R v Stansfield[2020] QDC 296

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant is charged with the following offences on indictment:

Count 1: That on or about the 23^rd day of December 2018 at Logan Reserve in the State of Queensland he raped [KUG].

Count 2: That on or about the 23^rd day of December 2018 at Logan Reserve in the State of Queensland the defendant unlawfully and indecently assaulted KUG.

Count 3: That on or about the 23^rd day of December 2018 at Logan Reserve in the State of Queensland, the defendant raped KUG.

Count 4: That on or about the 23^rd day of December 2018 at Logan Reserve in the State of Queensland, the defendant raped KUG.

Count 5: That on or about the 23^rd day of December 2018 at Logan Reserve in the State of Queensland, the defendant attempted to rape KUG.

Count 6: That on or about the 23^rd day of December 2018 at Logan Reserve in the State of Queensland, the defendant raped KUG.

Count 7: That on the 23^rd day of December 2018 at Logan Reserve in the State of Queensland, the defendant raped KUG.

2. [2]
   The defendant pleaded not guilty to each of these charges.  An order had previously been made for the trial to proceed before a judge without a jury.

Particulars of the charges

3. [3]
   Written particulars were provided and were marked for identification “A”.  They were brief, and are as follows:

Count 1: The defendant penetrated the complainant’s vagina with his finger and/or fingers.

Count 2: The defendant:

1. (a)
   kissed the complainant on:

   1. Her lips; and/or
   2. Her neck; and/or
   3. Her breast; and/or breasts; and/or
2. (b)
   touched the complainant’s breast and/or breasts.

Count 3: The defendant penetrated the complainant’s vagina with his penis.

Count 4: The defendant penetrated the complainant’s vagina with his tongue.

Count 5: The defendant attempted to penetrate the complainant’s anus with his penis.

Count 6: The defendant penetrated the complainant’s anus with his finger and/or fingers.

Count 7: The defendant penetrated the complainant’s vagina with his finger and/or fingers.

Facts not in dispute

4. [4]
   There is no dispute in this case that the defendant is the uncle of the complainant; the defendant is the half-brother of the complainant’s mother.
5. [5]
   As at 22 December 2018, the complainant lived in a caravan on property at Logan Reserve.  A friend, Adam Hilliard, lived nearby in another caravan.
6. [6]
   The complainant had been in a relationship of sorts with a 23 year old man, Kearin Lees.  At that time the complainant worked as a cleaner for a cleaning business operated by the parents Felicity McWaters.
7. [7]
   The defendant travelled from Western Australia to Queensland some days before 22 December 2018.  Arrangements were made for him to meet up with the complainant on 22 December 2018.  The defendant, the complainant and Mr Lees travelled to the Wet n Wild Water Park on the Gold Coast.  They were only there for about an hour or so due to stormy weather; the park was closed as a result.
8. [8]
   The complainant, the defendant and Mr Lees went to the hotel called “Fitzys” at Waterford where both the complainant and the defendant consumed a large quantity of liquor.
9. [9]
   Later that evening the complainant and the defendant went to the home of a friend of Felicity McWaters where more alcohol was consumed.  At various points in the evening cannabis was also consumed by both the defendant and the complainant.
10. [10]
    The defendant spent the night in the complainant’s caravan, and slept with her in her bed.

Evidence of the complainant

11. [11]
    The complainant gave evidence that she was 37 years old in December 2018.  She gave evidence of the caravan that she stayed in, and the caravan of Mr Hilliard.  She gave evidence that she received a communication from the defendant in March 2018, and from that time on she had been in regular contact with him.  She had not seen him before December 2018.
12. [12]
    She considered that she was at Fitzys for about three hours, or maybe longer.  She commenced drinking rum and cokes, thinking she had five or six, “may be more”.^[1]  She became intoxicated and vomited in the toilets, because she had “reached my limit”.  She recalled that they had dinner there.
13. [13]
    After leaving Fitzys Kearin Lees was dropped home.  She and the defendant went back to her caravan at Logan Reserve.  Before leaving Fitzys the defendant bought a bottle of Maker’s Mark bourbon.  At the caravan the defendant poured her a drink of bourbon and coke.  She recalled that the bourbon and coke was poured into a short glass which came with the bottle of bourbon.  The complainant recalled that the drink was “more bourbon than coke”.^[2]  After drinking the bourbon she felt more intoxicated.
14. [14]
    The complainant then telephoned Felicity McWaters and asked if she and the defendant could come over.  She was also communicating with Felicity McWaters via Facebook Messenger.  Exhibit 1 is a copy of a Facebook exchange between the two of them on the evening of 22 December 2018.
15. [15]
    Felicity McWaters was actually at the house of a friend, James, who lived in Bethania.  The complainant drove the defendant’s car to that address.  When they arrived the people there were playing cards.  The complainant and the defendant consumed more liquor; there was an argument with her and some of the people at this house over her “leading on” Mr Lees.  The complainant said:

“I drank more and the more I fought with people the more I drank and then I decided I wanted to go home.  I didn’t want to fight with people anymore.  I just wanted to go home.”^[3]

16. [16]
    The complainant and the defendant left James’ house and went back to her caravan.  On Facebook Messenger the complainant received a message from Felicity McWaters asking if she was okay.  The complainant replied “Yeah, Bub.  Just facing facts”.^[4]
17. [17]
    The complainant could not recall what she was drinking at James’ house.  She said she was drunk, but was aware of her surroundings and still able to make decisions.  The complainant said that she was not a particularly heavy drinker, and that she had only been that intoxicated once or twice, 10 or 20 years ago.^[5]
18. [18]
    After they got back to the caravan, the complainant said that she and the defendant were talking and drinking a bit more.  There was a discussion about her childhood and her mother.  The complainant said that she realised she was too drunk and too emotional and decided she wanted to go to bed.  She recalled that there was a vague discussion about the defendant sleeping on the couch.  The defendant made a joke about it being too small.  The complainant offered the defendant her bed, and she was going to go and wake up Mr Hilliard and sleep in his caravan.  The defendant told her not to be silly, that it was too late to be waking people up and as they were family they could share a bed.^[6]
19. [19]
    The complainant described the bed and the caravan as a queen bed.  Once they got into bed, she recalled the defendant was holding her as they talked about her mother.  The defendant kept pulling her closer to him.  The defendant said that everything her mother had put her through wasn’t fair, and that he wanted to protect her and look after her.
20. [20]
    The complainant said that the defendant “Started putting his hands between my legs and I pulled away.  He told me I was being silly, he wasn’t doing anything.  He just wanted to hold me.  And I guess I kind of let my guard down.  I – I thought he’s my uncle, he wouldn’t hurt me.  So I just let him hold me and then he started moving his hands inside me.”^[7]  The complainant then said that the defendant “Started his finger inside me … inside my vagina.  I tried to push him out.  I grabbed his wrist, I tried to force him out.  But he just kept on telling me to shush.  I tried to tell him to stop and he wouldn’t listen.  … I said, ‘stop, you’re my uncle, this can’t happen.’  I was crying.  He pulled my underwear and my shorts off and he tried to insert his penis inside me.  He couldn’t get inside.”
21. [21]
    The complainant said after that the defendant was “kissing me everywhere”.  He was touching her breasts and kissing them, while telling her she was beautiful.  He still had a finger inside her vagina at this time.  The defendant tried to kiss her on her mouth; she closed her mouth so he couldn’t kiss her.  She said that she was pushing him, and tried to wiggle away.  She was trying to arch herself so she could get out from under him.^[8]
22. [22]
    The following exchange took place:

“Q And then you said that he tried to put his penis in your vagina?

