The Queen v Williams[2020] QDC 246

DISTRICT COURT OF QUEENSLAND

TABLE OF CONTENTS

Overview3

The elements of the offences and the prosecution’s particulars4

Count 1 - Burglary, by breaking, in the night4

Count 2 - Attempted rape6

Mistake of fact7

The evidence adduced by the prosecution8

Special witness8

Telephone evidence8

Tape recording9

The defence case9

General principles of law10

Onus and standard of proof10

Separate consideration of the charges10

Assessment of evidence10

Prior inconsistent statements11

Previous Convictions of Witness12

Bad Character of Defendant12

Circumstantial evidence13

Out of court confessional statements13

The evidence14

The events leading up to the alleged offending14

The alleged offending – the burglary18

The alleged offending – the attempted rape19

The events following the alleged offending20

Preliminary complaint evidence21

Pretext call22

The conversation with Daniel Williams24

Has the prosecution proved its case on count 1 beyond reasonable doubt?25

Has the prosecution proved its case on count 2 beyond reasonable doubt?27

Cross-examination as to complainant’s motive to lie28

Credibility of the complainant’s evidence29

Honesty about drug use and personal and financial circumstances29

Lies told by the complainant30

My finding regarding the complainant’s honesty32

Reliability of the complainant’s evidence32

The defendant’s credibility and reliability35

Conclusion regarding count 236

Verdicts36

Order36

Overview

1. [1]
   Either late in the evening on 5 November 2018 or in the early hours of 6 November 2018, the defendant entered the complainant’s home.  The complainant was at home in bed.  She awoke to find the defendant in her bedroom.  Subsequently, the defendant was charged on indictment with one count of burglary, by breaking, in the night and one count of attempted rape. 
2. [2]
   On 26 June 2020, a no jury order was made.  When arraigned before me on 22 September 2020, the defendant entered a plea of not guilty to the following offences:

3. [3]
   The trial proceeded with me sitting without a jury under Chapter 62 Division 9A of the Criminal Code.  As such, my role is to determine on the evidence whether the defendant is guilt or not guilty of each of the charges.
4. [4]
   In undertaking my role, I am required to apply, so far as is practicable, the same principles of law and procedure as would apply in a trial before a jury.^[1]  This includes taking account of any warning or instruction that would be required to be given to a jury.  Section 615C(3) of the Criminal Code requires that I record the principles of law that I have applied and the findings of fact on which I have relied.  I have done so below.
5. [5]
   For the reasons that follow, I am not satisfied beyond reasonable doubt of the guilt of the defendant on count 1 - burglary, by breaking, in the night, or with respect to the offence simpliciter being burglary.  I am also not satisfied beyond reasonable doubt of the guilt of the defendant on count 2 – attempted rape.

The elements of the offences and the prosecution’s particulars

Count 1 - Burglary, by breaking, in the night

6. [6]
   The particulars of the offence relied on by the prosecution are that the defendant entered the complainant’s home, between 9 pm and 6 am, by breaking louvres, with intent to steal property, or to sexually assault or rape the complainant.
7. [7]
   Section 419(1) of the Criminal Code provides that any person who enters or is in the dwelling of another with intent to commit an indictable offence in the dwelling commits a crime. 
8. [8]
   The offence is more serious if the offender enters the dwelling by means of any break.^[2]  A person who breaks any part, whether external or internal of a dwelling or any premises or opens by unlocking, pulling, pushing, lifting or any other means whatever, any door, window, shutter, cellar, flap or other thing, intended to close or cover an opening in a dwelling or premises, or an opening giving passage from one part of the dwelling or premises to another, is said to break the dwelling or premises.^[3]  A person who pushes or lifts an already opened door or window does not “break” the relevant dwelling or premises.^[4]
9. [9]
   Burglary is also a more serious offence if it is committed in the night.^[5]  “Night” means between 9 pm and 6 am.^[6]
10. [10]
    For the defendant to be found guilty of the offence of burglary, the prosecution must satisfy me beyond reasonable doubt that:

    1. (a)
       the defendant entered^[7] the dwelling^[8] of the complainant; and
    2. (b)
       at the time the defendant entered the dwelling, he intended to commit an indictable offence, namely stealing, or sexual assault, or rape.  Stealing, sexual assault and rape are each an indictable offence. 
11. [11]
    There is no issue that the defendant entered the dwelling of the complainant that evening.  He gave evidence that he did so.  The real issue is his intention at the time. 
12. [12]
    “Intent” and “intention” are familiar words that carry their ordinary meaning.  In ascertaining the defendant’s intention, I am permitted to draw an inference from facts which I find established by the evidence concerning his state of mind.  I can infer the defendant’s intention from the circumstances in which he was in the complainant’s home, and from the conduct of the defendant before, at the time of, or after he entered the complainant’s home.  I can also have regard to what the defendant has said about his intention. 
13. [13]
    The defendant denies that he entered with an intention to steal drugs or money or to sexually assault or rape the complainant.  He says he entered because he was concerned about the complainant’s welfare.  I consider his evidence in more detail below.
14. [14]
    For the defendant to be found guilty of count 2, with each of the circumstances of aggravation, the prosecution also bears the onus of proving that:

    1. (a)
       the defendant entered the dwelling by means of any break.  Relevantly, it must prove that the defendant entered the complainant’s home by breaking louvres; and
    2. (b)
       the offence was committed in the night. 
15. [15]
    There is no issue that the defendant entered the dwelling in the night.  He disputes that he entered it by means of breaking louvres.
16. [16]
    If the prosecution proves the offence of burglary, but does not prove both of the circumstances of aggravation, it is open to me to find the defendant guilty of the offence with such circumstance of aggravation as is established, or if there none are established, the offence simpliciter.

Count 2 - Attempted rape

17. [17]
    Section 350 of the Criminal Code provides that any person who attempts to commit the crime of rape is guilty of a crime. 
18. [18]
    For the defendant to be found guilty of count 2, the prosecution must satisfy me beyond reasonable doubt that the defendant attempted to have carnal knowledge of the complainant without her consent.^[9] 
19. [19]
    Carnal knowledge means the insertion of the defendant’s penis into the genitalia of the complainant.  The offence is complete upon penetration.  Penetration to the slightest degree is sufficient.  Ejaculation is not necessary.
20. [20]
    Consent means consent freely and voluntarily given by a person with the cognitive capacity to give consent.^[10] 
21. [21]
    There must in fact be “consent” as a state of mind.  Consent must also be “given” in the terms required by the section.  The giving of consent is the making of a representation by some means about one’s actual mental state when that mental state consists of a willingness to engage in an act.  Although a representation is usually made by words or actions, in some circumstances a representation might also be made by remaining silent and doing nothing.  Particularly in the context of sexual relationships, consent might be given in the most subtle ways, or by nuance, evaluated against a pattern of past behaviour.^[11] 
22. [22]
    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. attempting to insert his penis into the complainant’s vagina without her consent.  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 prosecution says was an attempt to commit the offence.  This intention on the part of the defendant must be proved by the prosecution beyond reasonable doubt.
23. [23]
    It is necessary for me to consider what the defendant did when it is alleged that 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.  That is, there must be some acts or acts by the defendant that 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 prosecution must prove, beyond reasonable doubt, that there was something done by the defendant that was conduct of the kind that I have just described.
24. [24]
    As such, I must consider the evidence of what the defendant was doing when, the prosecution argues, he was attempting to have unlawful carnal knowledge of the complainant.  I must be satisfied beyond reasonable doubt that he was doing what the prosecution 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 prosecution alleges.  It is unnecessary for the prosecution to prove that the defendant did everything that he could have done to bring about the intended result. 

Mistake of fact

25. [25]
    If I am satisfied beyond reasonable doubt the defendant attempted to put his penis in the complainant’s vagina and that the complainant did not consent to the defendant’s attempts to put his penis in her vagina, there is another matter I must consider.  It concerns the defence of mistake of fact. 
26. [26]
    It is my duty to consider all possible defences that arise and need to be considered in reaching my verdict, even where they are not raised by defence counsel, as is the case here. 
27. [27]
    I will not need to consider the defence if I am not satisfied that the prosecution has proved beyond reasonable doubt that the defendant attempted to rape the complainant.
28. [28]
    Our law provides that a person who does an act under an honest and reasonable, but mistaken belief in the existence of any state of things is not criminally responsible for the act to any greater extent than if the real state of things had been such as the person believed to exist.^[12]
29. [29]
    In the context of this case that means, even if I find that the complainant was not in fact consenting, I must consider whether the defendant, in the circumstances, honestly and reasonably believed that the complainant was consenting. 
30. [30]
    A mere mistake by the defendant is not enough.  The mistaken belief in consent must have been both honest and reasonable.  An honest belief is one which is genuinely held by the defendant.^[13]
31. [31]
    A defendant’s belief is reasonable, when it is one held by the defendant, in his particular circumstances, on reasonable grounds.  I must consider whether the defendant’s belief, based on the circumstances as he perceived these to be, was held on reasonable grounds (as opposed to whether a reasonable person would have held it).^[14]  As the focus is on the defendant’s belief rather than that of a theoretical reasonable person, the information available to the defendant and the defendant’s circumstances are of relevance in considering whether a belief was reasonably held.^[15]
32. [32]
    It is not for the defendant to prove that he honestly and reasonably believed the complainant was consenting but for the prosecution to prove beyond reasonable doubt that the defendant did not honestly and reasonably believe that the complainant was consenting.
33. [33]
    As such, if I find that the complainant was not in fact consenting, I must ask myself “can I be satisfied beyond reasonable doubt that the defendant did not have an honest and reasonable belief that she was consenting?”.  If I am not so satisfied, even though the complainant was not consenting, I must find the defendant not guilty.

