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R v Vico QDC 176
DISTRICT COURT OF QUEENSLAND
R v Vico  QDC 176
ALAN GEORGE VICO
Judge Only Trial
District Court of Queensland, Cairns
25 August 2020
District Court at Brisbane
16, 17, 18 June 2020
The defendant is guilty of the offence.
CRIMINAL TRIAL – JUDGE ONLY TRIAL – RAPE – CIRCUMSTANTIAL EVIDENCE
R v Makary  QCA 258
R v Wells  QCA 155
Webster & Co v Australasian United Steam Navigation Co Ltd  St R Qd 207
Criminal Code 1899 (Qld)
N Friedewald for the Crown
A Kimmins for the Defendant
Office of the Director of Public Prosecutions (Qld) for the Crown
O'Reilly Stevens for the Defendant
- The defendant Alan George Vico is charged that on the 21st day of September 2018 at Cairns in the State of Queensland, he raped the complainant.
- This was a trial without a jury by an order made on 12 May 2020 pursuant to s 615(1) of the Criminal Code 1899 (Qld) (“Criminal Code”).
- The trial took place in the District Court at Cairns on 16, 17 and 18 June 2020.
- I will apply, so far as is practicable, the same principles of law and procedure as would be applied at a trial before a jury pursuant to s 615B of the Criminal Code. Section 615B of the Criminal Code provides that if an act or the common law requires information or a warning to be given to the jury in particular circumstances, the judge in a trial, sitting without a jury, must take the requirement into account if the circumstances arise.
- The defendant is presumed to be innocent. The Crown has the burden of proving the accused’s guilt beyond reasonable doubt. That means before making a finding of guilt I must be satisfied beyond reasonable doubt of the elements of the offence of rape.
- This is a circumstantial case in respect of the element of consent. 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 that guilt should be the only rational inference that could be drawn from the circumstances. If there is any reasonable hypothesis consistent with innocence in respect of that element I must find the accused not guilty. This follows from the requirement that guilt must be established beyond reasonable doubt.
- I must decide on the evidence and only on the evidence and I must do so dispassionately. In drawing any inference, I must be satisfied that it is the only reasonable inference to draw from the facts I find to be established by the evidence. I must not engage in speculation or guessing.
- The defendant has not given or called evidence. That is his right. He is not bound to do so. The burden of proof remains on the prosecution and the fact that he did not give evidence, is not evidence against him. It proves nothing at all.
- The charge has been brought under s 349 of the Criminal Code which provides:
- (1)Any person who rapes another person is guilty of a crime
- (2)A person rapes another person if —
- (a)the person has carnal knowledge with or of the other person without the other person’s consent; or
- (b)the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or part of the person’s body that is not a penis without the other person’s consent; or
- (c)the person penetrates the mouth of the other person to any extent with the person’s penis without the other person’s consent
The appropriate and relevant section here is s 349(2)(a).
- Section 348 defines the meaning of consent as follows:
- (1)In this chapter, consent means consent freely and voluntarily given by a person with the cognitive person to give the consent.
- It is the Crown case that carnal knowledge occurred at a time when the complainant did not have the cognitive capacity to give consent and the consent was, therefore, not given freely and voluntarily. The Crown case is that the complainant lacked the cognitive capacity to consent because the complainant was in a state of severe intoxication at the relevant time. It is, therefore, necessary to examine the evidence in detail.
- The defence do not contend that carnal knowledge did not take place. This aspect of the offence is not deemed to be circumstantial.
- The complainant was a 20 year old exchange student from Norway who lived in Brisbane with three flatmates. The address the complainant resided at in Brisbane became relevant throughout the course of the trial. This address was 174 Grey Street, South Brisbane.
- On 20 September 2018, the complainant travelled with two of her flatmates to Cairns. They had arranged to stay at a hostel called the Waterfront Hostel. On the day they arrived in Cairns, they spent the day at Palm Cove and then returned to Cairns in the afternoon. Upon arriving back in Cairns, they proceeded to go to a liquor store to buy alcohol. The complainant purchased a box of 10 ciders. The three of them then set about “pre-gaming” as they intended to go to another hostel for a party and to other licensed venues.
- Whilst “pre-gaming” the complainant thought she consumed four ciders. She found out later it was a bit more.
- The complainant was wearing a jumpsuit with an open back. She did not have a bra on but she was wearing underpants.
- From their accommodation at the Waterfront Hostel, the complainant and her friends went to the Lazy Duck Hostel. There was a function going on there. The complainant gave evidence that she consumed some alcohol at the Lazy Duck and started to feel a bit drunk. She said, “I only remember bits and pieces from that time, when we got there.”
- The complainant could not recall eating anything at the Lazy Duck and was not sure what time she left this venue. The complainant said she remembered trying a cigarette, and stated that she must have been drunk as she had never tried a cigarette before.
- From the Lazy Duck the party continued on to a venue called the Woolshed. The complainant said that she remembers being at the Woolshed but she does not remember walking there or going inside. Her memory of being inside the Woolshed is “mostly the last thing I can remember.”
- The complainant gave evidence that her next memory was when she woke up the next morning. She said that she woke up feeling very cold and thought that was strange because the air conditioning in the house where she was living was not working. The complainant then realised that she was not at home, but did not know where she was.
