence. I am entitled to have regard to those answers if I accept them, and to give them whatever weight I think appropriate, bearing in mind that they have not been tested by cross-examination. 
25. [25]
    In relation to both the answers which the prosecution relies on as indicating guilt, and those which point to innocence, it is entirely up to me what use I make of them and what weight I give them.

26. [26]
    Evidence was placed before me of the distressed condition of the complainant after the alleged rape. The prosecutor has submitted I can use this evidence in support of the allegation that the complainant was raped by the defendant. It is a matter for me whether I accept the evidence relating to the complainant’s distressed condition. If I do accept the evidence, I need to ask myself whether the distressed condition was genuine or was she pretending. Was she putting on the condition of distress or was there any other explanation for the distressed condition at the time? For an example in this case was it because of regretted consensual sex or because of embarrassment by being discovered by the mother? A court should attach little weight to distressed condition because it can be easily pretended but if I find the distress was genuine, I may use it as evidence to support the complainant’s account.
27. [27]
    There was also evidence the complainant was distressed when she made complaint later. I note that this evidence was not led in support of the complainant’s evidence that she was raped and could not be used by me for that purpose. I note there can be many innocent reasons for that condition at the time. It is only relevant to the narrative of events of that particular day.

Evidence

28. [28]
    The complainant was 16 years old at the time of the alleged offence. The defendant was also 16. They were both school students.

Complainant

29. [29]
    The complainant gave evidence that she met the defendant on social media in late 2018/early 2019. She agreed there was “sexting” between them. Indeed, the messages show they were interested in having sex with each other (Exhibit 1). In particular in a message dated 31 March 2019 the complainant sent a message to the defendant stating “wanna fuck.” Exhibit 2 were texts in which the complainant sent topless photos of herself to the defendant.   
30. [30]
    On 19 April 2019, the defendant invited her to a party at his place. Exhibit 1 shows that the complainant requested the defendant to stay at his place.  
31. [31]
    The complainant lied to her mother about where she was going. She and her friend Talisha took a litre bottle of vodka with a mixer and went to the party. They had some drinks, but the complainant was not grossly intoxicated. She alleges she went to Talisha’s car outside to get changed into swimwear to go swimming. She asked the defendant to open the gate. She got into the car and took her top off. She said the defendant than hopped into the car and they started kissing. She alleged that this was consensual. He then laid her down on the back seat. He took her pants off. She claimed she said “no” and she didn’t want to do this. She alleges without her consent the defendant had sex with her. She alleges he started choking and she couldn’t speak. She alleges she scratched him with both hands. There was then a bang on the window. It was the defendant’s mother. The mother yelled at them to get out of the car and they got out. The defendant and his mother then went into the house. At that point the complainant stayed in the car. Talisha was angry at her that they had had sex in the car. The complainant says she told Talisha she didn’t want to do it. She then made complaint to Jeremy and Zac. The defendant and his mother then came out. The complainant told them when asked it was consensual. She claimed in evidence she said this because she was embarrassed and scared. She was told by Talisha she had to make up her mind whether it was consensual or not. Later again she told the defendant’s mothers and father it was consensual.
32. [32]
    Somewhat surprisingly to my mind the complainant then went for a swim and stayed at the party. The defendant at one point gave her a change of clothes. Ultimately the complainant and Talisha were told they could not stay there and they left. She ultimately went to Michael Mitchell’s place and made complaint to him. Also, somewhat surprisingly, the complainant the next day on Snapchat messaged the defendant about the previous night saying, “yeah it was fun we’ll do it again”.
33. [33]
    Rumours then started about what had happened. The complainant continued to communicate with the defendant. The defendant said he was bullied at school. The complainant admitted she told a number of people she was not raped and agreed to put this on Snapchat.
34. [34]
    In about May, the defendant’s mother called and recorded the conversation. The complainant in that recording said the sex was consensual. The complainant though says she made complaint about rape to Lachlan, Vicki, Josiah and her own mother.
35. [35]
    In October 2020, she made complaint to the police. She also made two pretext calls to the defendant to which I’ll refer later.
36. [36]
    In cross-examination the complainant agreed that she and the defendant had exchanged nude photos and talked about meeting up. She made it clear to him that she wanted sex with him. She agreed that she was going to be his “fuck buddy”. She denied though that the sex in the car was consensual. She admitted staying for an hour longer at the party after the alleged rape and admitted swimming in the swimming pool. She admitted the defendant gave her his clothes. She admitted after the party she said to the defendant by message it was really fun and they should do it again. She admitted never saying to the defendant it was rape. She also agreed that she posted that the sex was with consent. Exhibit 6 shows a number of texts in this regard.
37. [37]
    Also, in Exhibit 7 she said to Marshall by text that she was not raped. She made it clear in the call with the defendant’s mother that the sex was consensual and she was not taken advantage of. She admitted that she had made false allegations in a private note she made about the night in question (exhibit 12).