A Yes.

Q Did he successfully put his penis in your vagina?

A I can’t remember.

Q All right.  Do you remember whether he had an erection or not?

A He couldn’t keep it hard.  He kept slapping me with it.

Q Where was he slapping you with it, [complainant]?

A My vagina.

Q Okay.  So if I could just get the chronology of what happened square.  So there was the digital penetration?

A Yes.

Q And then he was kissing you all over your body?

A Yes.

Q And you said he couldn’t maintain his erection?

A Yes.

Q And you said that you weren’t sure whether or not he penetrated your vagina with his penis?

A I am not sure.

Q And you said that – well I should say when he was unable to maintain his erection, did he perform any other sexual acts on you?

A He started fingering my anus and trying to insert his penis there.  When he couldn’t get it there, he inserted it inside my vagina again …

Q [There was an objection at this point]. … Well I should say that the last thing you said was that he penetrated your anus with his fingers?

A Yes.

Q What happened after that?

A He started slapping my vagina with his penis again and he inserted his penis inside me.

Q And where did he insert his penis inside of?

A My vagina.

Q Okay.  How did it all end, [complainant]?

A I blacked out a few times.  I – I’m unsure.  I remember feeling him inside me and asking him to stop.  I remember him telling me to be quiet.  He kept on shushing me.  I was looking out – I had a, like, a night light skylight thing in my room.  I was kind of staring at that and I remember that my neighbour  - he kind of wakes up really early and I was trying to think of ways of escaping.  Like, telling him to stop wasn’t working and telling him he was my uncle wasn’t working.  And I just – wanted a way of making him stop, so I told him Adam would be there soon.  He needed to stop because Adam would be here soon.  And he kind of stopped.  He thought I was joking.  He laughed at me.  And told me Adam wouldn’t just walk into my home.  I told him he didn’t understand our friendship.  Adam would do that.  And he allowed me to get up to close my glass door into my caravan.

Q Okay in relation to you getting up to close the glass door, where did that happen in the sequence of events?

A I am unsure.

Q All right.  Now, when he let you up to close the glass door, why didn’t you leave the caravan at that stage?

A I – I had promised my landlords when I moved in, I wouldn’t bring drama to their yard.  And my best friend, Adam, had – he’s got a criminal record.  I was scared that he’d do something to Mark, and I’d lose my friend.  I would – I don’t know, I guess.  I was worried of the drama.  I didn’t want my landlords to have to deal with police.  I didn’t want Adam in trouble.  I just – I don’t know – I just – I locked it and I went back.

Q Okay.  And when you went back to the bed, do you remember what the next sexual incident that occurred was?

A He – he started touching me again.  I wrapped myself in a doona.  And he – he dragged me back into bed.  And I don’t really remember much after that.  I kind of woke up the next day.

Q And when you woke up the next day, do you remember what time you woke up?

A No.

Q Do you recall feeling what your level of intoxication was at the time that you woke up?

A I felt really sick.  I was queasy, my head was spinning.

Q Did you still feel intoxicated?

A Yes.

Q And what happened that following morning?

A My phone was going off.  I’d thought it – I wasn’t sure if it was a message or a phone call.  I could just – I could hear it going off.  My uncle – I thought he was asleep, and I tried to roll over to get out of bed without waking him.  And I woke him.  And he grabbed me.  He started kissing me again and tried to touch me.  And I told him it was my phone.  I needed to answer it.  I could be work, it could be something important, and that I needed to get my phone.  And he let me go and I used the phone to get out of my caravan.

Q Now when you said that [the defendant] was kissing you and touching you, where was he touching you?

A He was trying to grab my breasts and his hands were between my legs.

Q And when he put his hands between your legs, where was he touching?

A My vagina.

Q Did he penetrate your vagina again that morning?

A Yes.

Q Do you recall what he penetrated your vagina with?

A His finger.

Q And then you said that you were able to get out of the caravan because you used your phone?

A Yes.”^[9]

23. [23]
    The complainant said that she spoke to her friend on the phone, Kim Kilpatrick.  She also went to Adam Hilliard’s caravan, and told him “I fucked up”.  She told him that she had gotten too drunk and that “something had happened with my uncle”.  The complainant said that Mr Hilliard shrugged and said that that happens when people drink.  He also said that as she and the defendant were both adults and not actually related, so anything that happened was the alcohol and it didn’t matter.  The complainant said that she cried and told Mr Hilliard that he just didn’t get it.  She also told Mr Hilliard that “he didn’t just touch me; he didn’t just make a move; he raped me.”^[10]
24. [24]
    The complainant then said that she went back into the caravan and asked the defendant to leave.  The defendant said he understood, that he was sorry, that it shouldn’t have happened but he understood.^[11]
25. [25]
    Exhibit 2 was a further Facebook conversation between the complainants and Felicity McWaters on 23 December 2018; in essence the complainant asked to go over to her house and speak with her.
26. [26]
    The complainant said that when she arrived at Ms McWaters’ house, she was asked if she was okay.  She said no.  Ms McWaters said to her “he touched you, didn’t he?”.  The complainant cried and said “He raped me, Fel.”^[12]  Ms McWaters drove the complainant straight to the police station.
27. [27]
    The complainant at the police station provided a formal statement.  She was then taken to Logan Hospital where she was examined by a forensic medical officer, Dr Catherine Lincoln.  A number of vaginal swabs were taken.
28. [28]
    At the hospital the complainant received a phone call from the defendant, which was recorded by the arresting police officer, Detective Senior Constable Lingwood.
29. [29]
    The complainant said that at no time during the sexual acts did the defendant use a condom.  At no stage did she consent to any of the sexual acts with the defendant.^[13]
30. [30]
    In cross examination, the complainant acknowledged that while she would call him “uncle”, she would also call him by his first name.  She added that she only called the defendant by his first name after December 2018. She accepted that she had regular contact with the defendant on Facebook, through telephone calls and SMS messages.  She recalled that there were occasions that she would have phone conversations with him for half an hour at a time.
31. [31]
    The complainant accepted that the defendant gave her money during 2018, including money for rent and for food and groceries.^[14]  She accepted that the defendant paid money into her National Australia Bank account and also into her Commonwealth Bank account.  She agreed that the defendant would give her cash when he came to Queensland.  She accepted that as far as she was aware the visit around 22 December 2018 was the third time the defendant had come to Queensland.  She accepted that on the earlier occasions when the defendant came to Queensland they would go out for dinner, and he would pay for dinner as well as drinks.^[15]
32. [32]
    The complainant acknowledged that she had had a conversation with the defendant about Mr Lees.  She told the defendant that they had been engaged, but at some point the engagement was called off.  She accepted that she told the defendant that despite breaking off the engagement she still slept with Mr Lees.  She acknowledged that she had sexual intercourse with Mr Lees the day before 22 December 2018, that is, 21 December 2018.
33. [33]
    The complainant was asked if on 22 December 2018 if she and the defendant went to someone’s house to purchase cannabis.  The complainant was warned by me that she was not obliged to answer that question, and she declined to answer it.^[16]
34. [34]
    The complainant accepted that in her police statement she said during the sexual incidents that she had scratched the defendant on the hip.  She accepted that she did not mention that in her evidence-in-chief.  She accepted that she told the police in her formal statement of 23 December 2018 that the scratching occurred at the time when the defendant was trying to push his penis into her anus.^[17]
35. [35]
    The complainant accepted that the defendant bought her some swimming gear from the surf shop at Wet ‘n’ Wild on 22 December 2018.  While the complainant could recall that a bottle of Maker’s Mark bourbon was bought after dinner at Fitzys, she could not recall whether a six pack of rum and cola was also purchased.
36. [36]
    The complainant accepted that back at the caravan after Fitzys that she also poured some bourbon along with the defendant.  She could not recall how much bourbon was left in the bottle before they went to visit Felicity McWaters.^[18]  She agreed that she had consumed a lot of alcohol by that point in time, and that she drove the defendant’s car despite having drunk so much.
37. [37]
    The complainant accepted that she did not mention in her police statement that she had vomited at Fitzys.  The complainant conceded that she had a history of bulimia and anorexia as a teenager; despite that the complainant said the vomiting was a result of the alcohol consumed.
38. [38]
    The complainant said that Mr Hilliard did not like Mr Lees, and that she would sometimes have to sneak Mr Lees into her caravan to hide him from Mr Hilliard.^[19]
39. [39]
    The complainant accepted that at the gathering at James’ house that night she blocked Mr Lees on her social media, and sent him a text message that read “I’m sorry.  It’s over.”
40. [40]
    The complainant could not recall what time she left the gathering.  She accepted that when they got back to the caravan she and the defendant continued to drink for a while.^[20]
41. [41]
    The complainant accepted that when she and the defendant got into bed they were lying face to face, and that she cuddled into his shoulder.
42. [42]
    The complainant accepted her evidence that the defendant said “I’m not doing anything.  Don’t be silly” when he first put his hands between her legs was not contained in her police statement, and that it emerged for the first time in her evidence at trial.^[21]
43. [43]
    The following exchange took place in cross-examination:

“Q And in respect of other things that you said in your evidence today: you said that he – you told him: ‘Stop, uncle’.  Do you recall saying that?

A Yes

Q ‘Shouldn’t happen’, I think you also ---?

A Yes.

Q --- said to him.  Can I suggest, if I can refer you back to that paragraph 38, that you had actually, on a previous account, said to him what you told the police: ‘You need to stop.  This is not right’?

A Yes.

Q Do you accept that you said that to the police back on the 23^rd of December 2018?

A Yes.

Q And can I suggest that you had said to him during the course of the night, words to the effect: ‘We are related.  We shouldn’t do this’.  Do you agree that you said that?

A Yes

Q And you said to him words to the effect: ‘It’s wrong, because we’re related’?

A Yes.

Q But nowhere did you say: ‘Stop, I don’t want to have sex’.  Do you agree or disagree with that?

A I disagree.

Q But you didn’t actually use the words – what I’ve said though:  ‘Stop, I don’t want to have sex’ anytime, did you?

A No.

Q But when you’re saying: ‘stop’, in your mind you were saying: ‘stop, I don’t want to have sex’?

A Yes.

Q That’s what you mean, isn’t it?

A Yes.

Q But you didn’t verbalise to him: ‘Stop, I don’t want to have sex’?

A No.

Q Would you agree with that?

His Honour: Sorry, can I just clarify that.  Does that mean, sorry, you didn’t actually say to him, in the caravan …?

A I did not word – my words to him was not: ‘I don’t want to have sex’.

His Honour: So you never said that to him?

A No.

Q And the extent of the things that you had said were words to the effect what I’ve covered, and I’ve just covered, out of completeness: ‘we shouldn’t do this’, ‘this is wrong’, ‘we’re related’, ‘we shouldn’t do it because of this’.  Do you recall – that’s the extent of what you had said to him.  Do you agree, or do you disagree?

A I agree.”

44. [44]
    The complainant accepted that on her evidence the defendant was unable to get an erection.  She recalled him slapping his penis against her vagina.  When asked if there was some uncertainty about whether his penis in fact went into her vagina at all, the complainant said: “At that time, I don’t know.”  The complainant accepted that she said that at some point his penis went into her vagina, but she could not recall how that actually happened, or when in the sequence it happened.^[22]
45. [45]
    The complainant accepted that she had blacked out a few times during the incident, and that there were gaps in her memory about what happened.
46. [46]
    The complainant accepted that during the occasion in the bed she was moving her hips around, and that she was lying face to face with the defendant when he was kissing her on her body.  She rejected the suggestion that the kissing was entirely consensual.  She rejected the suggestion that the defendant was unable to get an erection and never put his penis into her vagina.^[23]
47. [47]
    The complainant rejected the suggestion that either she or the defendant suggested trying anal sex.  She rejected the suggestion that the attempt by the defendant to put his penis into her anus was completely consensual.  She maintained that the defendant had inserted something into her anus.^[24]
48. [48]
    The complainant rejected the suggestion that the defendant never put anything into her vagina, specifically his penis or his tongue.^[25]
49. [49]
    The complainant accepted that she had been sexually assaulted as a child, between the ages of five and twelve.  The sexual assaults involved penile rape, at the hands of a family member.  The complainant agreed that that occurred in a bedroom, and when sexual assaults occurred she would bite her pillow.  The complainant accepted that in respect of the alleged incident on or around 23 December 2018 with the defendant, she told police that she also bit her pillow during the alleged sexual assault.^[26]
50. [50]
    The complainant accepted that she said to the police on 23 December 2018 that she thought she might have dreamt it.^[27]
51. [51]
    The complainant accepted that she told Kim Kilpatrick on 23 December 2018 that “my head is spinning”.^[28]
52. [52]
    The complainant accepted that in years past she had dreams and nightmares about the prior sexual abuse that occurred when she was a child.  She also accepted that on the evening of 22 December 2018, she had discussed her previous sexual abuse with the defendant.  She accepted that those conversations occurred just before she and the defendant went to bed.
53. [53]
    The following exchange took place:

“Q And despite you saying in your statement to police you weren’t sure that you dreamed it, I suggest to you that the penile intercourse just didn’t happen at all?

A It happened.

Q Now, in respect of the anal intercourse, he tried to put his penis into your anus but you said, ‘it hurts,’ and he stopped.  Can I suggest that’s all that actually happened in that …?

A No.

Q And can I suggest that after he did that that the two of you spooned and that you both went to sleep?

A No.

Q And that nothing happened the next morning at all?

A Not true.”