- The complainant realised she was in a hotel room. The complainant looked around and noticed that there were two beds in the room, along with a key card and a condom wrapper on the table next to her and a $20 dollar note. She remembered seeing that her jumpsuit was lying on the table. She was not sure where she found her underpants. She went into the bathroom and saw another condom wrapper on the sink. She did not have her phone or her purse.
- The complainant went to reception and relayed this to the receptionist. The receptionist called the police. The police arrived and took the complainant to the Cairns Hospital where she had a sexual assault examination. The complainant also provided a breath test for alcohol analysis.
- The complainant gave evidence that she had no recollection whatsoever of meeting the defendant, travelling to the motel with him or being in the motel room with him.
- The complainant agreed that she had had past episodes of “blacking out” when drinking, which she said had happened no more than once every second month or so after alcohol consumption.
- Under cross-examination, the complainant said the only reason she knew she had been at the Woolshed was because the word Woolshed was on an arm band she was wearing when she woke up the next morning. She had very little recollection of what happened at the Woolshed and who was there. She did not remember getting to the venue. She did not remember dancing with different men or kissing anyone, as was suggested to her in cross-examination.
- The complainant had no memory of having sex at the motel. Under cross-examination she said that although she had had blackouts in the past, they were “not as bad as this one.”
- This witness was a 22 year old Norwegian exchange student who lived with the complainant in Brisbane.
- Ms Hjermann spoke about going to Cairns and spending the day at Palm Cove. She said they returned to Cairns at about 5.30pm and bought some drinks from a bottle shop. Ms Hjermann said she noticed that the complainant had bought 10 cans of strong ciders with a seven per cent alcohol percentage. She said that as far as she remembered the complainant did not eat any food and consumed four or five of the ciders. Ms Hjermann observed that when they walked from their hostel to the Lazy Duck, the complainant had a cider with her and was drinking the cider during the walk. She said at that time the complainant was in a good mood, appearing happy and bubbly.
- Ms Hjermann gave evidence that alcohol was being given out at the Lazy Duck upon arrival, which looked to be wine mixed with soda or cordial and was red in colour. Ms Hjermann said that each of the girls paid a $2.00 entrance fee to the Lazy Duck that covered a BBQ and these drinks.
- Ms Hjermann did notice that the complainant was drinking at the Lazy Duck, but could not say how many drinks she had there. She could not remember whether the complainant ate anything at the Lazy Duck.
- Ms Hjermann said that during the time between the Lazy Duck and arriving at the Woolshed, the complainant was still in a good mood and was obviously affected by alcohol. She observed the complainant being unsteady on her feet, talking more than usual and laughing louder.
- Ms Hjermann said that on arrival at the Woolshed, they received one free beer or cider. Ms Hjermann observed the complainant drink the free drink, but she was unable to say whether the complainant had any more to drink after this.
- Ms Hjermann did not leave the Woolshed with the complainant. Ms Hjermann and the other flatmate went to the bathroom and when they got back the complainant was gone. Ms Hjermann said that she and the other flatmate assumed the complainant had moved on to the next venue called Gilligan’s. They went to Gilligan’s nightclub but they did not see the complainant there.
- Ms Hjermann said she received a phone call from a man using the complainant’s phone during the course of that evening. She thought this occurred at around midnight. She was asked to try and make contact with the complainant and she said she did attempt this. Ms Hjermann said she called the complainant several times and texted her, but didn’t get an answer to the phone calls or a response to any of the texts.
- When Ms Hjermann described the complainant at the Woolshed she said “I remember, like she was drunk like all of us were but, like not – not like considered it, like being too much if you understand what I mean, yeah.”
- Under cross-examination, Ms Hjermann agreed that in her statement she had said that on the walk to the Woolshed the complainant “seemed to be walking fine and talking fine. She was just still happy but I could tell she was a bit drunk.” At the Woolshed she said “I remember, like, all of a sudden she was obviously drunk and affected by alcohol, and what that, like, entails you know, yeah.”
- Ms Hjermann said she did not remember if she saw the complainant dancing and she did not remember seeing her kissing anyone while at the Woolshed.
- Ms Skjaevesland was another flatmate living with the complainant in Brisbane.
- Ms Skjaevesland agreed they went to Palm Cove that day, and that the three of them were staying at the Waterfront Hostel. She agreed they went to buy alcohol on their return to Cairns. She herself bought a cask of white wine and she remembered the complainant bought cider.
- Ms Skjaevesland discussed the “pre-gaming.” She thought that the complainant drank five ciders, as there were five ciders left in the complainant’s pack when they left the hostel.
- Ms Skjaevesland did not remember if the complainant took any alcohol to the Lazy Duck. Ms Skjaevesland said she thought they all had a glass of “goon” there, and that she did not know whether the complainant ate anything.
- Ms Skjaevesland was asked whether she observed the complainant to be affected by alcohol during the walk to the Woolshed. She said “I don’t remember anything standing out. But, of course, I was also probably affected by alcohol at that time.”
- Ms Skjaevesland described going to the bathroom with Ms Hjermann and said that when they came back the complainant was not there. When asked to describe how the complainant was behaving on that night, she said “just pretty normal for a night out… we always pre-game before we go out so by the time we get to the Woolshed or wherever we’re going we’re at a stage when we’re all beginning to get drunk I would say.” She said she did not see the complainant again that night.
- Under cross-examination, Ms Skjaevesland said she thought they were all in about the same condition as far as alcohol consumption and intoxication when they were at the Woolshed. She could not remember the complainant having any difficulties walking, nor could she remember the complainant kissing anyone at the nightclub.