Talisha

38. [38]
    Talisha gave evidence about the background to the party. She said that at the party the complainant asked for her car keys because she needed a jumper. The complainant disappeared for about 10 to 15 minutes. After this she went looking for the complainant. To my mind this is quite a long period, longer than the complainant described. Talisha then saw naked people in the back of her car. I note that what she saw clearly did not raise rape in her mind- Talisha simply went back to the side of the house. There was about a further 10 to 15 minutes later that she saw the complainant. At that point the complainant was distressed. The complainant alleged she had been pushed into the sex.

Zac

39. [39]
    Zac gave evidence that he was at the party. He said that the complainant was drinking but was not smashed. At one point he received a hysterical Snapchat message from the complainant. She was in tears. The complainant said that she and the defendant had sex in the car and she said, “I don’t want to say he’s done it but he pretty much has”. To my mind this shows at the start there was some equivocality (uncertainty) about whether a rape had occurred.
40. [40]
    In cross-examination he accepted the complainant did not mention the term rape.

Nicholas

41. [41]
    Nicholas gave evidence he was at the party. At some point the defendant was absent for about 20 minutes at 8pm. He said that Talisha later looked angry. He also gave evidence he was present during the phone call between the defendant’s mother and the complainant in which the complainant agreed to be recorded and said the defendant did not rape her.

Michael

42. [42]
    Michael gave evidence he was a friend of the complainant’s. On 19 April 2019, he received some messages on Snapchat from the complainant (Exhibit 8). She stayed at his house. She seemed normal. She said she’d been assaulted. She said he had forced himself on her and she said no. She also alleged that she had confronted the parents.

Jeremy

43. [43]
    Jeremy gave evidence he was at the party. He said the defendant became absent. He later saw the complainant walk past upset/crying. In cross-examination he agreed that the complainant posted on Snapchat that the defendant did not rape her.

Defendant’s father

44. [44]
    The defendant’s father gave evidence that the party was held on 19 April 2019 at his house. At one point he noticed the defendant was absent. He and his wife searched for the defendant. He went to the front and he saw his wife standing there. The defendant was in the car. He later saw the complainant. The complainant seemed shy/embarrassed but not distressed. Later she was happy and laughing at the party. She was in and out of the pool in her underwear. He actually asked her to put clothing on. He told she could not stay the night. The complainant and Talisha were one of the last to leave the party.

Defendant’s mother

45. [45]
    The defendant’s mother gave evidence she was also at the party. She met Talisha and the complainant. At one point the defendant became absent and she and her husband went to find him. The mother went out to the front and found the defendant in the car. This was after Talisha told her he was in the car “fucking” the complainant. The mother went to the car and knocked on the window and told them to stop. The defendant had his shorts down and the complainant had no top on. The complainant appeared embarrassed but was not crying. The mother told them both to step out of the car. There was no allegation of rape. There was a confrontation between the complainant and Talisha about her having sex in the car. They then moved inside. There was a discussion with the complainant about other allegations.
46. [46]
    The defendant and the complainant then re-joined the party and socialised together and swam in the pool together. The complainant and Talisha were two of the last to leave the party at about 11pm.
47. [47]
    The next day she spoke to the defendant about what happened. He admitted there had been sex in the car and described the position. He admitted his hand was near her neck. The term “choking” was a term all of the kids used he said. Later the defendant was bullied at school over rape rumours. She then recorded a phone call with the complainant (Exhibit 9). The complainant said she didn’t feel she was raped and was happy with what happened. They had not planned for sex that night she said.