The evidence adduced by the prosecution

34. [34]
    The evidence adduced by the prosecution in this case was comprised of photographs of text messages,^[16] photographs of the complainant’s house,^[17] an audio recording of a conversation between the complainant and the defendant,^[18] a document setting out the timing and duration of calls made from and received on the complainant’s phone,^[19] and the evidence of four witnesses. 
35. [35]
    The witnesses called by the prosecution were:

    1. (a)
       the complainant;
    2. (b)
       Amanda McKay;
    3. (c)
       Katherine Williamson; and
    4. (d)
       Detective Sargent Julie Hauff.

Special witness

36. [36]
    The complainant gave her evidence from a room separate from the courtroom.  Her evidence was given by the use of an audio-visual link between the room in which she was seated and the courtroom.  When the complainant gave her evidence, there was no person in the room with her.  I excluded all non-essential persons from the courtroom itself.  The defendant was present in the courtroom, but he was positioned in such a way that the complainant could not see him on the monitor or at all while she gave her evidence.  That procedure for taking the evidence of the complainant was in accordance with a court order made on 25 May 2020. 
37. [37]
    I do not draw any inference as to the defendant’s guilt from the order or the manner in which the evidence was given.  The probative value of the complainant’s evidence is not increased or decreased because of those matters.  I have not given it any greater or lesser weight because of the order or the manner in which the evidence was given.

Telephone evidence

38. [38]
    On application by the prosecution, I permitted the evidence of Ms Williamson to be given by telephone.  On application by the defendant, I also permitted the complainant to give further evidence by telephone.  I do not give that evidence any more or less weight, and I do not draw any inference adverse to the defendant, simply because that evidence was given by telephone.

Tape recording

39. [39]
    The prosecution also relies on a tape recording of a conversation said to have been had between the complainant and the defendant.  Although a transcript was provided for my assistance, I do not regard it as evidence.  It is the sounds that I heard from the tape recording that I regard as the evidence.

The defence case

40. [40]
    The defendant does not deny that he entered the complainant’s dwelling.  His evidence is that he entered it because he was concerned for the complainant’s welfare.  He also says that he climbed in through an area where louvres were already broken, but that as he climbed in, he accidentally broke an additional louvre by hitting his head on it.  He denies attempting to rape the complainant.  He says he simply sat on the bed and shook the complainant in an attempt to wake her.
41. [41]
    The defendant gave evidence and called evidence.  While the defendant does not have to give evidence, or call other people to give evidence on his behalf, or otherwise produce evidence, he chose to give evidence and call evidence from his brother, Daniel Williams, and his mother, Miranda Bahr.  That he has done so does not mean that he assumed a responsibility of proving his innocence.  The burden of proof has not shifted to him.  His evidence and that of the other witnesses called for the defence is added to the evidence called for the prosecution.  The prosecution retains 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.
42. [42]
    The issues for determination are not resolved by choosing between the complainant’s evidence and that of the other prosecution witnesses, and the evidence of the defendant and his witnesses.  The prosecution case depends upon me accepting that the evidence of the complainant was true and accurate beyond reasonable doubt despite the sworn evidence by the defendant and his witnesses.^[20]  
43. [43]
    Where, as here, there is defence evidence, usually one of three possible results will follow.  First, if I find the defence evidence is credible and reliable, and it provides a satisfying answer to the prosecution’s case, the verdict will be not guilty.  Second, if I find the defence evidence was not convincing, but it nevertheless creates a state of reasonable doubt in my mind as to what the true position was, the verdict will be not guilty.^[21]  Third, if I find that the defence evidence should not be accepted, that does not lead to an automatic conclusion of guilt.  If I find the defence evidence unconvincing, I must 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 accept, I am satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence in question.^[22]

General principles of law

44. [44]
    There are some general principles of law that apply to all criminal prosecutions.  I set them out below.  In this case, there are some additional principles to which I must have regard.  I also set them out below.

Onus and standard of proof

45. [45]
    The prosecution has the onus of establishing each offence charged beyond reasonable doubt.^[23]  There is no onus on the defendant.  The defendant is presumed to be innocent.  This means that in order to convict of an offence, I must be satisfied beyond reasonable doubt of every element that goes to make up the offence charged.  To convict of the more serious offences alleged, the prosecution must satisfy me of each circumstance of aggravation beyond reasonable doubt.

Separate consideration of the charges

46. [46]
    Two charges have been brought against the defendant.  I must consider each charge separately, evaluating the evidence relating to that particular charge to decide whether I am satisfied beyond reasonable doubt that the prosecution has proved its essential elements.  Subject to the qualification in relation to the circumstances of aggravation that I have set out in paragraph [16] above, I must return separate verdicts for each charge.
47. [47]
    The evidence in relation to the separate offences is different, as are the elements of the offences.  I understand that my verdicts need not be the same. 
48. [48]
    My assessment of the complainant as a witness will be relevant to all counts, but I must consider her evidence in respect of each count when considering that count.  If I have a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one of the counts, whether by reference to her particular demeanour or for any other reason, I must take that into account in assessing the truthfulness or reliability of her evidence generally.  If I am 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.  That does not necessarily mean I cannot convict of any other count.  I have to consider why I have some reasonable doubt about that part of her evidence and consider whether it affects the way I assess the rest of her evidence.  I must consider whether my doubt about that aspect of her evidence causes me also to have a reasonable doubt about the part of her evidence relevant to the other count.^[24]

Assessment of evidence

49. [49]
    In arriving at a verdict, I must act impartially and dispassionately and only on the evidence properly admitted during the trial.  The evidence in this case was comprised of photographs of text messages,^[25] photographs of the complainant’s house,^[26] an audio recording of a conversation between the complainant and the defendant (“the pretext call”),^[27] a document setting out the timing and duration of calls made from and received on the complainant’s phone,^[28] and the evidence of the seven witnesses.
50. [50]
    The issues that exist must be resolved by taking into account all of the evidence.  That does not mean that I have to resolve all of the questions or inconsistencies that may have been raised by the evidence or which conceivably arise about the facts.
51. [51]
    The evidence that I accept and that which I reject may be based on a number of things, including what a witness had to say in the witness box, the manner in which the witness gave evidence, the general impression that he or she made when giving evidence, statements which a witness may have made at an earlier time, such as in a statement to the police or in the pretext call, and my assessment of other evidence including documents and other material.
52. [52]
    It is for me to decide whether I accept the whole of what a witness says, or only part of it, or none of it.  I might reject parts of the evidence of a witness if I find it unreliable or because I consider the witness had some motive to conceal or embellish that part of the evidence that he or she gave, or to distort the truth.  The fact that I might not accept a portion of the evidence of a witness does not mean that I must necessarily reject the whole of that witness’s evidence.  I may accept parts of it if I think it is worthy of acceptance.  If I conclude that particular evidence is not truthful or reliable, I will not take that evidence into account in determining whether the prosecution has established guilt. 
53. [53]
    In the case of conflicts, it is for me to decide whether they are important to resolve, or unnecessary, given the views that I reach about other parts of the evidence when I assess the evidence and the cases which the parties have advanced. 
54. [54]
    In drawing any inferences, I must be satisfied that they are reasonable ones to draw from the facts that I find have been established by the evidence.  I must not engage in speculation or conjecture to fill in any gaps in the evidence, but it is up to me to decide whether I accept particular evidence and, if I do, what weight or significance it should have.
55. [55]
    There is a difference between honesty and reliability.  A person might honestly believe what he or she says about what he or she heard or saw and yet not be reliable in recollection, perhaps because of errors in observation, or of recall, or because of an inability to describe what was heard or seen.  This might become apparent when other objective evidence is considered.

Prior inconsistent statements

56. [56]
    The defence relies on a number of previous inconsistent statements made by the complainant.  The previous statements made by the complainant is evidence of the facts stated in the statement.  It is a question for me whether I accept the evidence and, if so, what weight I attach to it.  In estimating the weight that can be attached to the statement, I must have regard to all the circumstances from which an inference can reasonably be drawn as to its accuracy or otherwise.^[29]
57. [57]
    I should consider whether the statement was made around about the same time as the occurrence of the facts to which it relates.  I should also consider whether the complainant had any incentive to conceal or misrepresent the facts, and any specific factors that may call the reliability of the prior statement into question.  I should take into account the reasons the complainant gave for giving the statement in the first place and then for changing her version of events.
58. [58]
    If I find that there are significant differences between the prior statement of the witness and the evidence the witness gave in this Court, and I find that no acceptable explanation has been provided for the inconsistency, it may cause me to be hesitant about the witness’s accuracy, honesty, reliability and credibility generally.