Johnathon Harrison Shankman
- Mr Shankman was a Canadian exchange student residing in Melbourne at the time, but he was also arrived in Cairns on 20 September 2018 and, coincidentally, he was also staying at the Waterfront Backpackers.
- Mr Shankman went to the Woolshed nightclub that night sometime before midnight. He said when he first met the complainant “it was very apparent to me she had a whole lot to drink that night, she was slurring her words, having difficulty walking and standing, yeah, just symptoms of intoxication.” Later he described her as “very drunk.” He noticed her at the Woolshed “dancing promiscuously” with various men trying to kiss them and he thought at one point in the night she tried to kiss him too.
- Mr Shankman said at some point the complainant was asked to leave by security at the Woolshed, after she had stumbled into the men’s washroom. He told security that he would leave with the complainant and try to reunite her with her friends.
- The pair walked towards Gilligan’s through Cairns city. He described that walk as follows:
“It was a bit of a chaotic journey, she was going in the wrong direction and I had to constantly persuade her to follow me to Gilligan’s. I think we were walking in circles at some point. We had to constantly sit down so [she] could get her – so we could get our bearings and I could get her on her way… she was having difficulty balancing, I had to hold her hand, yeah, she was having trouble staying upright.”
- He said it was difficult to comprehend what the complainant was trying to say and, when they arrived at Gilligan’s, it was a challenge to get to her to stay put. He said the complainant kept wanting to wander off. They were both refused entry to Gilligan’s because of the intoxicated state of the complainant. He asked her a number of times where she was staying in Cairns and she kept saying somewhere in Grey Street (her Brisbane address).
- He took possession of her keys and phone at one point because he said he did not want her to lose them. At one point, the complainant took her phone and threw it on the ground. Mr Shankman did return the phone to the complainant before she left in a taxi, but forgot that he had her room key in his pocket so the complainant left without her key.
- This evidence is at odds with the defence submission that Mr Shankman did not have to exert strong force on the complainant during the walk to Gilligan’s to keep her upright. Mr Shankman said she was having difficulty balancing.
- The defence submissions also said that it was clear that throughout the course of their walk together, the complainant and Mr Shankman were conversing with each other as they walked. This is at odds with Mr Shankman’s evidence that it was difficult to comprehend what she was saying.
- Defence further argued that in relation to the CCTV of the pair walking through Cairns (Exhibit 1);
- (i)During sequence 3, Mr Shankman is walking with his arm around the complainant;
- (ii)During sequences 5 and 6, the complainant and Mr Shankman were walking together hand in hand;
- (iii)During sequence 7, the complainant is clearly walking without any apparent problems;
- (iv)During sequence 9, the complainant is walking alone without any apparent problems.
All of these submissions are at odds with the evidence of Mr Shankman and at odds with my view of Exhibit 1. In my view of Exhibit 1, the complainant is having difficulty walking and staying on track, and is being assisted by Mr. Shankman.Further, such submissions are untenable in the light of the passage of CCTV from the Black and White Taxi number 94, which the complainant entered at about 11.00pm, and which is discussed below.
Paul Leon Hoskins
- Mr Hoskins is a security officer. He was working at the Woolshed on the night in question.
- He gave evidence that he saw a female near the main bar who looked like she had had too much to drink. Mr Hoskins said she was stumbling and knocking into other patrons so he went to talk to her. He said she was slurring her words, and, although he could understand what she was saying, she had obviously had too much to drink. This female was the complainant.
- Mr Hoskins said that when he asked the complainant to leave, a man stood up and said he knew the complainant and was happy to escort her out the front and put her in a cab. Mr Hoskins asked the complainant if she knew the man and she said that they stayed at the same hostel together. He asked if she was happy to leave with the man and she said yes. This man was Mr Shankman.
- Mr Hoskins said that he had not seen Mr Shankman at any stage earlier in the night, and she had not seen the complainant in his company. Mr Hoskins accepted in cross-examination, that he had seen the complainant with another man earlier in the night, whom she had kissed.
- Mr Hoskins said that when he first approached the complainant, he wanted to have a chat with her and “you know, check after her welfare” (my emphasis). This is at odds with the defence submission that:
- (i)Mr Hoskins, as a security officer, had a duty to maintain order inside the venue;
- (ii)All employees have a duty to abide by the Responsible Service of Alcohol. (This was never mentioned by Mr Hoskins and there was no evidence to this effect);
- (iii)The fact that the complainant was observed to have had too much to drink was relevant to the responsibilities of the licensed premises, not to any care or concern towards the complainant. (This is clearly not in accord with Mr Hoskin’s evidence that he was concerned about her welfare.)
Additionally, there was no evidence during the trial whatsoever about whether the employees, including a security officer, have a duty to abide by the Responsible Service of Alcohol, or that security officers are required to hold this certification.
Carl Richard Watz
- Mr Watz was also a security officer in the City Safe area of Cairns. He saw a female outside Gilligan’s at about 10.45pm. He said the first thing he noticed was her body language - she was staggering around, looked intoxicated, and seemed to be having an argument with another male there who was preventing her from leaving the premises. This was the complainant, arguing with Mr Shankman.
- Upon seeing this argument, Mr Watz and his partner intervened and put the complainant in a taxi. When asked about her speech, he said she was speaking “slightly slurry, like a typical sign of intoxication” and that she showed “all the normal signs of a highly intoxicated person: slurring, stumbling, blood shot eyes and smell of alcohol.”