54. [54]
    The complainant was questioned about phone records revealing her phone calls that were made to various people on 23 December 2018.  She could not recall making a telephone call to Kim Kilpatrick, the mother of Kearin Lees, at 6.42 am, with a duration of 11 minutes and 5 seconds.  She also could not recall telephone calls to Ms Kilpatrick at 10.34 am and 10.39 am.  The complainant accepted that she spoke with Ms Kilpatrick about her relationship with her son, that she was regretful about breaking up with him, and she was sorry for blocking him.  She accepted that in the first telephone call at 6.42 am, she made no comment about the defendant raping her.^[29]
55. [55]
    The complainant accepted that in the morning she told the defendant “You need to leave.  You need to go.”  She also agreed that she said words to the effect “this should never have happened,” and “we should never talk about it again”.  She denied saying that they should not tell anyone about it.^[30]
56. [56]
    The complainant accepted that when the defendant left, she gave him a hug.
57. [57]
    The complainant accepted that she texted the defendant later during the day on 23 December 2012.  She accepted that she received a text from the defendant that said “I home safe”.  She replied to that with “Good to know.  Stay safe”.  She agreed that the defendant replied to that “Are you okay?”.^[31]
58. [58]
    The complainant accepted that she was “quite hungover” on the morning of 23 December 2018.
59. [59]
    The complainant accepted that she said in her statement to police at the time she was in the caravan with the defendant that “I was way too drunk and could barely stand”.  She also accepted that she told the police that she did not know how his penis ended up in her vagina.^[32]
60. [60]
    It was suggested to the complainant in effect that the allegations were made to get full attention from Mr Lees, and to reinstate their engagement.  That was rejected by the complainant.^[33]
61. [61]
    The complainant accepted that she had “very heavy cannabis use history”.  She accepted that during 2019 and 2020 she was smoking between ten and twenty cones per day.  She accepted that she was using cannabis prior to December 2018.  During a discussion about her earlier claims of privilege, the witness unprompted said the following:

“I’m happy to admit to my usage.  My uncle was not my supplier.  I have my own supplier.  I will admit to my usage if that’s what’s needed today.  I’m a stoner.  It’s how I get through my life.  I can’t deal with humans without it.  I’m terrified of my own shadow on a good day.”^[34]

62. [62]
    The complainant then waived privilege and accepted that on 22 December 2018 she went to her dealer’s place to buy cannabis before going to Wet n Wild.  She accepted that before going to the gathering where Felicity McWaters was, she had consumed about four or five cones.  At the gathering she accepted that she smoked another four or five cones.  She accepted that she had “quite a bit of cannabis in your system during the course of that night”.^[35]
63. [63]
    The complainant conceded in her victim impact statement that she said:

“I was searching for validation and acceptance, support and love.”

When asked about that, she said that she did want love from the defendant, but “not that love.”^[36]

64. [64]
    The complainant was asked about her phone use in the late evening of 22 December 2018 into the early morning of 23 December 2018.  She disagreed with the suggestion that she was on her phone a number of times as well as on Facebook.^[37]
65. [65]
    In re-examination, the complainant was asked if she could actually recall scratching the defendant on the hip.  She said:

“I recall reaching somewhere on his body to push him away, and digging my nails in.  But I don’t remember when or how or what time; I just remember pushing.”^[38]

66. [66]
    When asked why she said to the police that she might have dreamt the incidents she said:

“I woke up and I remembered it instantly and I hoped, I guess.  I just really hoped it wasn’t real.”^[39]

67. [67]
    The complainant said in respect of flashbacks and night terrors, that that had not occurred for at least 10 or more years.^[40]

Other prosecution witnesses

68. [68]
    Kearin Lees gave evidence that he was 23 years old in December 2018.  He had been engaged to the complainant; at the time of giving evidence they had a distant relationship.
69. [69]
    On 22 December 2018 the complainant and the defendant arrived at his house in Eagleby sometime after mid-day.  The defendant was driving a Ford Falcon.  The complainant had brought Christmas presents which Mr Lees opened, and then they decided to travel to Wet n Wild, sometime around 2.30 or 3.00 pm.
70. [70]
    They stayed at Wet n Wild for only about an hour and a half because the rides were closed due to an oncoming storm.  He recalled that they got back to Eagleby when it was approaching dark.  They went back to his house and got changed.  They then went to Fitzys at Waterford.  He consumed three or four rum and cokes throughout the whole time he was there.  He recalled that the complainant was “hitting that level” of being drunk.^[41]
71. [71]
    When they left Fitzys they went through the drive-through bottle shop.  He was angry, and not talking to the others.  He asked them to drop him home.  The defendant offered him a six pack of rum which he declined.  He went back to his house and went to sleep.  He woke up at 2.00 am and realised he was blocked by the complainant.
72. [72]
    In cross-examination Mr Lees accepted he said to the police that at Fitzys “I was getting quite drunk”.
73. [73]
    Adam Hilliard gave evidence that he was 26 years old in December 2018.  He said he was a good friend of the complainant.  At the time of giving evidence he was dating the complainant.
74. [74]
    He gave a description of the block where he lived, and the situation with the caravans.  He recalled meeting the defendant on one occasion, maybe a year before December 2018.
75. [75]
    He recalled that at about 6.30 am on 23 December 2018, as part of a usual arrangement, he went to the complainant’s caravan to make coffee.  He saw the defendant lying in the complainant’s bed.  After making the coffee, the complainant went outside and walked with him towards his caravan.  The complainant told him that “her uncle had made a move on her that night.”  He said the following exchange took place:

“And I said ‘well, you know, you guys were drunk.  People do things.’  And I wasn’t aware they were fully related or what had happened at the time.  So kind of like, well, you know, things happens.  I know it might be a bit upsetting.  And then from there we – she said ‘no, he raped me’.  At which point I was a little bit flustered; I wasn’t sure what to do.  I was pacing backwards and forwards thinking what I should do.  I looked up the number for Police Link.  I gave my phone to [the complainant] with the number.  I then thought of how I could address the situation a bit more.  I said, ‘I can go and drag him out, beat the shit out of him kind of thing.  We can just tell him to leave or we can call the police now and it’s up to you whatever you want to do, whatever’s easier for you.’”

76. [76]
    Mr Hilliard said that the complainant chose to ask the defendant to leave.  He later heard the defendant’s car start up and leave.
77. [77]
    Afterwards he had another conversation with the complainant, who told her that the defendant raped her more than once.  The complainant seemed very scared and shaken up.^[42]  He recalled that the complainant “basically spelled out that she – that he had penetrated her multiple times over the course of the night and the morning.  I – yeah, I – I wrote it down at the time so I wouldn’t forget.”^[43]
78. [78]
    In cross-examination, Mr Hilliard agreed that he told the police that the complainant and defendant came back to the complainant’s caravan at about 9.30 pm.  He could hear the complainant laughing.
79. [79]
    Mr Hilliard accepted that the complainant did not go into any details about the actual rape, whether it was by a penis or finger.^[44]
80. [80]
    Felicity McWaters gave evidence that she has a very good friendship with the complainant.  She only met the defendant on the evening of 22 December 2018.  She was shown Exhibit 1 and accepted that she had that exchange with the complainant.
81. [81]
    Ms McWaters said that her brother James was hosting a gathering, and that she invited the complainant to come over.  When she arrived the defendant was with her, and the complainant introduced him to her.  She said she was out the back having drinks while her brother was cooking on the barbeque.  They were playing card games, which turned into drinking games.^[45]
82. [82]
    Ms McWaters said that she had started drinking alcohol in the early afternoon, and by the time the complainant and the defendant arrived she had about six standard drinks.  She described herself at that time as “tipsy but not drunk”.  The complainant and defendant joined in with the drinking, sitting around the table.  Eventually Ms McWaters went to bed at around 10.30 pm.
83. [83]
    She agreed that she was in her room when she had the exchange shown in Exhibit 1 at 10.59 pm with the complainant.
84. [84]
    Ms McWaters accepted that she had the exchanges in the morning of 23 December 2018 with the complainant.  She recalled that she had a phone conversation with the complainant sometime between 10.58 am and 9.23 pm on 23 December 2018 in the afternoon.  The complainant came over to her house.  She then gave the following evidence:

“She came into my room.  She sat down on the bed.  And I said, ‘is everything okay?’  She kind of just started getting really – like, her face was that she was really upset and didn’t really want to say anything, and that’s when I asked her; I said, ‘did he touch you?’ and she kind of just nodded.  … She didn’t really say too much.  Didn’t – it was kind of really hard for her to open up, but I was trying to get her to talk.  But she did say, ‘he raped me’ and she just started crying.”^[46]

85. [85]
    Ms McWaters said that the complainant went into some detail, telling her that the defendant was forcing her down, that she was telling him to stop but he wasn’t listening.  She told her that the defendant was forcing himself on top of her, “fingering her” and then penetrating her.  The complainant was telling him to stop and “don’t do that” and “what are you doing?”.  The complainant told her that she had been penetrated by his penis, as well as his fingers.
86. [86]
    Following a conversation with the complainant, she managed to convince the complainant to go to the police station.
87. [87]
    In cross-examination, the witness accepted that the details about penetration by fingers and by penis were not included in her original police statement on 23 December 2018.  The witness said that the police officer taking her statement never asked her if the complainant went into any detail.^[47]
88. [88]
    Ms McWaters conceded that she told police that the complainant was in a drunk and emotional state when they left her brother’s house at around 11.10 pm on 22 December 2018.^[48]
89. [89]
    Kim Kilpatrick gave evidence that she knew the complainant because she had been in a relationship with her son, Kearin Lees.  On the morning of 23 December 2018, she had a telephone conversation with the complainant.  She also had other conversations throughout the day.
90. [90]
    In one of the later conversations, sometime between 12.00pm and 1.00pm, she said that the following was said:

“… I was having a chat to her and she sounded really upset, and I said ‘honey, what’s wrong?’ you know, I said, ‘you can talk to me.’  And she said, ‘everything’s just a mess’ and I said, ‘what is?’ and she said – then she started crying, like, really, really crying.  I said ‘[KUG], what’s going on?’  And she said, ‘my uncle raped me through the night.’  And I just went, ‘what?’  You know, like, yelled out ‘what’, and she said ‘yeah’, and then she started crying more and more.  I said to her, ‘honey, please tell me you’re going to go to the police and, you know, lay charges or whatever or at least tell the police’ and she said, ‘of course I am.’  She said, ‘I’m just waiting for a friend to come with me to go to the local police station and take it from there.’  And I said, ‘OK, then.  After you’ve been there, I said, ‘can you please ring me and let me know how you’re doing.’  Because I was really – I mean, at that stage she was on her own and I was concerned about her.”

91. [91]
    In cross-examination, Miss Kilpatrick accepted that the complainant telephoned her at 6.42am on 23 December 2018.  She accepted the suggestion that conversation was 11 minutes and five seconds long.  She accepted that during that telephone call the complainant made no mention of being raped.^[49] 
92. [92]
    Ms Kilpatrick said that in that first phone call the complainant said that “things were just a mess”, and that she needed to be away from Mr Lees, that she loved him but couldn’t be with him “just now”.  The complainant also said that she was ceasing all communication with Mr Lees. 
93. [93]
    Ms Kilpatrick was taken through the phone records.  They recorded a number of telephone calls, as well as communications on Facebook Messenger.  Ms Kilpatrick accepted that in her statement to police she did not mention the complainant saying that her uncle had raped her “through the night”.^[50]
94. [94]
    Daniel Qamar, a Senior Service Officer with Optus Telecommunications gave evidence.  He produced documents in respect of specific telephone numbers, inparticular the complainant’s telephone number.  Exhibit 5 is a schedule of data connections recorded on the complainant’s telephone over 22 December 2018 and 23 December 2018.  Significantly, Mr Qamar could not distinguish from the records whether the complainant was actively using her mobile telephone to access data, or it was simply automatically occurring in the background.  He gave this evidence:

“For these specific records, it’s – they don’t show whether it’s – whether somebody had requested for it, or whether this is happening in the background without being requested.  I can just tell you that it was just the device accessing the internet at the time.  But whether or not somebody had requested for it or whether it was automatic, I – the records don’t show this, unfortunately.”^[51]

Evidence of the arresting officer

95. [95]
    Plain Clothes Constable Lingwood gave evidence that he became involved on 23 December 2018, after the complainant attended the Logan Central Police Station.  He arranged for the complainant to be taken to the Logan Hospital, where she underwent a sexual assault investigation.  While at the hospital the defendant telephoned the complainant, and it was recorded by plain clothes Constable Lingwood.  That recording became exhibit 4, and I will discuss that below.
96. [96]
    Plain Clothes Constable Lingwood arranged for the defendant to be forensically examined by Dr Ian Mahoney on 24 December 2018.  He was present for that Examination, and he recalled Dr Mahoney warning the defendant that his examination was not a normal doctor-patient consultation.  The defendant was warned that he did not have to answer Dr Mahoney’s questions.  Plain clothes Constable Lingwood recalled that the defendant advised Dr Mahoney that he could not remember if he had sex with the complainant or not.^[52] 
97. [97]
    In cross-examination, Plain Clothes Constable Lingwood accepted that he had never actually seized the physical Facebook messages between the complainant and witnesses, nor had he conducted a Cellebrite examination of the defendant’s mobile phone, and he conceded he did not actually look at specific messages himself.^[53]  He conceded in respect of the recording of the telephone conversation between the complainant and the defendant that efforts were made to enhance the quality.^[54]  The recording in exhibit 4 was “as good as we can get it, yes.”^[55]

Medical evidence and scientific evidence

98. [98]
    Dr Catherine Lincoln gave evidence.  She is a legally qualified medical practitioner, with a masters’ degree in forensic medicine from Monash University and a PhD in forensic medicine from the University of Western Australia.  She examined the complainant on 23 December 2018.
99. [99]
    Dr Lincoln said she conducted a genital examination of the complainant, and she did not note any injuries.  She also collected swabs during her genital and anal examination of the complainant, which she later gave to investigating police officers. 
100. [100]
     Dr Lincoln said it was possible for digital penetration of a vagina and anus to occur without it leaving visible injuries.^[56]
101. [101]
     In cross-examination Dr Lincoln said that the complainant had told her she had been drinking alcohol on the evening of the assault, but she made no mention about taking drugs.  She said it was her usual practice to ask a complainant if they had consumed any drugs or alcohol.^[57]
102. [102]
     Dr Lincoln said that the absence of any genital or anal injury did not tell her anything about whether there was a penetrative event.  Similarly, the presence or absence of injuries does not tell anything in relation to the question of consent.^[58]
103. [103]
     Dr Ian Mahoney gave evidence that he is a legally qualitied medical practitioner, who had worked for the past 18 years as a fulltime forensic medical officer.  He was a fellow of the Australasian college of legal medicine, and a founding fellow of the faculty of Clinical Forensic Medicine at the Royal College of Pathologists of Australasia. 
104. [104]
     He was requested by police to conduct a forensic examination of the defendant on 24 December 2018, at about 2.10pm at his office in Hershel Street in Brisbane.  The defendant told him that he had last had a shower at 7.00am that morning.
105. [105]
     Dr Mahoney asked the defendant whether he had sex in the past seven days.  He said he didn’t have any sex in the past seven days.^[59]
106. [106]
     Dr Mahoney asked the defendant about the alleged incident.  The defendant replied:

“Well, he said he couldn’t remember the alleged incident, because he was, in his words, exactly, ‘pissed and stoned’.”