Previous Convictions of Witness

59. [59]
    Evidence has been given that Daniel Williams, who gave evidence for the defendant has previous convictions.  That is something I can take into account when considering his credibility and the weight to be given to his evidence.
60. [60]
    The fact that someone has previous convictions does not necessarily mean his evidence has to be rejected out of hand.  It is a matter for me what weight I give to the fact that he has been previously convicted.
61. [61]
    In deciding that, I must look at the rest of the evidence, including any evidence that supports his evidence independently, and weigh his evidence and the fact that he has convictions in that context.
62. [62]
    If, after I have done that, I am satisfied that he is a truthful and accurate witness, I can act on his evidence notwithstanding that he has previous convictions.

Bad Character of Defendant

63. [63]
    Evidence has been given that the defendant has previously used illicit drugs.  That fact must not be used by me to say that because he has used illicit drugs before, therefore he must be guilty of the present offences.  Its use is more limited than that. 
64. [64]
    The manner in which the defence has been conducted has involved a challenge to the truthfulness of prosecution witnesses, particularly the complainant.  In evaluating the defendant’s evidence and determining what impact it has on my assessment of the truthfulness of the prosecution witnesses, I am entitled to take into consideration that the defendant is a person who has previously used illicit drugs.
65. [65]
    A finding that I reject his evidence and accept that of the prosecution witnesses may lead me to find him guilty if the challenged evidence proves or helps to prove the elements of the offence.  I must come to any finding of guilt by that process, not by assuming that because of his past drug use that he must have committed the offence for which he is now on trial.

Circumstantial evidence

66. [66]
    The prosecution’s case insofar as it concerns the issue of intent to commit an indictable offence is a circumstantial one. 
67. [67]
    When the case against a defendant rests substantially upon circumstantial evidence, a verdict of guilty cannot be returned unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the defendant.^[30]  To be satisfied beyond reasonable doubt of the guilt of the defendant it is necessary not only that guilt should be a rational inference, but also that it should be the only rational inference that the circumstances would enable to be drawn.^[31]
68. [68]
    For an inference to be reasonable, it must rest upon something more than mere conjecture.  The bare possibility of innocence should not prevent a finding of guilt, if the inference of guilt is the only inference open to a reasonable person upon a consideration of all the facts in evidence.^[32]
69. [69]
    Further, in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.^[33]  The evidence is not to be looked at in a piecemeal fashion.^[34] 

Out of court confessional statements

70. [70]
    The prosecution relies on answers said to have been given by the defendant in a recorded telephone call with the complainant on 15 November 2018 as supporting its case against him.  It also called evidence from Ms McKay about a conversation between her and the defendant on 6 November 2018 on the basis that it contained admissions.  In order to rely on that evidence, I must be satisfied that the defendant did give the answers that are attributed to him, and that they were true.
71. [71]
    The evidence of the pretext call is in the form of an audio recording.^[35]  As I have already mentioned, although I was also given a transcript to look at while the recording was played, I do not regard it as the evidence.  If my view of any part of the conversation differs from what the transcript shows, it is my view that must prevail.
72. [72]
    If I am satisfied that the statements that the prosecution attributes to the defendant were in fact made by him, I must then consider whether those parts that the prosecution relies on as indicating guilt are true and accurate.  It is up to me to decide whether I am satisfied that those things said by the defendant which would tend to indicate that he is guilty of the offence were true.  If I am not satisfied, I cannot rely on them as going to prove his guilt.^[36]  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.  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.  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.

The evidence

The events leading up to the alleged offending

73. [73]
    The defendant and complainant have known each other for a long time.  They have been friends for over a decade,^[37] although they were not always in close contact throughout that time.  In the months leading up to the alleged offending, the complainant and the defendant were in more regular contact.  They were both consuming drugs during that time, including cannabis and methylamphetamine.^[38]
74. [74]
    In the days before the alleged offending, the defendant visited the complainant at her home.  There are inconsistencies between the evidence of the complainant and the defendant about that visit.
75. [75]
    During her evidence in chief, the following exchanges occurred about that visit:^[39]

“All right.  If we can go back to the weekend immediately before this?‑‑‑Yep.

So Saturday, the 3^rd of November;  Sunday, the 4^th of November.  Do you remember if you saw Dudley on the weekend?‑‑‑So – yeah, he had dropped over.  I’d had a big fight with mark and he had called me and I was upset.  So he dropped over to check on me and see if I was okay.

Which day was that that he came over?‑‑‑The Sunday.

Okay.  In the morning or afternoon?‑‑‑So I think he dropped over on the Saturday.  It would’ve been for a little bit in the afternoon and then he came back – I think it was Sunday night he was there.  And he was quite high and my partner^[40] ended up asking him to leave so ‑ ‑ ‑

Okay.  Can we work ‑ ‑ ‑?‑‑‑I’m just – I’m just trying to get the days right.  Sorry.

That’s okay.  Well, let’s talk about the Sunday when you say your partner Paul asked him to leave?‑‑‑Yeah.

Was Dudley – did Dudley come over on his own?‑‑‑He came over with a friend but his friend left because, yeah, Dudley was just being a bit silly.

Right.  And you say he and Paul had a disagreement ‑ ‑ ‑?‑‑‑Yeah.

‑ ‑ ‑ and Dudley was being silly.  What was your observation of Dudley on that Sunday evening?‑‑‑He was just extremely high and just really messy.  Just, like – just being really silly and sort of looking around through my house and stuff.  Like, just really drugged up behaviour, I guess.

Right.  And when Paul asked him to leave ‑ ‑ ‑?‑‑‑Yeah.

‑ ‑ ‑ did he leave?‑‑‑Yeah.  Yep.

Now, what happened after Dudley left that Sunday evening?‑‑‑Me and Paul had an argument and he left as well.

What was that?‑‑‑And then I ‑ ‑ ‑

Sorry to interrupt.  What was that ‑ ‑ ‑?‑‑‑The ‑ ‑ ‑

‑ ‑ ‑ argument about?‑‑‑Just drugs and – yeah, the company I was keeping at the time.

Now, on this Saturday and Sunday when you saw Dudley ‑ ‑ ‑?‑‑‑Yeah.

Can I just check, sorry, Rachel.  Do you have something in there with you?‑‑‑Pardon?

Do you have something in there with you or you just – what have you got?‑‑‑Just my statement.

All right.  Can you pop it to the side for me if ‑ ‑ ‑?‑‑‑Yeah.

‑ ‑ ‑ that’s all right?‑‑‑Yep.  Sorry.

That’s okay?‑‑‑I’m trying not to get it wrong.

No, that’s all right.  So just set it to the side.  Don’t worry about your statement.  Okay?‑‑‑Yep.

All right.  Now, on the Saturday/Sunday when you saw Dudley ‑ ‑ ‑?‑‑‑Yeah.

‑ ‑ ‑ did he – you mentioned earlier he’d have a crack at you at various stages throughout your friendship.  Did he have any romantic or sexual cracks at you over that weekend?‑‑‑I don’t think so, no.  Nothing that, like, bothered me anyway.  Like – yeah.  No.

Okay.  Now, so you’ve said he – Paul asked him to leave on the Sunday evening and he left and then Paul left?‑‑‑Yeah.

Did you see Dudley again on that Sunday night?‑‑‑No.”