- Once again, this is at odds with the defence submission that the CCTV showed that the complainant was clearly walking without any apparent problems.
- Mr Laryea is a taxi driver. Mr Laryea was driving the taxi that the complainant got into outside Gilligan’s nightclub at 10.58pm.
- His journey with the complainant was captured on audio and visual recording from the taxi. The complainant exited the taxi on Sheridan Street, Cairns North at 11.14pm so the recording of Mr Laryea and the complainant inside the taxi lasts for about 15 minutes. The following matters can be noted:
- (i)On each occasion Mr Laryea asked for the address the complainant wanted to be dropped off at, she provided her Brisbane address of 174 Grey Street;
- (ii)When he asked her to put her seatbelt on (which was at least three times), she leaned forward towards the dashboard and he was required to tell her not to touch the dashboard. On one occasion in which Mr Laryea asked the complainant to put on her seatbelt, she picks up a pen and appears to wave it around in the air instead of putting her seatbelt on;
- (iii)He made enquiries to see if there was a Grey Street in Cairns through the taxi office but that was unsuccessful;
- (iv)The complainant had difficulty spelling Grey, was swaying in her seat during the taxi trip, and frequently closed her eyes and appeared to be falling asleep;
- (v)At one stage she undid her seatbelt and did not put it on again throughout the trip;
- (vi)After approximately 13 minutes in the taxi, the complainant told the driver to stop anywhere and she would have her best friend pick her up. He stopped in front of the Harley Davidson store on Sheridan Street, North Cairns;
- (vii)The complainant then struggled to locate her bankcard to pay the fare causing the driver some concern;
- (viii)CCTV footage from the Harley Davidson store captures the complainant exiting the taxi. She tries to take hold of the door as she stands upright, but stumbles. She has difficulty closing the taxi door, coming back to shut it properly twice, and is unsteady on her feet as she walks off.
- Defence counsel submits that the CCTV footage shows the complainant touching Mr Laryea throughout the course of the trip, and that this is a relevant feature to what occurred in the motel room.
- I have seen the CCTV of her interaction with Mr Laryea and it did not appear to me to have any sexual overtones.
- The defendant first approached the front office of the motel at 11.56pm on 20 September 2018. He was wearing dark pants and a long sleeved business shirt. He approached the front entrance again approximately one minute later and used the after-hours telephone to book a motel room for the night. This was audio recorded.
- When he was told cash would not be acceptable, he had to return to his car for his credit card.
- He advised there were two guests. When asked if they needed separate beds, the defendant answered that they were “happy to share.” The prosecution submit that making a booking for two guests to be accommodated in the same bed is “inconsistent with his self-serving version to police, that he took the complainant to a motel to care for her and was only interested in her well-being.” I tend to agree.
- The defendant provided his name, his credit card details, and, when asked about his email, he answered “I don’t use it much.” When asked if he needed a later check out, he said words to the effect of “that will be for my buddy to work out. I’ll be gone.”
- CCTV footage captured the defendant moving back and forth between the motel and his car between 12.08am and 12.28am. He took various items from his car into the motel room.
- Approximately 50 minutes later at 1.20am, the defendant exited the motel and returned to his car. He had changed his clothing and was dressed in shorts and a singlet. He returned to the motel room approximately one minute later and remained there for around two hours and 40 minutes, until 3.57am. CCTV footage again captured him moving back and forth between the motel room and his car from 3.57am to 4.09am. He took various items from the motel room into the car. He left the premises at 4.09am.
- Forensic evidence from the complainant’s Sexual Assault Investigation Kit showed DNA matches with the defendant and the complainant. Comprehensive DNA evidence was presented at the trial. I do not think it is necessary to discuss it at length, as the defence submissions indicate that carnal knowledge is admitted.
Esmerelda Christine Janetzki
- Ms Janetzki was staying at the Southside International Hotel on the night of the 20 September 2018. She was in a room on the ground floor right next to the entrance way with a balcony attached to her room. The balcony overlooked the car park at the back of the property.
- Ms Janetzki gave evidence that she woke up and saw a car enter the car park and proceed to stop, and a couple of minutes later a couple exited the car and walked to the entrance way. That meant they had to walk past her. These two people were the complainant and the defendant.
- She was asked “can you describe how they were walking, those two people?” and she replied “he was – he was closest to me and he appeared to sort of have his arm around her and supporting her in – in walking.”
- Once again the evidence of the eye witness is at odds with the defence submission regarding the CCTV coverage from the motel that showed the accused and complainant walking together. It was submitted that “it is readily apparent that the complainant is not staggering and was walking in a straight line, there is nothing about this footage which indicates she’s anything other than in control of herself.”
- My own view of the CCTV coverage from the motel is that it is clear that the complainant cannot walk in a straight line, but rather veers towards the middle of the carpark and then back towards the defendant. It also appears that the defendant is holding her by the upper arm and guiding her towards the motel.
- Ms Friend was working as the receptionist at the motel that morning. Ms Friend saw the complainant at about 7.10am in the reception. She said the complainant told her that she did not know where she was, or how she got there. Ms Friend said that the complainant was visibly upset.
- There was no preliminary complaint made to Ms Friend.