107. [107]
     Dr Mahoney examined the body of the defendant, and he did not see any signs of any scratch marks at all.^[60]
108. [108]
     In cross-examination, Dr Mahoney accepted that in his notes he recorded the defendant saying “he does not recall having sex because he was pissed and stoned.”^[61]
109. [109]
     Dr Mahoney accepted that he did not clarify with the defendant what he meant by “sex”. 
110. [110]
     Jacqueline Wilson, a forensic DNA analyst at the Forensic and Scientific Services Laboratory at Coopers Plains gave evidence.  She had a Bachelor of Applied Science in Medical Laboratory Science and also a Master of Science and Forensic Science.  She had worked as a forensic DNA analyst in excess of 14 years.
111. [111]
     To assist her investigation of swabs taken, she was given three reference samples from the complainant, the defendant and Mr Lees.  Mr Lees’ DNA, in the form of a “spermatozoa fraction” was found on endo-cervical swab 1.
112. [112]
     The swab from the glans of the defendant’s penis revealed a single source DNA profile matching the defendant, which would not be unexpected.
113. [113]
     The fabric of the interior crotch of the complainant’s underwear was tested, and semen was located.  The spermatozoa detected matched the DNA profile of Mr Lees.  She could exclude the defendant as a contributor to that DNA profile.^[62]
114. [114]
     Ms Wilson said that spermatozoa in the vagina can remain detectable for one to two days, or sometimes as long as seven days.

The pretext telephone call

115. [115]
     There was no doubt that it is difficult to hear the defendant on Exhibit 4.  The complainant, obviously being closer to the recording device, is clearer.  During the trial I listened to Exhibit 4 in open court.  I also listened to it in my chambers using earphones.  I produced for the parties’ consideration my initial assessment of what was said, which was marked for identification in “B”.  The defence produced a transcript of what counsel submitted was said in that telephone conversation, and that became marked for identification in “C”.  I heard submissions from the Crown Prosecutor, and there was some agreement with parts of that defence transcript.
116. [116]
     Consequently I listened to the recording again in chambers through earphones, and I was able to rewind and listen to specific parts.  Unfortunately the defendant mumbles in his speech, which added to the difficulty in hearing what was said.  Nevertheless, below is what I have determined is said on Exhibit 4:

D: Hello?

C: Hello?

D: Hello?

C: Hey, Uncle.

D: You there?

C: Yeah, are you there?

D: Yeah, I can just hear ya. ( [indistinct] I can get work done

[Indistinct].

C: Yeah.

D: Spent most of the day so – you there?

C: Yeah.  I wanted to talk to you.  Are you there?

D: [Indistinct].

C: Are you there?  Are you there?

D: Yeah, I’m here.

C: I needed - -

D: [Indistinct]

C: I needed to talk to you.

D: Yeah?

C: About what happened last night.

D: Yep.

C: I wanna know why Uncle.

D: I wouldn’t have a clue just [indistinct].  I done [indistinct] like my life – I don’t know what happened or why.

C: Why didn’t you stop when I asked you to?

D: I can only remember about half of it, how drunk I was.  Yeah.  Shouldn’t have happened.

C: I know.

D: Mm.  You know I had way too much alcohol.  I got [indistinct] memory exactly [indistinct]. What I can’t get me head around.

C: I asked you, I, I wanted you, I asked you to stop.

D: Mm.  I can’t even remember any of that.  No, no.

C: I um I just, I needed.

D: [Indistinct]

C: To know why.

D: Yeah, I wouldn’t be able to tell you why.

C: I’m gonna go.

D: Hey?

C: I need to go.

D: Oh yeah.  I’ll talk to ya.

C: OK, Bye.

D: Bye.

Evidence of the defendant

117. [117]
     The defendant gave evidence that he was 49 years old, having been born in 1971.  He lived in the suburb of Armadale in Perth.  He was employed as a Final Trim Grader Operator, on roadworks for a mining company.
118. [118]
     He knew the complainant, as she was the daughter of his half-sister.  He was not close to that side of the family.  He accepted that he got in touch with the complainant in 2018, initially by Facebook, and subsequently telephone and text.  He had found the complainant under one of his other sister’s contacts.  He sent her a message and that’s how their communications began.  The complainant sent him her phone number.  He also had communication with her by Facebook messenger.
119. [119]
     He said that in 2018 he travelled to Queensland about three times.  The third time was December 2018, where he had come back over to pick up some cars he had in Queensland.  He thought that he arrived in Queensland around Monday, 17 December 2018.
120. [120]
     In respect of 22 December 2018, he telephoned the complainant at around 8.30am or 9.00am, and then there were a few more telephone calls after that.  The complainant gave him her new address.  He drove down; his GPS was giving him the wrong directions, so he had to pull over and contact the complainant, who came out in her car and showed him the way to her caravan.^[63]
121. [121]
     He said he did not stay long at the caravan; he was talking to the neighbour, Adam Hilliard.
122. [122]
     After leaving the caravan he and the complainant went to pick up Mr Lees.  After collecting him, he was “pretty sure” that they went to the complainant’s drug dealer because they wanted to get some drugs.^[64]
123. [123]
     The complainant wanted the defendant to meet her boss; Mr Lees was not invited so he was dropped off.  They went to the boss’s house, and then they decided they wanted to go to the beach.  So they went back and saw Mr Lees, and he wanted to go to the beach as well.  When they were on the way down to the Gold Coast, it was really hot and they decided instead to go to Wet ‘n’ Wild Water Park.  He said that they got there around 3.30pm or 4.00pm, and a storm was already breaking.  As a result the park was closed.  While there the complainant said she did not have any swimmers for Wet ‘n’ Wild and the defendant gave her money to buy some as a Christmas present.  The complainant asked if she could have a new towel. 
124. [124]
     The water park remained closed because “the storm was coming back” and they decided to go somewhere to have dinner.  He could not recall the place, but agreed he had heard witnesses refer to that as Fitzy’s.  He recalled that they got there at around 4.30pm to 5.00pm; the bistro was not open for another 45 minutes or half an hour.  As a result they decided to drink at the bar.  Before that, they had actually gone back to Mr Lees house to get changed, then went back to Fitzy’s.