76. [76]
    During cross-examination, the complainant gave evidence that she used methylamphetamine on the day before, when the defendant and Jai came over for a visit.  She said she probably used a point at that time, if that.^[41]  Later in her cross-examination, the complainant said that the defendant and Jai came over on Sunday 4 November 2018.  She said that the defendant came over to check on her as she had spoken to him on the phone and she was upset.  She accepted that she told the defendant about her relationship breakup, and that she had fought with her ex-boyfriend about child support.  She also accepted that she told him that she did not have any money.^[42]  The complainant denied the suggestion that Paul was not present when the defendant and Jai came to visit.  She denied that she had broken up with Paul just prior to the visit.^[43]
77. [77]
    The defendant’s evidence on this issue was that on Sunday 4 November 2018, he spoke to the complainant on the phone.  He said the complainant was really upset and was talking about how an ex-boyfriend had not paid her child support and that he had hit her in the face.  The defendant went to visit the complainant in her home.  He had another person with him, whose name was Jai.^[44]  He said that during that visit the complainant said she had broken up with Paul or had an argument with Paul and that Paul would not give her stuff back.  The defendant said that Paul was not at the house during his visit on the Sunday.^[45]  During cross-examination, the defendant accepted that he would have used ice that day.^[46]
78. [78]
    There are two phone calls made by the defendant to the complainant early in the morning of Monday 5 November 2018.^[47]  The defendant visited the complainant that morning.  It was a brief visit.  The complainant was sitting out the back having a smoke.  The defendant brought the complainant some tobacco and some of the money that he owed her.  They spoke about the fact that the defendant was going to a doctor’s appointment in Brisbane that day with his mother to get some head scans.  The defendant asked for some drugs and the complainant gave them to him.^[48]  During cross-examination, the defendant accepted that he consumed some ice on that occasion.^[49]
79. [79]
    During cross-examination, the complainant accepted that she was still upset at that time, and she was scared that she was going to be evicted as she was behind on her rent.  She accepted that she may have told the defendant that she wanted to get more drugs to sell them to get some money.  Although the complainant accepted that the defendant told her he was going to Brisbane for a medical appointment that day, she did not think he said he would come back later to check on her, but her answer to that question was not definitive.^[50]
80. [80]
    The defendant gave similar evidence to that of the complainant about the timing and length of the visit on Monday morning.  He said he brought the complainant a small, half pouch of tobacco.  He said that the complainant appeared scattered and was upset with her life and was concerned about losing her house.  He says he was concerned that she may commit suicide.^[51] 
81. [81]
    After visiting the complainant, the defendant left to travel to Brisbane with his mother for a doctor’s appointment.  The defendant rang the complainant at 11.41 am.^[52]  The complainant was unsure if they had shared any telephone calls that day, but gave evidence that the contents of any such conversations “…wouldn’t really be something that would stick out.”^[53]  She was never cross-examined about the contents of that telephone conversation.  The defendant and his mother both gave evidence that the defendant received a call from the complainant while they were in the car together on Monday 5 November 2018 on their way to Brisbane.  They both said that the defendant answered the phone on speakerphone and that the complainant rang about selling a motorbike as she needed the money to pay for a drug debt.^[54]  The complainant also gave evidence of being in contact with the defendant during the day about selling a motorbike.^[55]
82. [82]
    The contents of a Facebook exchange between the complainant and defendant are part of Exhibit 1.  There is nothing sexual in that exchange.  At 4.40 pm the complainant sent the defendant a photograph of a motorbike.  The exchange ends with the complainant asking at 8.38 pm how the defendant’s doctor’s appointment went.  The defendant did not respond.^[56]
83. [83]
    The defendant was unclear about the time that they returned home from Brisbane, other than that it was late – after dark.  He thought it was around 10.30 pm or 11 pm.^[57]  The defendant’s mother confirmed that she drove her son to a medical appointment in Brisbane on Monday 5 November 2018.  She also said that they got back after dark.  She thought it was around 7 or 7.30 as she had to make arrangements for her foster children to be collected by someone else.^[58]  
84. [84]
    The defendant says he spent a few hours at home after the return from Brisbane.  He had dinner, had a shower and changed his clothes and had some ice.^[59] 
85. [85]
    That evening, the complainant gave evidence that she was at her home with the older of her two sons.  She went to bed after him.  She estimates it was between 10.00 pm and midnight when she retired.  She says that before she did so, she consumed two or three cones containing cannabis and taken some muscle relaxants to help her relax and go to sleep.  The complainant had suffered a back injury at work the month prior.^[60]  She says did not feel any different to any other night.^[61]

The alleged offending – the burglary

86. [86]
    The complainant gave evidence that during their friendship, the defendant might sometimes just turn up to her home, or sometimes he would message and say he was going to come over.  He did not have keys to her home.^[62]  She estimated he had been in her home approximately 10 times.  She says he had never been in her home without her knowledge or uninvited.^[63]  She said she had not told the defendant he was welcome to come into her home at any stage.^[64]  When the complainant went to bed, her house was locked and secured.^[65] 
87. [87]
    At the time she woke to the defendant in her bed, the complainant did not see how the defendant had entered her home that morning.  It was only later that day that she saw broken glass from the louvres.  She identified where the louvres had been broken.  The photographs depict that the area had been repaired with cardboard.  The complainant explains that was done the following day.^[66]
88. [88]
    During cross-examination, the complainant rejected that three of those windows had been broken previously, such that only one was broken on the relevant night.^[67]  However, she also said that she knows that her son did break one louvre and that they were constantly falling out and the landlord was always coming around and fixing them.  She said that on the night that the defendant broke in, there was smashed glass all inside the house and that she sent him a message suggesting that if he was concerned about her, he would have cleaned up the glass.^[68]
89. [89]
    The defendant gave evidence that a few hours after returning home, he went to the complainant’s home to check on her and to pay her the money he owed her.  He was not clear about the time that he got there, other than that it was very late.^[69]  When the defendant arrived at the complainant’s house, he said that the lights were on in the house and the complainant’s car was unlocked in the driveway.^[70]  The complainant accepted that this was likely the case.^[71]
90. [90]
    The defendant gave evidence that he went around the back door and knocked, like he usually would.  He waited for a while and rolled himself a smoke.  He tried knocking again several times – on the wall and on the front door.  He knocked on a window and there was no answer.  He started another smoke and thought about the fact that she should have been awake by now so he went to the louvres.  He moved a louvre and sung out through it “Rachael.  Rachael.  Oi.  Rachael.  You right or what?”  He then went to move the louvre more and it slid out and cracked.  He then finished his smoke.  He kept singing out.  He thought that it was odd that she had not answered so he banged hard on the front window and shone a torch through the window.  He checked the car and found the door was unlocked.  He went around the back and had another cigarette and thought about it some more.  He banged on the back door and there was no answer.  At that point, he thought he better go in and check that she was okay.  He then climbed up through the window, through a gap where there were already three broken louvres.  As he got through, he accidentally hit his head on the louvre above the gap and that louvre fell out and broke.  He then called out for her as he walked through the house.^[72]

The alleged offending – the attempted rape

91. [91]
    The complainant’s evidence of what occurred was as follows:^[73]

“Can you tell us what you remember next after you went to bed?--I just remember waking up and I was, like, across my bed and, like, my head was sort of nearly off the edge of the bed, kind of pushed into the edge of my mattress, and just sort of felt really heavy, like I couldn’t get up, and then I turned around and realised that someone was – that Dudley was trying to have sex with me. And I don’t really know if he put his penis in there or not. I just remember he seemed like he was, like, really trying, that he wasn’t – like it wasn’t working, like he wasn’t hard enough or something.”

92. [92]
    The complainant was lying on her front and she described the defendant was on his knees and holding her in place.  The complainant is unsure what was holding her down.^[74]  The defendant was holding her boxer shorts and underwear to the side.  She said the defendant was trying to force his penis into her vagina.  When she woke and spoke to him, she could not recall what she said, but the defendant became frustrated or angry and said “All right. We’ll stop then” and got off her.^[75]
93. [93]
    After he got up, she took herself to the bathroom and saw blood on her pants and she started washing them.  In evidence she said she did not know why she did that, she “just wanted to get the blood off them.”  She had her period at the time and had a sanitary pad in place.^[76]  She said she would not have had sex with the defendant, or her own partner, when she was menstruating.^[77]
94. [94]
    The complainant said while she was in the bathroom the defendant was wandering around the house and mumbling.  She described that he “was really off his head”, “he was not making sense”.  She said it was like he was almost confused but later he appeared normal.  She could not understand what was happening and went back to bed.  She just wanted him to leave and agreed she would like McDonalds, to encourage him to go.  She got into bed.  He tucked her in and left.  She heard the defendant leave through the front door and fell asleep.^[78]
95. [95]
    The complainant gave evidence that she did not give consent to the defendant to have sex with her, nor had she asked him to.^[79]
96. [96]
    The defendant denies that he attempted to rape the complainant.  His evidence of what occurred from the time he found her in the house is as follows:^[80]

“And was she responsive?‑‑‑No.  I walked up, and I hit the bed with my foot, “Hey”.  No response.  And then I sat down on the bed, leaned over and shook her, and still – I went, “You right or what?”  And then she woke up.  I said, “You right or what?”  She’s like, “Yeah.  Where you going?”  I’m like, “What are you doing?  Do you want a feed or not?  Did you eat?  Are you right or what?”  And then she said, “Yeah.  Yeah”.  I said, “Any cones or what?”  She’s like, “Yep.  Right”, and walks to the toilet, comes back.  She’s in a – there’s a little room where the bedroom is, walked around the little – like, a little front spare room, and that’s usually where we smoke cones or wherever it is, and there’s a lounge ‑ ‑ ‑

By “cones”, do you mean cannabis?‑‑‑Yeah, marijuana.

Yeah?‑‑‑Yeah.  And then I just went in and laid on the lounge there and had my feet facing towards the door, and she come in and started chopping up, and then I got up.  I said, “Are you right or what?”  And then I leaned over, and she was sort of half leaned over a little bit, just to get the bong, and I sort of walked in behind her and cuddled her, pulled her towards me, and she sort of pushed back, and then I said, “You right?”  She’s like, “Yeah.  Yeah.  Right”.  So I just laid back on the lounge chair, had a couple of cones.  She had a cone;  I had a cone;  she had a cone;  I had a cone.  And I said, “Do you want a feed or what?  Are you right?”  She said, “No”.  She’s going to go back to bed.  o she went back to bed, so I pulled the blankets over her, rugged her up, made sure she was all right, laid down with her, cuddled her and just – I just said, “You tell me when you’re going to sleep, and I’ll go home”.  And then I just sort of laid down there cuddling her for – I don’t know – 10 or 15 minutes.  And then I just heard her breathing, and I didn’t – yeah, I got up and left, went home.  That’s about it, really.”