- There is evidence of distressed condition but there are other reasons such as confusion and fear which may explain the distress the complainant exhibited. For these reasons, I have disregarded the evidence of Ms Friend except to the extent that it is part of the narrative of the events of that particular day.
- Ms Friend seated the complainant and called the police. The police arrived and took the complainant to the Cairns Hospital where she had a sexual assault examination. The complainant also provided a breath test for alcohol analysis.
Dr Leslie John Griffiths
- Dr Griffiths is a forensic medical officer employed by Queensland Health. He was aware the police took samples of the complainant’s breath at around 7.00am on 21 September 2018. He said it was possible to extrapolate back to a particular point in time, that is, to do a calculation working backwards to assess what the percentage reading would have been at an earlier time. The result of the breathalyser reading was .102 percent.
- He said a number of factors could address the absorption of alcohol in a human body and some factors such as the presence of food would delay absorption. Extremely heavy drinkers tend to eliminate faster rates of alcohol, although, he would not have thought that someone of the complainant’s age would have quite a very high degree of tolerance to alcohol. He provided an opinion of the alcohol reading at three different times. He chose a median rate of elimination to do this count back.
- Firstly, at 10.22pm when the complainant was removed from the Woolshed, and a little while later, he estimated her blood alcohol concentration at approximately .229 percent.
- At 11.14pm, about when she entered the defendant’s vehicle, the doctor assessed her alcohol concentration as .214 percent.
- At about 11.55pm when she was driven to the motel, he assessed her blood alcohol concentration as being approximately .207 percent.
- Dr Griffiths also provided back calculation that was performed to the lowest rate of elimination, and even then, the blood alcohol concentration at the motel would have been .170 percent at least.
- Submissions were made by the defence in respect of how the complainant appeared at 7.00am the next morning: that there were no tell-tale signs of any adverse effects of intoxication. However, the empirical evidence was that her blood alcohol concentration at 7.00am that morning was .102 percent.
- A further submission was made that the prosecution are not able to say precisely when the act of carnal knowledge occurred during the period of time at the hotel from 11.56 pm to 4.09 am. I comprehend the submission to mean that, therefore, it is not possible to say what the complainant’s blood alcohol reading would have been at the time of the act of carnal knowledge, and therefore not possible to tell if the complainant had the cognitive ability to consent or not.
- The prosecution have set out in their submission a number of occasions the CCTV from the motel has captured the defendant moving in and out of the hotel room, going back and forth to his car. It can therefore be said that the act of carnal knowledge did not occur on any of the occasions the defendant left the room.
- In any event, I do not think that the complainant’s condition could have rehabilitated significantly in that time. I do not accept the defence submission on this point. One of the reasons I do not accept this submission is due to the evidence of Dr Griffiths.
- Dr Griffiths gave evidence the human body absorbs alcohol more rapidly if there is food in the stomach. The complainant’s evidence was that the last food she had consumed was bread with feta cheese shortly after her return from Palm Cove. Dr Griffiths further gave evidence the blood alcohol levels above .08 percent would result in critical judgment, perception and coordination being affected. Such symptoms can feature in blood alcohol levels of around .100 percent, and further, visual acuity can be impaired in levels over .100 percent.
- Levels of around .120 percent to .200 percent would cause fatigue and muscle relaxation. He gave evidence that “this is why people’s gate, muscle coordination, muscle relaxation and their speech becomes very slurred.”
- Dr Griffiths gave further evidence that memory can be effected by alcohol. People can experience a blackout of memory or “an inability to lay down new memories… a complete wipe out of that particular phase of that memory. And that’s from when a blood level of alcohol is reached, that’s the anterograde amnesia… so it’s a wipe out or a black out of memory, not a black out where they fall to the floor.”
- The evidence establishes that the complainant was not aware of her surroundings in the taxi and, according to what the defendant told the police, nor when she was with him. The defence submits that Dr Griffiths’ evidence in respect of the complainant was partly “the fact that she had suffered a black out from the time that she was at the Woolshed (9.30pm to 10.20pm) until 7.00am the following morning, did not mean that she lacked the cognitive capacity to consent to sexual intercourse.” I cannot see where Dr Griffiths explicitly states this, but even if it was so, there was other evidence as to the complainant’s ability to understand and be aware of her surroundings and what was going on.
- Defence also submits that Dr Griffiths’ explains the complainants behaviour by quoting an exchange with the doctor about the effect of alcohol on disinhibition: “I know complainants who have looked at videos of men that they have met at various locations here, and I know Gilligan’s is one of them, and they have looked at them and said ‘surely I wouldn’t have home with that individual’…” I do not accept that Dr Griffiths was making any specific reference to this complainant. As I remember, this exchange was a complete aside and Dr Griffiths was very careful not to venture into the question of consent or any other assessment of this particular complainant.
- Defence counsel submits that when viewed together, the complainant’s behaviour observed at the Woolshed Hotel some hours before she was taken to the motel, her behaviour with Mr Shankman, the description by Mr Watts that she was in a good mood outside Gilligan’s, together with the fact that the CCTV from the taxi shows the complainant touching the driver, were all features of her behaviour relevant to what occurred in the motel room throughout the course of the early hours of the next morning. I do not agree.
- The complainant’s behaviour at nightclubs with young men her own age does little to inform about whether she consented to sexual intercourse with the Defendant, being an older male and a stranger.
- This trial is concerned with whether consent was freely and voluntarily given to the defendant at the time of penetration. The behaviour referred to occurred much earlier in the evening, and, in my view, is irrelevant to the charged offence.