Lachlan

48. [48]
    Lachlan gave evidence that he had a conversation with the complainant on the phone. The complainant told him that they had sex in the car and she told the defendant to stop. In cross-examination he admitted in his police statement he said he didn’t recall the specifics of what was said.

Vicki

49. [49]
    Vicki gave evidence that she was the complainant’s ex-boyfriend’s mother. In about August/September 2020 she was reading the complainant’s numerology and told the complainant she thought the complainant had been molested or raped. The complainant cried. She said she’d been to a party and they were “mucking” around in the backseat of a car. She felt uncomfortable and some people came to the car window and smiled and walked away. She alleged the man had sex with her and she said no.

Josiah

50. [50]
    Josiah the ex-boyfriend of the complainant gave evidence that after going to Bunnings some time in 2020 the complainant became non-responsive. She said she’d seen the defendant who had assaulted her. Three weeks later she told Josiah that she’d been sexually assaulted by the defendant at his party. She alleged she got into the back of a car to get changed. She claimed she didn’t want to kiss him and pushed him away. He then pulled the rest of her clothes off and raped her. She scratched him on the back and he told her to call him “daddy” and she gave up. In cross-examination he agreed that the complainant had never disclosed that she’d kissed the defendant.

CW

51. [51]
    CW the complainant’s mother gave evidence. She said she had on/off relationship with the complainant. On 2 October 2020, over the phone the complainant told her she’d been at a party in April 2019. At the party a male asked her to have sex and she said no multiple times. He had sex with her against her will in the car.

DET Stehr

52. [52]
    Detective Sergeant Stehr gave evidence and produced two pretext calls (Exhibits 10 and 11) and the record of interview (Exhibit 14). I listened carefully to the pretext calls. I consider the defendant did not make any admissions of guilt in those. He said he did not know the complainant did not want to have sex. He denied she said “no” to the sex when it got to that point. She did say “no” right at the start and then he said, “so you don’t want to fuck me” and she smiled and kissed him. She then took her jacket off and top off as well. He told her she had given every indication she wanted it. He did say he felt sorry for what had happened but that in my view is in the context of his explanation.

Record of interview

53. [53]
    The record of interview dated 29 January 2021 is a lengthy one. In summary the defendant said that he and the complainant were friends and were attracted to each other. They had conversed about sleeping together. Nude photos were exchanged. He invited her to the party and she came. Later, she walked to her friend’s car and he caught up with her. She got into the car and he popped his head in. They started kissing. She said she wasn’t sure if she wanted to do it there. He said, “so you don’t want to have sex with me”. She then smiled, kissed him, took off her jacket and they kissed. She then took off her underwear and they kissed more and had sex. He said it was going well when he heard a tapping at the window from his mother. They got out of the car. His mother was upset with him about leaving the party. The defendant went back inside to the party.
54. [54]
    The defendant noticed the complainant’s friend on her phone upset. As the night went on the complainant and her friend came back into the house. It was a bit awkward. People were swimming. At one point the complainant borrowed a set of his clothes. There was no indication anything was wrong. The complainant was embarrassed and didn’t want her mother to find out what had happened. At another point there was a round table discussion with Talisha, the complainant, his parents and the defendant and the parents did not think it was okay for the complainant to stay the night. It was best if she and Talisha went home. The complainant and her friend left. The complainant left her clothes on the bathroom floor. He was going to return these to her and put them in a plastic bag.
55. [55]
    The next morning the complainant sent him a message on Snapchat saying that last night was really fun and she hoped they could do it again. He got her address to return the clothes. Sometime later he received a call from Jasmine who said there was talk he had raped a girl. He was in disbelief about this. He got in touch with the complainant and told her he’d been told by other people about an alleged rape. The complainant was insistent that she had not said this to anybody.^[14] There was further limited contact between them. Then Lachlan came up to him. Lachlan said he’d spoken to the complainant who told him what happened and he threatened to break the defendant’s jaw. Again, the defendant got on to the complainant, but she denied saying anything. He sent her a message the rumours needed to stop and that she needed to post on Instagram or Snapchat that the rumours were not true. She did actually put up this post Snapchat and he thanked her for this. The defendant then put up his own post of screenshots of messages between he and the complainant. The complainant messaged him privately asking him to take this down and he ultimately did.
56. [56]
    After this there was little contact between the two of them. At one point, at Nicholas’ house his mother called the complainant and put her on loudspeaker. The complainant confirmed the sex was consensual and there’d been no rape. This call was about four to five months after the party.
57. [57]
    The next time he heard from her was about two to three months before the interview – the pretext calls. His recollection of the pretext calls is fairly consistent with the actual calls. Later, he sent her a lengthy text but she didn’t respond. The next thing he knew was the police turned up.
58. [58]
    The defendant explained he had screenshotted relevant Snapchat messages. Later in the interview he said he thought her smile was an indication she wanted sex and there was a stronger indication when she took her jacket and pants off. She then took her clothes off and lay back. During the sex the complainant was moaning. There was also sex talk. She called him daddy as part of this talk. Her legs were wrapped around him. He admitted he had his hand on her throat, but this was part of the sex and he was not stopping the airway or causing pain. She didn’t try and stop this. There was no indication she didn’t want the sex. He said there was consensual scratching as well of him, but she never pushed away. He did not ejaculate. He didn’t wear a condom. Later that night he had sex with another girl Amber. He said the complainant was mostly concerned that her mother should not find out. He said he was not drunk nor was the complainant. He said he had about four drinks that night. He said there were no rape allegations on the night of the party. Before she went to the car, they locked eyes she gave him a smile. The police put the allegations made by the complainant to the defendant. He admitted that the complainant asked him to open the gate. He admitted that the complainant told him she was going to get changed in the car. He vividly recalled her taking off her jacket and denied she said she did not want have sex.