The events following the alleged offending

97. [97]
    The next morning when the complainant woke up, she says she was confused.  She checked her handbag and the methylamphetamine that had been in her bag was gone.  She says she “freaked out about that” as they were not hers and she had no money.  She messaged her friend Ms McKay.  In the message she said that the defendant had taken the drugs.^[81]  The complainant said the drugs in question belonged to Ms McKay.^[82]
98. [98]
    The complainant did not initially tell Ms McKay what she says happened with the defendant in the bedroom.  At some point, she told her that she thought the defendant had sex with her and that Ms McKay responded “My God.  How heavy do you sleep?”.  She says she did not tell Ms McKay any of the details.^[83]
99. [99]
    The complainant also gave evidence that she had a conversation with Katherine Williamson about what happened with the defendant.  Ms Williamson worked at the real estate agency that managed the property that the complainant rented.  As a result of that conversation, Ms Williamson arranged for Detective Sergeant Julie Hauff to come to the real estate agency to talk to the complainant.  Detective Sergeant Hauff gave evidence that she was called to the real estate agency to talk to the complainant on 12 November 2018.^[84]  The complainant did not give a statement to police that day.  She went back two days later, on 14 November 2018, and gave one.^[85]  She also went back to the police station on 15 November 2018 and made a telephone call to the defendant, which Detective Sergeant Hauff arranged to be recorded.^[86]

Preliminary complaint evidence

100. [100]
     Ms McKay gave evidence that on the morning of 6 November 2018 at about 8.54, she received a text message from the complainant saying “Mandy, I think he had sex with me.”  She said that she said “Well, how strong a sleeper are you?”.  Ms McKay also said that the complainant told her it happened the night before and that the defendant had broken into her house.  She said that the complainant told her that she was asleep and that she woke up and the defendant was on top of her and that she said “Oi. Oi” or something and that the defendant said “I’m sorry.  I’ll stop”.  Ms McKay says the complainant did not tell her anything about where she was when the defendant had raped her.^[87] 
101. [101]
     Ms Williamson gave evidence that in November 2018 she rang the complainant having overheard a conversation between two others at the real estate agency about the house being broken into.  Ms Williamson said that when she rang the complainant, she was sobbing.  She asked the complainant what was wrong, and the complainant said, “the house was broken into last night”.  Ms Williamson said she made enquiries about the property and what might need to be fixed and the complainant said “I can’t do this.  I can’t do this.”  Ms Williamson asked her “Why can’t you do this?  I need to know, so we can make you safe”.  She says the complainant responded, “I’m not safe.”  Then Ms Williamson said to her, “How are you feeling?”  She says the complainant responded “Yep.  I’m not okay.  I’m not good.”  The complainant did not respond when Ms Williamson asked why.  At that point Ms Williamson overheard something further from the other conversation that was occurring at the real estate agency and so she asked the complainant whether she had been assaulted last night.  She says that the complainant said yes.  Ms Williamson says the complainant would not answer when she asked if she had seen a doctor but said yes when Ms Williamson asked her if she had been sexually assaulted.  Ms Williamson says the complainant was screaming on the phone and inconsolable after that.  Ms Williamson said that the complainant did not give any detail about what the sexual assault was, and that she did not ask.
102. [102]
     The evidence of Ms McKay and Ms Williamson about what the complainant told them about the alleged sexual offending is preliminary compliant evidence.  I do not regard the evidence as proof of what actually happened.  It is not evidence of the truth of the out of court statements.  It can only be used by me as it relates to the complainant’s credibility. 
103. [103]
     According to the evidence of Detective Sergeant Hauff, the day she was called by Ms Williamson to come to the real estate agency was 12 November 2020.  I accept the Detective’s evidence as she seemed to have a clear recollection of the timing of the various conversations in relation to this matter.  As such, the account given to Ms Williamson that “the house was broken into last night” was given a week after the incident.  This is not consistent with the complainant’s evidence as to when the offence occurred.
104. [104]
     The account given to Ms McKay is also potentially inconsistent with the complainant’s evidence. The only substance in the complaint to Ms McKay was that that she was “asleep and she woke up and Dudley was on top of her.  And she said, “Oi.  Oi,” or something.  And he was like, “I’m sorry.  I’ll stop.””^[88]  
105. [105]
     In this case, the preliminary compliant evidence is vague and lacks details.  As such, it is difficult to make any meaningful assessment or comparison between it and the complainant’s testimony.  I do not consider that the inconsistencies in the previous accounts the complainant has given others is a matter that weighs adversely on the complainant’s credit.  The differences are so minimal that they may well be explained by the time that has elapsed between when the complainant spoke to each of Ms Williamson and Ms McKay and the time when they gave evidence.  In my view, their evidence neither bolsters the credibility of the complainant due to consistency nor detracts from her credibility or reliability because of inconsistency. 

Pretext call

106. [106]
     Exhibit 3 is the recording of the conversation between the complainant and the defendant made on 15 November 2018.  The prosecution relies on the recording as containing relevant admissions made by the defendant to the complainant about the events in her home on the evening that the offences were alleged to occur. 
107. [107]
     First, the prosecution submits that the defendant admitted that he broke more than one window.  I accept that he made an admission to that effect, but I do not regard it as an admission that he broke the louvres in order to gain entry to the complainant’s home.  To the contrary, the statements made by the defendant in the pre-text call are consistent with his evidence about which louvres his broke and the circumstances in which he broke them.  I form that view having regard to the initial exchange, as well as an exchange much later in the conversation when the complainant said if he was genuinely concerned about her, he could have called the police instead of smashing all of her windows and leaving the glass everywhere.  The defendant responded that he did not deliberately break the windows.  One of the windows cracked when he was opening it to sing out to her and he broke the one on the other side when he climbed in through the window because he hit it with his head.  He apologised for not cleaning the glass up.
108. [108]
     Second, the prosecution submits that the defendant admitted that he climbed into the complainant’s home.^[89]  I accept this is so.  This does go to proof of the element of entry.  That element is not in issue in this case.
109. [109]
     Third, the prosecution submits that it was clear that the defendant knew the complainant was talking about more than just a broken window and stolen drugs.  Early in the conversation the complainant asked, “What the fuck did you do in my bed?” and accused the defendant of rape.  The complainant said to the defendant “You didn’t stick your dick in me? So, it’s not fucking rape.”  There is a response shortly after where the defendant says, “I didn’t deliberately do anything to hurt you, okay?” The prosecution submits that the context of that portion of the discussion cannot relate to anything other than her allegation of rape. 
110. [110]
     The prosecution further submits that the exchange 5 minutes and 13 seconds into exhibit 3 sits comfortably with him accepting sexual contact but trying to convince the complainant she was awake at the time.  That exchange is transcribed as follows:

“EDWARDS: I woke up with you behind me.

WILLIAMS: I didn’t do, I didn’t anything, I didn’t do anything  before we did, you, you, you, like you’re, like you bent over and then we did something, like I didn’t do anything before that.

EDWARDS: But Dudley, I wasn’t awake. You know me, okay? I was not awake and I don’t do things like that. You know this. Like why would--

WILLIAMS: Oh.

EDWARDS: You were so worried--

WILLIAMS: [INDISTINCT].

EDWARDS: About me that you’ve smashed the windows and climbed into my fucking house. But then you get into--

WILLIAMS: I was banging--

EDWARDS: You get into my bed--

WILLIAMS: For ages.”

111. [111]
     The prosecution also relies on another exchange where it says the defendant was accepting sexual contact, but suggesting she was awake.^[90]  His explanation that this was simply her being annoyed he had woken her, as he said in evidence, is implausible and does not fit with the conversation that preceded it. 
112. [112]
     Finally, in terms of the allegation of sexual contact, the prosecution notes that from 12.17 minutes in Exhibit 3 the complainant states that the defendant “took advantage of me in my house”.  The prosecution says that more than once the complainant had said the defendant raped her, or that she woke up to him having sex with her.  The defendant responds that she wanted him, before later at 13.20 minutes saying, “I thought, like you wanted”.  At 15.04 minutes, the complainant again confirms she never wanted to have sex with the defendant, and he tells her he “probably just thought because she had boyfriends”.
113. [113]
     With respect to the potential defence of mistake of fact, the prosecution notes that, in the pre-text call, more than once the complainant says to the defendant that when he has “hit her up” previously, she has said no.  The defendant does not correct that position and appears to accept it as true.^[91]
114. [114]
     As I have already observed in paragraphs [39] and [71] above, although I was provided with a transcript of the conversation, I do not regard it as the evidence.  The evidence is what I heard on the recording.  The distinction is particularly important in this case as the transcript does not give a true impression of the conversation. 
115. [115]
     When I listened to the transcript, I noticed that the defendant’s attempts to speak were regularly interrupted by the complainant, who spoke with a raised voice and often spoke over the top of the defendant.  I do not say that to criticise the complainant.  One can well appreciate that her emotions may have been in a heightened state given the task she was undertaking.  However, there was little chance for the defendant to give his version.  When I listen to the whole conversation, I am not confident that the defendant makes the admissions that the prosecution asserts that he makes.  Rather, it seems to me that his statements are consistent with the version of events he gave in his evidence-in-chief.
116. [116]
     Further, the defendant stumbles over his words, slurs his words and often repeats himself.  This is consistent with his evidence that he had consumed an extensive quantity of drugs around this time and was “wired”.^[92]  It seems to me that he may have been affected by drugs.  This causes me to treat his responses with a degree of caution, particularly where they were statements that are imprecise or capable of more than one meaning, or when they were made at a time when the complainant was speaking over the top of the defendant.
117. [117]
     For the reasons provided above, I am not persuaded that the pretext call contains admissions against interest of relevance to the issues in this trial. 