- The defendant was the last person to have interacted with the complainant that night.
- The defendant found the complainant on the north side of the Collins Street and Sheridan Street intersection. He later said to the police that she had jumped in his car at a red light. CCTV shows his car performing a U-turn at the lights at the intersection of Sheridan Street and Newport Avenue at 11.31pm. From there, he drove with the complainant in his vehicle for approximately 25 minutes until he stopped at the Cairns Southside International Motel at 11.56pm.
- When the defendant spoke to the police he gave the following observations of the complainant after he had picked her up:
- He said he picked up a young lady who looked like she was in trouble or was making trouble: “… I picked up a young lady last night who looked like she might have in the process of being in some trouble or about to actually break the law coincidentally and, um, took her to that inn and then booked her in for the night.”
- He said “Yeah, well, she looked like she was breaking in or trying to break into a property on the way home near the airport.”
- When explaining this, he said “Oh, well, she’s trying, seemed to be trying to get into a property with a, um, canvas sort of signage out. Not sure whether she was trying to break in or there’s someone on the other side that she was having some sort of kerfuffle with… I stopped to see if she was alright. She just came to the car and jumped in actually.” He again said “…she just jumped in the car...” (without any conversation occurring).
- He said, “Well, the way she was just leaning up against the, the thing and like she was scratching at the, um, or cutting at the canvas, I thought she might have had a knife or something that she was cutting it with… I thought she might have been trying to climb over it or cut it or something and break into… it was strange behaviour.”
- He later said “As I’ve told you, I, I, was concerned the minute I saw her and concerned that she may have been assaulted earlier…”
- He said that he was “trying to find out what was wrong with her” and “she wasn’t making much sense.” He further said “…um, she was Norwegian so she didn’t speak English too well, I’m not sure whether that was just a, well a language thing.” Despite this observation, the defendant later told police that the complainant was, in fact, coherent in her speech.
- Once the complainant was in the car, the defendant said he asked her where he should take her, but he was not able to find out from the complainant where she wanted to go or what she wanted to do, and that she did not answer him when he asked where she was staying. He made the following remarks to police regarding the trip from Sheridan Street to the motel:
- “… She didn’t want to tell me where I could take her or anything like that.”
- “She wasn’t clear what she wanted to do, where she wanted to go…”
- “… She was very tired and was falling asleep so I end up saying to her, do you want me to take you somewhere? … You obviously need to go to sleep… you’re tired, you’ve had a big night out.”
- When asked when he noticed the complainant was asleep, the defendant replied: “I’d be constructing this too but I think it’s when I went to see if I could check into a hotel and I came back to the car and she was asleep.”
- When asked “Did you have to wake her up?” (when they had arrived at the motel) the defendant replied “oh, no, I think she was awake…”
- The defendant made the following remarks regarding what had happened between himself and the complainant during the time they were in the motel room:
- He said that when he got her to the motel room, she was sick, she vomited on the bed and he cleaned it up: “Oh and then she, she was sick as well so… just cleaned it up and made sure she’s all right until I was satisfied she was okay and I left.”
- When asked if the complainant was asleep when the defendant was cleaning up, he replied “I don’t know, maybe. No, I don’t know. She had her eyes shut but I think she was awake.”
- When asked “Did you have a sleep at all?” by police, the defendant replied “Ah I don’t know. I did sit a while.”
- “I was just tidying up myself… I was going to have a shower and freshen up for the drive home and, um, while I was doing that she vomited so I then cleaned all that up and put her in the other bed.”
- The defendant shook his head when the following was asked: “Was she making any advancement of any type towards you? You’re shaking your head.”
- The defendant himself told police on numerous occasions he thought that the complainant was intoxicated or under the influence of drugs:
- “Oh, she wasn’t well, so I think she was intoxicated or I’m a bit worried she might have had some, some drugs…”
- “…I was concerned she, she may have been distressed or … intoxicated or maybe taken a drug or something…”
- When asked “Did you think she was drunk?” the defendant replied “Amongst a few other possibilities that could have been the case.”
- When asked by the police “what do you think led to her vomiting?” The defendant replied “booze, sickness…” and described the vomit as having a “red soft-drinky smell, you know, um, a mix of drink likely, rum and what do you call it, vodka and- ”
- When he was asked “so at any point in the night or now perhaps even, did you think that she was drunk and that’s what contributed to this vomiting?” and he replied “well you know, it’s one of many possibilities, isn’t it?”
- I did not form a favourable opinion of the defendant as a credible and reliable witness from the police interview. This is because of the context of the interview, and his demeanour. In respect of more than one matter, his answers were inconsistent.
- He was not frank about what happened over the period of nearly four hours in the motel room, and, in my judgment, did not give the police a complete account of what occurred although he purported to do so.
- The general demeanour of the defendant during the interview did not appeal to me as being indicative of a full and frank account. For example, his account of what happened at the motel did not include the numerous times he left the room and returned.
- When interviewed by police, he shook his head when asked if she was making “any advancement of any kind towards him” however, when his counsel put his instructions to the witness, the following exchange occurred:
“Q: …I’m going to suggest to you that, at some stage after that, he was in bed with you – got into bed with you. Do you have any memory?
A: I do not remember.
Q: Alright – that, over a period of time there was cuddling and kissing, do you remember anything like that?
A: No I [indistinct].