Submissions by the Crown

59. [59]
    The Crown submits that the Court should accept the credibility and reliability of the complainant. It is submitted there is no dispute she entered the car and the defendant followed her. It is submitted there was consensual kissing. There was no dispute that sex occurred. The Crown says he held his hand to her throat. There was no discussion before that evening of any consent for a throat grabbing. Also, the complainant called him daddy. It is true that the complainant denied to the defendant’s mother that she was raped but the Court should accept her explanation bearing in mind she was a 16-year-old girl confronted in those circumstances. She was embarrassed and scared. Other statements she made were explicable. It is true that she sent the message to him the next day and was candid about that. It was submitted that Zac was an impressive witness. It was further submitted that distressed condition corroborated her account.
60. [60]
    Also, with respect to the mother’s call one should take into account that she was cross-examining the complainant and the complainant gave a reasonable explanation for that call.
61. [61]
    As regards to the statements to Marshall these were consistent with someone to trying to deflect a problem she was not ready to deal with. Yes, she did make some false notes, Exhibit 12, but they were kept to herself and the note was deleted.
62. [62]
    It is submitted the preliminary complaint evidence is generally consistent.
63. [63]
    The Crown submits the Court should place little to no weight on the defendant’s parents’ evidence as their evidence was inconsistent with the distressed condition. The distressed condition is more consistent with the rape allegation and beyond being embarrassed.
64. [64]
    As to the hand on the throat, she had already said no and he continued to have sex. The scratching of his back was also consistent with her evidence.
65. [65]
    The Crown pointed out that the defendant did not volunteer the choking in the pretext calls. The Crown also pointed out that the mother when questioning her son was told about the choking as well. He knew he’d done this but did not volunteer it in the pretext calls. It is submitted there is hesitancy in that regard in the interview.
66. [66]
    The Crown submits that little weight should be placed on the defendant’s account. He sought quite discreditably to bring her reputation into question. In any event this was contrary to Talisha’s evidence. He minimised his conduct and was not forthright. The Court should reject his account put it to one side and go back to the complainant’s account. She was consistent about what happened in the car and the Court should convict the defendant.