The complainant said that they were all driving that afternoon in his car, a 2004 Ford Fairlane.  Once back at Fitzy’s, they started drinking; he said he had five or six rum and cokes.  He said all three of them were drinking rum and coke.^[65]

125. [125]
     Over dinner he said he probably had one more glass of rum and coke, and after dinner they had a couple of more drinks and some cigarettes.  He said that they left the pub when it was dark, probably between 6.30 and 7.00 pm.  As they left he bought a six‑pack of OP Bundaberg Rum and cola cans for Mr Lees, and he bought a bottle of Maker’s Mark Bourbon.  The complainant said she had coca-cola at her house.^[66]
126. [126]
     The complainant then drove the car when they left Fitzys.  The defendant said that he had been done a couple of times for driving under the influence, and as a result the complainant drove his car when they left the hotel.
127. [127]
     The defendant said that week he had actually been staying at his cousin, Veronica’s house in Zillmere.  On this evening he suggested he would stay at a motel, but the complainant told him not to do that, that was “being silly”.^[67]
128. [128]
     The defendant said that he bought all the drinks at the hotel, that he paid for everything.  He recalled that the complainant was keeping up with him by way of drinks.  He said on the previous occasions he had been in Queensland and met up with the complainant, he had paid for social activities.
129. [129]
     After leaving the hotel Mr Lees was dropped off at his place, and then he and the complainant went back to her caravan.  He could not remember what time, but it would have been closer to 8.00 pm.
130. [130]
     Counsel for the defendant interrupted his narrative by asking the defendant about the complainant’s evidence that she did not consent to any sexual activity.  The defendant said “that – that was a lie .. because we’re kissing and she kissed me and she’s up my back”.^[68]
131. [131]
     Counsel for the defendant then returned to the sequence of events on the evening, the defendant remembered that when they got back to the caravan the complainant was making a few phone calls and texting somebody.  She said that a friend of hers wanted to meet him, and as a result they got back in his car and went to her friend’s place.  Before they did that, he said that in the caravan they had “a few more drinks, a few more cones.”^[69]
132. [132]
     The defendant said that he and the complainant went in the complainant’s car to this house where the friend Felicity was.  There were about six other people there at the house.  He recalled he was drinking at that gathering, that he had probably three or four drinks there.  He said that he stayed at that gathering for a few hours.  He could not recall the time he left, however he knew it was around midnight or close to midnight.
133. [133]
     He recalled that there was an argument at the gathering, concerning the complainant and the others about Mr Lees.
134. [134]
     They then returned to the complainant’s caravan.  He noted at the gathering that he and the complainant were drinking the cans of OP rum and cola that Mr Lees forgot to take.  He recalled that he had three cans, the complainant had three, and he thought that they had a couple of vodkas after that.^[70]
135. [135]
     Once back at the caravan, they stayed up talking he thought for a couple of hours before going to bed.  He recalled they talked about his half-sister and his mother, talking about Mr Lees.  He said to her again that he preferred to stay in a motel but she told him not to be silly, to save his money for the trip.  He recalled that before they went to bed the complainant reminded him a couple of times to make sure that she locked the front door, because her next door neighbour Adam Hilliard walks in and “smokes her billies in the morning”.  The defendant clarified that this meant her drugs, “pot”.^[71]
136. [136]
     The defendant described his level of intoxication just before he went to bed as “pretty high, very high”.  He also said that before he went to bed “I reckon we would have – would have had about 20 [cones] by then.”^[72]
137. [137]
     The defendant said that he didn’t usually smoke drugs during the day, he only smoked it to help him sleep.  But because on this evening he was in a party situation, “we were smoking cones at her place the first time – the second time, when I went there after dinner, and had cones at the party, and then we had more cones when we got back to her place.  Yep.”^[73]
138. [138]
     He recalled that the complainant locked the door, got into bed and that they cuddled and kissed.  He described them as passionate kisses, on each other’s lips.  He said he tried to “give tongue” but the complainant said she was not into that.  He said that they were lying face to face, and when they got into bed they still had their clothes on.^[74]
139. [139]
     The defendant said that the complainant had her head in his shoulder, and they were talking.  He then gave her a kiss, ran her hand down her legs onto her privates.  She was still rubbing his back, cuddling into me, kissing and cuddling.  He thought from memory that he put his hand down her pants, and there was skin on skin contact.  He said his hand was between her legs, and “from memory, I think I’ve slipped my finger inside her.  And she was, sort of, rubbing my back.  [Indistinct].  We both, sort of, said that we shouldn’t be doing this.”^[75]
140. [140]
     The defendant clarified that he actually put his finger in the complainant’s vagina.  The defendant then said that they stopped for a little bit, and then commenced kissing again.  He then started kissing her on her neck and then went down her body.  He said they ended up “sort of head to toe”.  He said he took her pants off, and he was kissing her belly and then kissing her vagina.  He said that the complainant said to him “You’re not even hard”.  He could not remember if she was actually touching his thighs or not.  He said he could not get an erection because he was too drunk and too stoned.^[76]
141. [141]
     The defendant rejected what the complainant said in her evidence that she had pushed his hand away when he had inserted a finger into her vagina.
142. [142]
     The defendant clarified that he started kissing the complainant from her neck down to her breasts, parts of her stomach and then ended up actually kissing the complainant’s genitals.  He recalled that they were “almost in a 69, she pretty much said that she doesn’t do that.  And that’s when I turned around the other way, and I think her legs were over my shoulder and I was doing oral sex.  Foreplay, as I know it.”^[77]
143. [143]
     The defendant said that he performed oral sex on the complainant, using his tongue and his fingers.  He said his fingers went into her vagina.  After that, he kissed his way back up her body and then took her shirt off.  He said he got back to her lips, there were a couple of kisses and they both stopped “because I think we both came to the same conclusion that we shouldn’t be doing this.  Because this is morally wrong.”^[78]
144. [144]
     The defendant gave this evidence:

“She said that we shouldn’t be doing this at all, because it’s not quite right.  And I agreed with her.  But – and I don’t know how it started again, but we started kissing and cuddling again probably about a couple of minutes after – later.  It wasn’t too far, like, later.  And I was – I couldn’t get it up.  And then I – I don’t know.  I must have been thinking about anal.  And I sort of, must have, started getting it up a little bit.  And that’s when I tried to do anal.  But she pushed me away and said, ‘No.  Stop.’  And that’s when we all stopped.  Nothing else happened after that.”^[79]

145. [145]
     The defendant then said that before he “tried to do anal” he had touched her bottom with a finger, and the complainant said “No, I don’t do that” and “no, I don’t – I don’t – I – stop, don’t do it.  I don’t do it.”^[80]
146. [146]
     The defendant denied that he ever put a finger into her anus.  He also said that his penis did not go into her anus at all.  He denied that he tried to put his penis into her anus, saying “didn’t get near her bum.”^[81]
147. [147]
     The defendant then said that they “spooned” and then he fell asleep.  He woke up the next morning and he was “busting to go to the toilet” so he went to the toilet.  The complainant was still in bed.^[82]
148. [148]
     The defendant was reminded of the complainant’s evidence that in the morning the defendant inserted fingers into her vagina again.  The defendant denied doing that, saying there was no sexual intimacy at all that next morning.
149. [149]
     He recalled the complainant waking up and her friend coming in.  He had come in to make a cup of coffee, but he and the complainant actually left with a bong and a bowl of marijuana.  The defendant said he was still lying on the bed because he was still hungover.  The complainant came back and said to him:

“I want you to leave.  What – we did last night can’t ever happen again.  Won’t ever talk about it.  I just need a bit of time and I don’t know what I am going to tell Kieran.”