Q: That he during you kissing I mean he was kissing you, you were responding, do you remember anything like that?
A: No I don’t remember…
Q: At some times while that was taking place, you said the words ‘fuck me’ do you remember anything like that?
A: No I do not.”
- The fact that I do not accept much of the defendant’s interview does not lead to an automatic conclusion of guilt. I have put it to one side and decide what evidence I do accept in the trial to decide whether the Crown has proved all the element beyond reasonable doubt.
- I am satisfied from the evidence of the defendant and the CCTV footage, that the complainant was highly intoxicated and was falling asleep leading up to and in the motel, and was, therefore, not in the position to consent to sexual intercourse with the defendant.
Post offence conduct as demonstrating consciousness of guilt
- I have directed myself in respect of direction number 50.1 in the Benchbook and to the authorities mentioned therein. I have also referred to a recent authority of the R v Wells  QCA 155.
- The prosecution submit that the defendant’s conduct of removing the used condom from the motel room and disposing of it at his own home amounts to post offence conduct as demonstrating consciousness of guilt. The prosecution say this was an attempt by him to conceal evidence which implicated him in the offence and is indicative of a consciousness of guilt.
- The defendant told the police the reason he took the complainant to the motel room was to assist someone who appeared to him to be distressed. Had the condom, which contained the forensic evidence from both the defendant and complainant, been left in the room, it would have implicated him in having sexual intercourse with a female who lacked cognitive capacity to consent. He therefore removed and disposed this incriminating aspect of his contact with the complainant. The prosecution say there is no other explanation for that conduct.
- In addition, the prosecution submit that the defendant told the police a number of lies during the search warrant that are provable, and that they demonstrate a consciousness of guilt. The prosecution submits that whilst the defendant accepts he was in the motel room with the complainant, he distances himself from what happened within the room. The prosecution say he omitted to tell the police and therefore mislead them by distancing himself from one of the elements of the offence – that is, that he engaged in sexual intercourse with the complainant. The prosecution say the defendant mislead the police about the true state of the matter because he knew that the fact he had had sexual intercourse with the complainant would implicate him in the commission of the offence.
- The prosecution submit that further, the defendant asserted that the complainant was coherent where there is ample evidence in the trial that her speech was incoherent and that she was slurring her words. The prosecution submits the defendant told that lie because he knew that the truth of the matter – that she was incoherent due to her intoxication – would implicate him in the commission of the offence.
- It is pointed out that earlier in the conversation he had told the police the complainant was not making much sense and was not clear on what she wanted to do or where she wanted to go.
- Finally the prosecution say that when the defendant asserted that the last time he had sexual intercourse was “the night before last night” with his partner, the defendant in effect denied having sexual intercourse with the complainant. The Crown allegation is that the defendant raped the complainant on the same day as the search warrant and that, by denying he had sexual intercourse, the defendant was misleading the police about an essential element of the offence.
- As to the removal of the condom from the motel room, the defence say that the defendant had registered the room in his own name to his residential address and gave the operator details of his driver’s licence and credit card details, and therefore it would have been a very simple task to track him down because of the details he had provided.
- The defence further argue that if the defendant was keen to remove indicators of sexual intercourse having occurred, he could have taken the two empty condom wrappers with him. The defence argues that the fact that the condom wrappers were not hidden does not demonstrate any consciousness of guilt, but rather, the opposite. I do not accept this argument. There was available forensic DNA evidence in respect of the condoms that would not have been available from the wrappers alone.
- The inference to be drawn was that the defendant knew that the forensic evidence available from the condom would prove at least one element of the offence - that is, carnal knowledge.
- The defence submits that the defendant’s omission in telling the police about what occurred in the hotel room, and the post-offence conduct of removing the condoms, does not demonstrate a consciousness of guilt. The defence say the submission from the Crown ignores the fact that on many occasions he evoked his right to silence. I accept that it would be quite wrong to reason that because the defendant refused to answer questions in respect of some of the police interview, he must have had something to hide or be guilty of the offence.
- I cannot use against him the fact that he took notice of the police caution and chose to remain silent. Where the defendant did answer, I am entitled to have regard to those answers, whether I accept them and to give whatever weight I think appropriate, bearing in mind they have not been tested in cross-examination.
- In respect of the next lie alleged, being the defendant’s assertion about the last time he had sexual intercourse, the defence quote the following exchange between police and the defendant:
“Police:Have you had sex that may have required a condom here recently?
Defendant: Yeah –
Police:When was the last time you had sex?
Defendant:– the night before last
Police:And who was that with?
Defence counsel has emphasised the word here and argues that it is apparent the accused was answering the question about having sexual intercourse “here,” - being at his home residence.
- I have listened carefully to the audio recording of the conversation and I cannot accept this submission. I find as a matter of fact that the word here referred to the condom, not the residence.
- Defence argues that it is apparent that the policeman questioning the accused, and the defendant when answering, were at cross purposes in relation to where or who they were talking about insofar as actual acts of sexual intercourse were concerned. After listened repeatedly, I have come to the conclusion that there is actually no ambiguity in the passages in which the defendant did answer and I can use his answer as a consciousness of guilt.
Mistake of fact – s 24 of the Criminal Code
- Defence counsel also points to the following exchange:
Defendant:I can probably say that I, what’s the charge again? Or the allegation? Sexual assault? I didn’t sexual assault anyone last night.
Police:Ok. Do you know that that means in these circumstances?