Defence submissions

67. [67]
    The defence on the other hand submitted that there was much evidence to support the fact there was consent. Firstly, there were the sexualised messages in Exhibit 1 including the message where she wrote “wanna to fuck”. Exhibit 2 were topless photos she sent to the defendant and she said, “we’ll have to fuck more than once”. She also agreed in cross-examination they would become “fuck buddies”. There was clearly sexual interest between the parties.
68. [68]
    The Court would not accept the complainant’s evidence. Her post alleged rape conduct is inconsistent with rape. Her complaint to Zac was equivocal and she was not sure that rape had occurred. She remained at the party for a number of hours after the alleged rape and swam in the pool and accepted clothing from the defendant. This is clearly inconsistent with any rape.
69. [69]
    As to the distress, this could well have been caused by embarrassment. The mother came upon them and there had been the argument with Talisha. In any event seeking to stay the night was inconsistent with rape as well.
70. [70]
    The defence heavily relies on the confirmation to the mother that the sex was consensual. There was also the message the following day that it was fun and that they could do it again. The complainant confirmed the sex was consensual in the text with Marshall (Exhibit 7) and specifically said she was not raped. The defence submits all of this causes doubt as to the complainant’s version.
71. [71]
    The defence also submitted that Exhibit 12 the notes showed that she was clearly lying about the incident and on 25 April she said there was no rape. There was no pressure on her by others at that stage.
72. [72]
    Additionally, she put up the Snapchat post (Exhibit 6) confirming there was no rape and never said there was rape in any of these posts. The recorded call with the mother (Exhibit 9) confirms also there was no rape.
73. [73]
    As to the pretext calls and the record of interview the defence submits, they cannot be excluded beyond reasonable doubt. It is submitted the defendant clearly raised the issue of choking in his interview and explained it appropriately.
74. [74]
    The defendant was clear as to the fact there was consent and that at the end of the day the Court could not exclude his account and at worst a mistake of fact as to consent could not be excluded in this case.

Conclusion

75. [75]
    I have assessed all of the evidence in this case and taken into account the submissions made.
76. [76]
    The parties agreed that I should give myself a Robinson^[15] warning in this case. I warn myself that I should scrutinise the complainant’s evidence with great care before acting on it. There are a number of circumstances relevant to its evaluation I need to take into account namely:

    1. (a)
       She lied about the incident in the note she typed (Exhibit 12).
    2. (b)
       The day after the alleged rape she said it was fun and she wanted to do it again in a text message to the defendant.
    3. (c)
       Her admissions to others and in texts or posts that this was not rape and the sex was consensual.
77. [77]
    I can act on her evidence but only after keeping that warning in mind.
78. [78]
    Bearing in mind the requirement to scrutinise the complainant’s evidence with great care, in my view the Crown has not proved beyond reasonable doubt that the complainant did not consent to the sex in the back of the car.
79. [79]
    It may well be a case that the complainant in her own mind felt a little pushed into it in the back of the car but on my assessment of the evidence I consider it most likely that she ended up agreeing to it bearing in mind she did previously want to have sex with the defendant.
80. [80]
    I also take into account that own account she was consensually kissing the defendant at a time when she was topless in the back of the car.
81. [81]
    It may well be a case the complainant has now persuaded herself that the sex was not consensual but that has happened over the course of time and is inconsistent with her statements to others on many occasions that there was no rape.
82. [82]
    At the least I consider in the circumstances raised that even if the complainant was not consenting, the Crown cannot disprove beyond reasonable doubt that the defendant honestly and reasonably believed there was consent as he stated in the pre-text calls and the interview.
83. [83]
    There is evidence of distress, but I think that can be readily explained by embarrassment by being caught by the mother or alternatively later regretted consensual intercourse.
84. [84]
    It is true there is some consistent preliminary complaint evidence, but I think this is counterbalanced by her admissions to others about there being consensual sex. Also, the preliminary complaint evidence is consistent with her later persuading herself the sex was not consensual after the event. Her statement to Zac shows she had some doubt about this in her own mind.
85. [85]
    In all of the circumstances, I do not consider I can exclude the defendant’s account beyond reasonable doubt. I did not accept the crown’s submissions as to the choking. I thought the defendant did volunteer this in the interview. My impression of the choking was this was part of consensual sex. There was no suggestion of any injury to the complainant.
86. [86]
    At the end of the day this is a case in which I can’t be sure about what exactly occurred in the car that night.
87. [87]
    In all of the circumstances, I have a doubt which is based on reason.

Conclusion

88. [88]
    I find the defendant not guilty of the charge of rape.