The conversation with Daniel Williams

118. [118]
     During cross-examination, the complainant gave evidence that she met Daniel Williams in a park in January 2019.  She said that Daniel suggested she should drop the charges because he wanted his brother to come home.  She denied ever saying to Daniel that she lied about the rape.  When confronted with Daniel’s version, the complainant appeared defensive.  She wanted to know whether Daniel would be giving that version under oath.^[93]
119. [119]
     Daniel Williams gave evidence for the defence.  He said that he attended the park without knowing what the complainant wanted to say to him.  He said that he wished he had recorded the conversation but at the time he had no idea what the complainant wanted to speak to him about. 
120. [120]
     The prosecution submits that strangely, during his evidence in chief, Daniel constantly volunteered that he did nothing to threaten or intimidate the complainant.  It submits that Daniel’s suggestion that he would not do anything to jeopardise his reputation is inconsistent with his history for assault, at that stage only three years earlier.  It also noted that Daniel did not think to record the conversation on his phone, nor go across and report what the complainant had said to the police where his mother worked.  It submits that Daniel was not an impressive witness and his suggestion that the complainant had said she had lied ought to be rejected. 
121. [121]
     Mr Daniel Williams struck me as an honest and genuine witness.  Mr Daniel Williams’ expression in court, when he heard what the complainant said, impressed me as one of genuine surprise.  Even though he was quick to volunteer that he did not threaten or intimidate the complainant, his evidence in this regard did not strike me as defensive, rather as informed by nerves.  He also seemed genuine in his concern for his own reputation.  He has a full-time job, a young family and a wife.  I do not consider Daniel’s criminal history to be inconsistent with his concern not to jeopardise those matters.  When confronted with his limited history, he was frank about it and explained how the assault in question transpired.  The circumstances were very different.  Accepting Daniel has a criminal history, I nevertheless regard his evidence as truthful and accurate.
122. [122]
     The evidence of Daniel Williams causes me to doubt the truthfulness of the complainant’s account of their encounter.  By itself, it does not persuade me that the balance of the complainant’s testimony is not truthful and reliable.  Her evidence on this issue appeared more defensive and contrived than that with respect to other issues.  It is still necessary for me to consider the complainant’s reliability in more detail, which I do below.

Has the prosecution proved its case on count 1 beyond reasonable doubt?

123. [123]
     As identified by both parties, the prosecution case for count 1, burglary, by break, in the night, depends on me drawing an inference that the defendant entered the complainant’s home with the intention of committing an indictable offence.
124. [124]
     The prosecution submits that the most likely inference is that the defendant entered the complainant’s house with the intent to steal drugs.  The other inference that the prosecution submits is reasonably open is that the defendant intended to sexually assault or rape the complainant.  The prosecution relies on its case with respect to the attempt rape in that respect.  I am not persuaded to draw that inference as I am not persuaded of the prosecution case on attempted rape for the reasons set out below.
125. [125]
     With respect to the inference that the defendant entered with an intent to steal drugs, the prosecution relies on the defendant’s evidence that he had a bad habit.  He had used drugs on Sunday 4 November 2018, the morning of Monday 4 November 2018 before going to a medical appointment with his mother and when he returned from that medical appointment.  The prosecution submits that this conduct is consistent with the defendant going to the complainant’s home to take drugs from her.
126. [126]
     The defendant’s evidence on this issue was clear, consistent and unwavering.  The defendant was frank in his admission that at the relevant time he was using drugs regularly, including ice and speed, but he was equally clear that, whatever his faults, he was not a thief.  His evidence in that regard struck me as genuine. 
127. [127]
     The defendant’s evidence about his reason for entering the complainant’s home is consistent with Ms McKay’s evidence of the conversation between them soon after the event, on the morning of 6 November 2018.  Her evidence was as follows:^[94]

“All right.  Can you tell us about your conversation with Dudley?‑‑‑I asked him what was going on and he said, “I didn’t steal anything from her.”  And we spoke about that.  And that was pretty much it.

Did you ask anything else of him?‑‑‑No.

Nothing at all?‑‑‑I don’t think so.

All right.  So was your conversation with Dudley limited to, “What’s going on?”  And he said, “I didn’t steal anything”?‑‑‑I didn’t ask her whether he raped her or anything like that.

Did you ask him about whether he was at her house?‑‑‑Yeah.  Yeah.  And he said that he had been there earlier that day as well and that he was worried about her so he went there to check on her.

All right.  Did he say anything about how he went about trying to check on her?‑‑‑He said that he tried calling her and he just wasn’t answering the phone, so that made him more worried about her.

All right.  Did he say anything about how long he tried to get into the house or call her for?‑‑‑Forty-five minutes or something.  And then I said to him, “So, what, that makes it okay to break in?”  And he said he only did it because he was so worried about her.

Right.  Anything else you remember about that conversation with Dudley that he said or you said?‑‑‑Not really.”

128. [128]
     During cross-examination, Ms McKay also gave the following evidence:

“Yep.  And that’s when you went up to Dudley and asked him what had happened?‑‑‑Yep.

And he told you that he didn’t steal anything?‑‑‑Yep.

And you asked him what he was doing there anyway?‑‑‑Yep.

And that’s when he told you that he had gone around there to check on her?‑‑‑Yeah.

Now, you said that he – your recollection was that he told you that he’d been trying to message her and ring her?‑‑‑Mmm.

Could you be mistaken about that?‑‑‑I could be.

Could he have told you that he was, in fact, trying to bang on the windows and the doors?‑‑‑He could have, yeah.

Okay.  But he – in any event, he told you he’d tried to rouse her ‑ ‑ ‑?‑‑‑Yeah.

‑ ‑ ‑ for about 45 minutes?‑‑‑Yep.

And he wasn’t successful?‑‑‑Yep.

And that’s when he broke into the house, effectively?‑‑‑Yep.

Okay.  Now, you said that Rachel showed you some broken louvres in the house?‑‑‑Mmm.

Do you remember seeing whether any of those louvres had already been broken?‑‑‑I know that there were already louvres broken in the – out on the veranda, there, where it was;  but – yeah.  So ‑ ‑ ‑

And I might be stretching your memory;  but are you able to say, if you looked at a photograph, which ones were broken, or you just remember ‑ ‑ ‑?‑‑‑No.”

129. [129]
     Ms McKay was not challenged about the reliability of her evidence about the conversation with the defendant, other than in relation to the evidence that the defendant had said he tried to call the complainant.  I accept her evidence about what the defendant said to her.
130. [130]
     The defendant’s evidence is also consistent with the evidence of the complainant that she had had a fight with her ex-partner and was upset.  She agreed that the defendant came around to check on her and see if she was okay earlier in the day.^[95] 
131. [131]
     I accept the defendant’s evidence about the reason he entered the complainant’s home.  Accordingly, the prosecution has not proven beyond reasonable doubt that at the time the defendant entered the complainant’s house, he intended to commit an indictable offence.  It follows that the defendant should be found not guilty of count 1.

Has the prosecution proved its case on count 2 beyond reasonable doubt?

132. [132]
     Both parties identified that the prosecution case for count 2, attempted rape, depends on me accepting the evidence of the complainant to be credible and reliable.  It is common ground that there is no other evidence that is capable of proving count 2.

Cross-examination as to complainant’s motive to lie

133. [133]
     In cross-examination, the complainant was asked whether she made up the attempted rape because she was angry at the defendant as she thought he had stolen her drugs.^[96] 
134. [134]
     The existence of a motive to lie can be an important factual issue.  If accepted, it can tend to explain something that is otherwise odd or unlikely.  However, if I reject the motive to lie put forward on behalf of the defence, it does not necessarily follow that the complainant is telling the truth.  It is for the prosecution to satisfy me that the complainant is telling the truth.
135. [135]
     The prosecution submits that explanation does not fit with the circumstances in which the complaint came out.  She complained to Ms McKay that morning.  She complained to Ms Williamson, who made arrangements for her to speak to Detective Sergeant Hauff.  She told Detective Sergeant Hauff she had been raped. She considered whether to provide a statement after Detective Sergeant Hauff outlined her options.  The complainant has then maintained that complaint for almost two years and subjected herself to cross-examination.  She has maintained the truth of that complaint.
136. [136]
     I reject the motive for to lie put forward by the defence.  It does not fit with the complainant maintaining the complaint for almost two years and subjecting herself to cross-examination. 
137. [137]
     It is not unusual for a victim of a sexual offence not to make an immediate complainant.  It seems to me that the complainant’s initial hesitation in making a complaint may be explained by her relationship with the defendant, and her lack of clarity around the events of the evening, rather than being indicative of her forming an intention to lie.  I address the evidence that goes to the complainant’s lack of clarity around the events of the evening later in these reasons. 
138. [138]
     As for the nature of the relationship, the complainant had known him for 15 years, cared about him like a brother and he had not, and was not, being otherwise violent or threatening towards her.  She was not unfamiliar with him being affected by drugs, or what drugs might to do a person.  During her evidence-in-chief, the complainant gave evidence that she did not go to the police at the time because:

“Didn’t really remember, like, and I just – I’ve known Dudley a long time and he was a really good friend.  He was almost like a brother to me, and I just really didn’t think – I didn’t know what to call it.  I didn’t know what it was and – yeah.  I didn’t want to admit what had happened, I guess”.^[97]

139. [139]
     She gave similar evidence during cross-examination, when the following exchange occurred:^[98]

“You didn’t think to call anyone for help or message anyone about what had just happened?‑‑‑Dudley was a good friend of mine for a long time.  And that’s why I said to you that I didn’t go to the police straight away;  because I couldn’t work out exactly what had happened and why it had happened, and I thought for a long time that maybe I had, in my sleep, given him the idea that he was okay;  even though he shouldn’t have been in my house or in my bed.  So, yeah;  it took me a little while to process what had happened, and the last thing I wanted to do was call the police and tell them that someone I loved as a brother had just raped me or tried to rape me.