Defendant:I understand sexual assault is making any sort of sexual contact with a person who’s not agreeable to it.
Police:Exactly. Consenting to it.
Defendant:Mmm that’s what concerns me. I I’m telling you I didn’t do that and there’s an allegation I have, no ---
Police:Well that’s the offence that we’re investigating.
The defence argued that that passage raises mistake. I do not accept the submission.
- In R v Makary  QCA 258, Sofronoff P said:
“It follows that before s 24 can arise for a jury’s consideration in connection with the issue of consent there must be some evidence that raises a factual issue about whether the accused believed that the complainant had a particular state of mind and also believed that the complainant had freely and voluntarily given consent in some way. Inevitably, that will require some evidence of acts (or, in particular circumstances, an omission to act) by a complainant that led the defendant to believe that the complainant had a particular state of mind consisting of a willingness to engage in the act and believed also that that state of mind had been communicated to the defendant, that is, that consent had been ‘given.’”
Later at paragraph 56;
“In Webster & Co v Australasian United Steam Navigation Co Ltd, Griffith CJ described s 24 (and s 25) as “rules of common sense as much as rules of law”. If that is to remain true, it is essential that evidence that is said to raise a requirement for a jury to consider s 24 does indeed raise that issue, both as to the defendant’s honest belief and as to the facts that reasonably may give rise to that belief.”
- A jury would necessarily be instructed to look at the evidence to decide whether there was a possibility that the accused honestly and reasonably held that view.
- At  of Makary the President said:
“In cases like this one, in which the appellant alleges that the complainant consented but did not give evidence, the raising of s 24 is problematical because the element of the accused’s belief can arise only by way of inference. As always, inference must not be confused with speculation.”
In order for the jury to consider this defence there must be evidence in the case which could give rise to an inference that:
- (a)the appellant subjectively believed that the complainant was willing to engage in sexual intercourse with him;
- (b)the appellant subjectively believed that consent had been given; and
- (c)those beliefs were reasonable.
- For those reasons it is clear that s 24 is not raised by that passage in the record of interview, which is the only evidence relied on.
- The accused did not give evidence. That is his right and the fact that he did not do so is not evidence against him. It does not change the onus of proof.
- Initially, defence counsel was not going to put his instructions to the complainant due to her total lack of memory of the events of the night in question. In the end, the complainant was recalled and that happened. She did not accept the suggestions (which, for the most part, were open ended questions about whether she “remembered” different events occurring, not if she consented to them).
- The passage from the interview does not raise s 24.
- The accused had carnal knowledge of the complainant.
- At the time of the penetration, the complainant did not have the cognitive capacity to give consent to the carnal knowledge freely and voluntarily due to the level of her intoxication.
- The accused indulged in various actions constitution post offence conduct, which demonstrated a consciousness of guilt.
- Distancing himself from the act of carnal knowledge;
- Asserting the complainant was coherent;
- Asserting the last time he had sexual intercourse was with his partner the “night before last”; and
- Removing the condoms from the hotel room.
- Having considered all the evidence, I am left with no reasonable doubt as to the guilt of the accused. I find that the prosecution has proved the element of lack of consent beyond reasonable doubt.
- The defendant is guilty of the offence.
 T1-14, ll 34 - 35.
 T1-17, l 1.
 T1-26, l 27-29.
 T1-31, l 10.
 T1-41, ll 13-15.
 T1-43, ll 6-8.
 T1-43, ll 38-39.
 T1-50, ll 34-35.
 T1-51, ll 21-30.
 T1-56, ll 14-16.
 T1-57, ll 40-46.
 Outline of Submissions on behalf of the Defendant, paras 64 – 66.
 Ibid, para 65.
 Ibid, para 66. The sequences referred to are snippets of CCTV captured throughout the Cairns inner-city precinct.
 T 1-62, l 1.
 Outline of Submissions on the behalf of the Defendant, para 60.
 T 1-65, l 5.
 T 1-65, ll 8-10.
 Outline of Submissions on behalf of the Defendant, paras 79-80.
 Outline of Submissions on behalf of the Defendant, para 67.
 T 2-32, ll 35-40.
 T 2-31, ll 15-26.
 Outline of Submissions on behalf of Defendant, para 93.
 Ibid, para 72.
 T 2-39, ll 18-21.
 R v Makary  QCA 258.
 T 7, ll 43-49.
 T 7, ll 51-53.
 T 8, ll 23- 27.
 T 16, l 6.
 T 15, l 25.
 T 10, l 45.
 T 8, l 43.
 T 9, ll 4 – 17.
 T 18, l 7.
 T 17, l 2.
 T 17, l 3.
 T 19, l 5.
 T 30, l 45.
 T 31, 20.
 T 9, l 4.
 T 34, ll 28 – 30.
 T 20, l 43.
 T 21, ll 10 – 17.
 T 22, l 29.
 T 16, l 49.
 T 17, l 53.
 T 34, ll 40 – 42.
 T 34, l 48.
 T 36, ll 2 – 9.
 T 2, p 8, ll 1-21.
  QCA 155, -.
 Outline of Submissions on Behalf of Defendant, paras 109 – 123.
 Ibid, paras 118 – 123.
 Ibid, para 128.
  QCA 258, 54.
  St R Qd 207 at 217.
- Published Case Name:
The Queen v Alan George Vico
- Shortened Case Name:
R v Vico
 QDC 176
25 Aug 2020