So I think you might have – so you were worried that you might have – sorry, I’m just trying to get your answer clear.  So ‑ ‑ ‑?‑‑‑I don’t know ‑ ‑ ‑

‑ ‑ ‑ you’re worried that you might have done or said something in your sleep ‑ ‑ ‑?‑‑‑I don’t know.”

140. [140]
     Although I reject the motive to lie put forward by the defence, it remains for me to assess whether I consider the complainant’s account truthful and reliable. 

Credibility of the complainant’s evidence

141. [141]
     The prosecution submits that the complainant was honest, even to her own detriment.  It submits she openly spoke about her drug use. 
142. [142]
     The defence submits there are a number of issues with the complainant’s credibility.  It points to a number of lies told by the complainant. 

Honesty about drug use and personal and financial circumstances

143. [143]
     I accept that the complainant was honest about her drug use during her evidence.  She gave evidence that she started using “ice” from August 2018, but before that had used drugs recreationally.  She has used cannabis for most of her life.^[99]  She was extensively cross-examined about these matters and appeared to answer honestly.  She gave evidence that she not used methylamphetamine on the day of the offending (5 November 2018), but had the day before that (4 November 2018).  She was using about a point every day or every second day at that stage.^[100] 
144. [144]
     The complainant accepted that she continued to use drugs after the offending.  She volunteered, “It actually got quite bad.”^[101]  She was asked about charges, for which she has not yet been convicted, and the complainant was honest about those matters and what had occurred.^[102]  She did not try to hide or minimise what she had done.  She was frank and honest about those matters.
145. [145]
     The complainant was also candid in cross-examination that she was selling her motorbike because she had no money.  She had told the defendant she was concerned about money, that her ex-partner was not contributing to their child and he had assaulted her.  She was not working because she hurt her back.  She accepted she might have discussed purchasing more drugs and selling them to assist her financial situation.^[103]  She accepted the defendant would have been worried about her.  These were all features that she readily accepted. 

Lies told by the complainant

146. [146]
     Although the complainant demonstrated a degree of honesty about her general drug use, she also accepted that she has told lies about the events surrounding the offending.
147. [147]
     The complainant gave her initial statement to police on 14 November 2018.  In her written statement, the complainant said that the defendant stole $40 from her wallet.
148. [148]
     After providing her statement to police and before trial, the prosecution spoke to the complainant on three separate occasions.  There were conferences held with the complainant in February 2020, April 2020 and immediately before the trial.  It was only in the conference immediately before the trial that the defendant disclosed, for the first time, that her statement that the defendant stole $40 from her wallet was not true.
149. [149]
     When the complainant was cross-examined about the lie, she provided a number of explanations in relation to it.  First, she said that she did not want to mention the drugs in her first conversation with Detective Sergeant Hauff because she did not want to mention anything about ice.  Then the complainant suggested that it was not a lie to the investigating police officer, rather the two of them just decided to say it was money in her statement. The complainant then tried to back away from such a serious allegation against a police officer.  Her evidence was as follows:^[104]

“And you told police – what you initially told Ms Hoff, that police officer, was that               Dudley Williams  had smashed the louvres to break in and stole $40 from your               wallet?‑‑‑Yep.

Yep?  That wasn’t true, was it?‑‑‑No.  So I didn’t want to admit to the police officer at the time that it was ice.

And then ‑ ‑ ‑?‑‑‑But she did know.  She was aware that that’s what it was and we just put that in the statement.

Sorry.  What was that?‑‑‑She was aware that it was drug related.

What, Julie Hoff?‑‑‑Yes.

Was aware that it wasn’t $40;  it was methylamphetamine?‑‑‑It was $40 worth of drugs.

So you told that – you’re saying you told that to the police officer?‑‑‑I didn’t say that exactly, and that’s why we left it at $40 cash, because it wasn’t about that at the time.

Well, I want to be very clear on this.  What did you tell the police officer about what was stolen?‑‑‑I was there was $40.

Forty dollars of cash?‑‑‑Yes.

So you lied to her about that?‑‑‑I did, yes.

Okay.  So you never told her it was $40 worth of methylamphetamine.  Is that what you’re saying?‑‑‑No.”

150. [150]
     The complainant was seemingly willing to lie to police in her statement about money being stolen from her.  She was not deterred by the Justices Act acknowledgement she was required to sign at the end of her statement: “I make this statement knowing that if it were admitted as evidence, I might be liable to prosecution for stating anything in it that I know is false.”^[105]
151. [151]
     The defence submits that this is not the only occasion that the complainant has lied to police and authorities in the past.  The complainant has been questioned by police on multiple previous occasions about drug related and suspicious offending. 
152. [152]
     On one of those occasions, police found the complainant parked in darkness on a remote road in close proximity to where an associate of hers was located after committing an evade police offence. The complainant told police at the time that it was just a coincidence that she was in close proximity to this associate and that she had simply run out of fuel.  The complainant maintained this version in her evidence at trial.^[106]  The defence submits that the Court should disregard her evidence on this aspect and conclude it is a lie. 
153. [153]
     On another occasion, police found messages on the complainant’s phone where she spoke to an associate about travelling to Toowoomba and providing him with “3”.  When asked about these messages, the complainant told police that she was not referring to drugs but rather was travelling to Toowoomba to buy a special type of alcohol which was only available in Toowoomba and the reference to “3” was a request for three bottles of this special alcohol.  During cross-examination, she accepted that on this occasion she lied to police.^[107]
154. [154]
     On another occasion, police again found messages on the complainant’s phone referring to supplying “half a G” and “bales of hall”.  The complainant told police that the messages related to actual bales of farm hay.  She told police that hay was hard to find, and she was providing actual bales of harm hay.  This was another lie to police to which the complainant admitted.^[108]
155. [155]
     The defence submits these lies are significant because it reflects very poorly on the complainant’s character.  It gives the Court an insight into what type of person the complainant is and whether she is a genuine and truthful witness, or rather, as in this case, a person who is prepared and willing to lie when it suits her. 

My finding regarding the complainant’s honesty

156. [156]
     The evidence of the complainant about her drug use in a general sense and about her personal and financial difficulties demonstrates a preparedness to speak truthfully about those matters. 
157. [157]
     I also accept the prosecution’s submission that there is a reasonable explanation as to why, in the meeting on 12 November 2018, the complainant lied to the police officer.  At that time, she had the care of a young child and was trying to maintain a house over her head.  However, that does not provide a reasonable explanation as to why the complainant maintained the lie. 
158. [158]
     As for the lies told to the police, I am not persuaded that the complainant lied to police about the occasion she was found parked in darkness on a remote road in close proximity to where an associate of hers was located after committing an evade police offence, particularly given her frankness about her other lies to police. 
159. [159]
     The lies to police admitted by the complainant do not cause me particular concern about her honesty with respect to the relevant offence.  The same is not true of her lies about the $40 allegedly stolen. 
160. [160]
     The complainant had plenty of opportunities to retract her lie about the $40 and did not.  Further, even though it was short-lived, the complainant’s suggestion during her oral testimony that the lie was put in her written statement with the knowledge and acceptance of the police officer causes me grave concerns about the honesty of her testimony as it relates to the offending.
161. [161]
     My concerns in this regard are heightened by the appearance of collusion between the complainant and Ms McKay about their conversations on 6 November 2018.  The complainant denied that she had told Ms McKay what to put in her statement.  In fact, the complainant’s evidence was that Ms McKay tried to tell her what to say in her statement.  The evidence of Ms McKay was that the complainant sent a copy of her statement to her before she went into the police station to provide her own statement.  I accept Ms McKay’s evidence.  It accords with the dates the statements were provided to police. The complainant gave her statement to police on 14 November 2018.  Ms McKay gave her statement the following day on 15 November 2018.  During her evidence in the trial, Ms McKay accepted that her conversation with the complainant on 6 November 2018 was actually about apparently stolen drugs, not stolen money.

Reliability of the complainant’s evidence

162. [162]
     There are inconsistencies in the complainant’s evidence about other matters, and between her evidence and other evidence that I accept, which cause me doubt about her reliability.  I explain my findings about this further below.
163. [163]
     I accept the complainant’s evidence that there was a visit by the defendant with Jai on Sunday 4 November 2018 and that she had told the defendant about her fight with her ex-boyfriend about child support and about her concerns in relation to money.  These were matters about which the complainant appeared certain.  Her evidence on those issues is also supported by the evidence of the defendant. 
164. [164]
     I do not accept those parts of the complainant’s evidence about whether Paul was present during the visit.  She exhibited considerable uncertainty in her evidence-in-chief and in cross-examination about the events of that day.  She appeared to confuse them with events of the previous day.  The complainant’s acceptance that she had told the defendant about her relationship breakup is inconsistent with her denial that she had broken up with Paul prior to the visit from the defendant.  Further, while I could only see the complainant’s face on the screen, when being questioned above these events she appeared to be looking at something near her when trying to answer the questions about this visit.  This became so obvious that Ms Kelso ultimately asked her whether she had something in the remote room with her.  Her response is set out in paragraph [75] above. 
165. [165]
     Before going to bed the night before the incident occurred, the complainant had taken cannabis and prescription medication that were muscle relaxants.  She gave evidence in her evidence-in-chief and in cross-examination that the mix of drugs did not have any affect or impact on her at all.  She said the cannabis just helps her relax and as she has used it all her life, since she was about 13, the effect on her is not as dramatic as it might be on others.  She said that the combined effect of the drugs did not make her drowsy.^[109]
166. [166]
     This evidence by the complainant is inconsistent with what the complainant accepted she had said in conference with the prosecution in February 2020.  At that time, she said that the prescription medication made her drowsy.^[110]  The complainant gave no explanation for the inconsistency in her statements. 
167. [167]
     It seems unlikely to me that the mixing of a combination of prescription medication being muscle relaxants and two to three cones of cannabis would have no effect on the complainant.  I consider her statement to the prosecution in February 2020 more plausible.  That the medication may have had an impact on the complainant that night is also consistent with the lack of clarity in the complainant’s recollection of what happened on the night in question. 
168. [168]
     In her evidence-in-chief, the complainant said, in relation to her actions the next day, “I just sort of started to think about what had happened.  And, you know, I just – I didn’t know what had happened.  I was just so confused”.^[111]
169. [169]
     The prosecution submits that the complainant’s evidence that she was confused about what had happened the next morning is clearly a reference to her giving the defendant the benefit of the doubt.  She explained “its confusing, yes. Because I didn’t go to sleep with somebody in my bed. And I didn’t want to have sex with Dudley.”  The evidence fits with her considering whether she had done something to contribute to what happened, in her sleep, thinking it was her partner. 
170. [170]
     There is some force to the prosecution submissions.  However, it does not persuade me that the complainant’s evidence about the offending is reliable due to other aspects of that evidence that demonstrated a lack of clarity and consistency in the complainant’s accounts.
171. [171]
     The complainant’s lack of clarity about the night in question is highlighted by that part of her evidence, set out in paragraph [75] above, where the complainant provided an explanation as to why she was reading her from her statement that she had taken in with her.  She said, “I’m trying not to get it wrong.”^[112]  Despite being asked to set it aside, there was another occasion during the complainant’s evidence where it looked as though she was looking at her statement.  At that time, the prosecutor paused her questioning while her instructing solicitor went into the room and took the statement from the complainant.^[113]
172. [172]
     Prior to giving evidence at trial, the complainant had also made a number of other statements about her poor memory of events on the night.  During the pre-text phone call, the complainant made comments such as, “I don’t even know what the hell happened but I feel violated.”^[114]  When asked in cross-examination about it she said that she did not know what happened because she did not know how the defendant got in her house and her bed and she knew she would not have consented to having him in her bed.  She also said, “It was blurry because id smoked a lot of rock after that, yes.”^[115] 
173. [173]
     The complainant also gave differing accounts as to whether there was penetration or not. 
174. [174]
     In April 2020, the prosecution conducted a conference with the complainant.  The complainant specifically asked if the charges could be changed from attempted rape to rape.  Her words were, “The rape wasn’t attempted. There was penetration.”  The complainant was again asked whether she was clear on penetration and she confirmed there was penetration.^[116]
175. [175]
     During the trial, the complainant said, “I’m not sure whether he got into me or not”.^[117]  Her account then changed a number of times in the exchanges that immediately followed.  The exchanges were as follows:^[118]

“In fact, your evidence today was that you now remember that his penis was soft?‑‑‑That’s when he was getting angry, yes.

And that’s the first – you haven’t mentioned that in your police statement either, have you?‑‑‑I’m not sure.

Well, would you like to look at your statement so you can answer the question?‑‑‑No, I’m fine.  You can say what you want.  That’s okay.

So you accept that that’s not in your statement?‑‑‑Sure.

Yes?  And when someone from the prosecutor’s office asked you about penetration back in April of this year, again, you didn’t mention that his penis was soft and he couldn’t get it in, did you?‑‑‑No, because I was still high on ice at the time because I couldn’t think about it.

Well, your evidence back then was that you were clear on penetration and you wanted the charges changed back to rape;  correct?‑‑‑Yeah.  Yeah.  Because at no time did I ever invite him into my house and into my bed and to have sex with me.  So I’m sorry if he did or didn’t get it in there or not.

Was it the case, Ms Edwards, that you simply don’t really know what happened at all?‑‑‑I do know what happened.  I’m just not exactly clear as to whether he actually had sex with me or just tried to.

Then why – if that’s the case, why did you tell the prosecutor in April that you were clear on penetration back then?  Why did you say that if you weren’t clear at all?‑‑‑Because that’s what I remember.

Okay.  So you do remember penetration now, is that what you’re saying?‑‑‑I remember him forcing himself into me.”

176. [176]
     I do not accept the prosecution’s submission that the complainant was consistently clear that she knew what had happened from the point she woke and that she has always remained clear that she woke to him forcing his penis into her vagina.  As is highlighted by the matters above, the complainant’s evidence was confusing, it waivered, and it was inconsistent.  It is unclear to me what the situation was exactly.  This is a matter that causes me grave concerns about the reliability of the evidence of the complainant about the alleged offending. 
177. [177]
     The complainant was an unreliable historian.  The inconsistencies in the complainant’s evidence may well be explained by her use of prescription drugs and illicit substances on the evening in question, as well as her consumption of a significant quantity of drugs in the days that followed.  However, they are such that I am left with real doubt about the reliability of the complainant’s evidence about the offending. 

The defendant’s credibility and reliability

178. [178]
     It is not necessary for me to consider the defendant’s evidence in detail, given I am not persuaded that the complainant’s evidence with respect to count 1 is reliable.  I only make the following brief observations.
179. [179]
     The defendant did not have an entirely reliable memory about some issues, such as the time of his return from his doctor’s appointment in Brisbane.  The evidence of the defendant’s mother about that strikes me as more reliable given the time of return was a matter of significance for her because of her commitments with her foster children.  Nevertheless, the differences in account about the time of the return are unremarkable given the time that has passed since those events and the lack of significance of that matter to the defendant generally. 
180. [180]
     I do not accept the prosecution’s submission that the defendant’s evidence was unreliably affected by his ice habit.  I do not accept that his evidence demonstrated that he had been on a bender prior to the time in question.  I accept his evidence about the level of his intoxication at the time, and generally about the effect the drugs had on him at that time.  His evidence in that respect struck me as incredibly frank.
181. [181]
     Overall, the defendant’s account about his concern for the complainant, the events surrounding his entry into the complainant’s home and his intentions in that regard, and his attempts to wake the complainant before entering the bedroom struck me as a genuine and reliable account.  I do not accept the prosecution’s submissions that his account in that respect lacked plausibility.
182. [182]
     There are some aspects of the defendant’s evidence that struck me as implausible, such as his evidence about prior sexual contact with the complainant.  His comment in the pretext call that he probably just thought because she had boyfriends that she did not want to have sex with him also causes me pause.  However, about that matter, I note the observations that I made in paragraphs [115] and [116] above.  In the circumstances, the defendant’s evidence overall leaves me in a reasonable state of doubt as to the true position.  This is because his evidence about his conduct after entering the complainant’s bedroom was generally consistent throughout his evidence-in-chief and his cross-examination.  It was also, in general, consistent with statements made by him in the pretext call. 

Conclusion regarding count 2

183. [183]
     On the basis of all of the evidence, I am not satisfied beyond reasonable doubt that the attempted penetration occurred as alleged by the complainant.  It follows the defendant should be found not guilty of count 2.

Verdicts

184. [184]
     In relation to count 1, a charge of burglary, by break, in the night, I find Dudley Chantler Williams not guilty.
185. [185]
     In relation to the alternative count 1, a charge of burglary, in the night, I find Dudley Chantler Williams not guilty.
186. [186]
     In relation to count 2, a charge of attempted rape, I find Dudley Chantler Williams not guilty.

Order

187. [187]
     I make the following order:

Dudley Chantler Williams is formally discharged in respect of indictment number DIS 5693/20(9)