150. [150]
     The complainant asked the defendant if he could drop Mr Lees’ wallet to him, she then walked him out to his car, gave him a cuddle and a kiss on the cheek.^[83]  He clarified that the complainant put her arms “right around me” and they both cuddled.
151. [151]
     The defendant said that after he left there were some text messages between the two of them.  He recalled texting her, asking “Are you OK?”  He said he did that because the complainant had had a big night and she was upset.
152. [152]
     The defendant said that the complainant rang him a couple of times, and continued to text him right up until the time when the police came to his door.
153. [153]
     The defendant was asked about his conversation with Dr Mahoney on 24 December 2018.  There was then this following exchange:

“Q: And you’ve heard the evidence from the police officer and the doctor about what you said to them?

A: Yeah.

Q: …about how you weren’t – you can’t remember having sex?

A: Yeah.

Q: You remember then – what do you say about that?

A: I – I find it really hard to talk about anything that happened – happens in the bedroom.  So, yeah, I – I probably went on the defensive, because I don’t know the people and – yeah.

Q: What do you classify as “sex”?

A: Sex is when both persons gets the pleasure out of it.  It’s – sex, to me, is – how would you put it – I – I don’t class it as sex.  I would class it as making love.  Sex, to me, means just something on the street that you never met – both want the same thing and that’s it.  There’s no – no connection.

Q: OK.  And also you heard some evidence from the doctor this morning about he said that you told him that you were pissed and stoned.  Do you remember that?

A: Yep.

Q: Do you recall saying that to the doctor?

A: Yeah.”

154. [154]
     The defendant was asked about the pretext telephone call that was recorded.  He said he could not really remember what he was thinking that day, he can remember 95 per cent of it, so he did not know why he said that he could not remember.  He said: “I think I was just trying to block it out of my head, because I was embarrassed about me and her and trying to have sex.”^[84]
155. [155]
     The defendant said that at no stage did he insert his penis into the complainant’s vagina, because he could not get an erection. 
156. [156]
     In cross-examination, the defendant said that in the back at the caravan before they went to the gathering where Felicity McWaters was, he and the complainant might have had four or five drinks of Maker’s Mark and Coca-Cola.  He said that the complainant was pouring the drinks; he was not pouring the drinks at that stage.  He said that the drinks were double-shots.^[85]
157. [157]
     The defendant said that by the time he got to the place where Felicity McWaters was, he was “starting to get reasonably drunk there”.  He accepted he drank more alcohol, over a couple of hours.  He recalled that he had three “OP Bundies and I think we had two vodkas”.^[86]
158. [158]
     The defendant said that he had first smoked cannabis after they got back to the caravan from Fitzy’s.  He agreed that he had smoked about 20 cones, and smoked out of the same pipe the whole night.  He said that when he smoked cones he would only pack the cannabis half way, because his lungs could not handle the smoke.^[87]  The defendant said that he has emphysema.  He actually clarified that the smoking implement was not a home-made bong, it was a little tobacco pipe.
159. [159]
     The defendant accepted that he was high on cannabis after he had smoked the 20 cones. 
160. [160]
     He accepted that in the recorded telephone conversation with the complainant that when the complainant asked why he did not stop when she asked him to, he said “I can only remember half of it.  That’s how drunk I was, and it shouldn’t have happened.”^[88]
161. [161]
     The defendant also claimed that on that recorded telephone conversation that the complainant apologized to him as well.  He recalled her saying: “Sorry for – for last night”.  When pressed if that was on that phone call, he said that it was in one of the phone calls that he had that day with the complainant.^[89]
162. [162]
     The defendant accepted that he had observed the trial from the dock, and that the witnesses were cross-examined on the instructions that he had given his solicitor and barrister.^[90]
163. [163]
     The defendant accepted that his memory on 23 December 2018 would be clearer than his memory when giving evidence.  He accepted that in the recorded telephone conversation in answer to the complainant’s question, “I want to know why”, he said words to the effect of, “I wouldn’t have a clue.  I don’t know what happened.”^[91]
164. [164]
     The defendant was asked whether he had a sexual interest in the complainant.  He described the complainant as a “distance love, I suppose”.  He clarified that as “not a full on connection-type thing, you know what I mean?”^[92]
165. [165]
     The defendant then said that in fact there was no conversation with the complainant about anal intercourse.  He said he just put “my finger on her bum”.^[93]  The defendant said that he simply tried to put his finger on her bum, and the complainant said “No”.^[94]
166. [166]
     The following exchange took place between me and the defendant:

Q: So I think I got confused about something a bit before.  Will you just help me?  So on your evidence – in your evidence – so when you were answering questions that Ms Hilliard asked...

A: Yep.

Q: …you said all you did was, with a finger, rub the area of [KUG’s] anus; that’s correct?

A: Yes.

Q: That’s all you did?

A: That’s all I did.

Q: You never attempted to put your penis into her bottom at all?

A: Never.

Q: OK?

A: No.

Q: And you couldn’t get an erection, could you?

A: No.

Q: OK.  So it’s not the case that you tried to put your penis into her anus and she said, “It hurts”?

A: No.

Q: That didn’t happen?

A: That didn’t happen.^[95]

167. [167]
     The Crown Prosecutor put the complainant’s version to the defendant, which she rejected.
168. [168]
     The defendant initially said that he had penetrated the complainant’s vagina with his tongue.  When I clarified that, he said that he was “licking her clitoris”.^[96]

169. [169]
     The defendant said that he could not recall slapping her vagina with his penis.  He denied that the complainant ever suggested that she should go sleep in Adam Hilliard’s caravan.^[97]

Admissions

170. [170]
     A list of admissions was tendered and became Exhibit 6.  Attached to Exhibit 6 is a schedule entitled “Schedule A” which is a table listing the SMS and call records for 22 December 2018 and 23 December 2018 created from subpoenaed doctor’s records for the complainant’s mobile phone number.

Legal matters

171. [171]
     In a trial by a judge sitting without a jury, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury: s 615B Criminal Code (“the Code”).
172. [172]
     The judgment of a judge in a trial by a judge alone must include the principles of law that has been applied, and the findings of fact on which the judge has relied: s 615C of the Code.
173. [173]
     In this case the defendant has the presumption of innocence.  The onus is at all times on the prosecution to prove the guilt of the defendant; in accordance with the presumption of innocence the defendant does not have to prove any fact let alone his innocence.  The prosecution must prove the charges beyond reasonable doubt, that is, the prosecution must prove each and every element of each offence beyond a reasonable doubt.
174. [174]
     Separate charges have been laid against the defendant, and I must consider each charge separately.  The evidence is not the same in respect of each charge, and the elements of the charges are different.  I have directed myself in accordance with R v Markuleski (2001) 52 NSWLR 82, that if I have a reasonable doubt about the complainant’s credibility and/or reliability in respect of one or more counts, I should have regard to that generally when I consider her evidence on the other counts.
175. [175]
     The defendant’s election to give evidence did not mean that he assumed a responsibility of proving his innocence.  His evidence is added to the evidence called from the prosecution.  I should not regard this as a case of “word against word”.  It is not a question of me making a choice between the evidence of the complainant and the evidence of the defendant.  The prosecution case depends upon me accepting that the evidence of the complainant was true and accurate beyond reasonable doubt, despite the sworn evidence of the defendant.  I have directed myself on the standard direction given to juries in the Supreme and District Courts Criminal Directions Bench Book, and the three possible results that may follow when a defendant gives evidence.
176. [176]
     In respect of the pre-text telephone call, and the conversation between Dr Mahoney and the defendant, the prosecution rely on statements made by the defendant as pointing to his guilt; the defendant points to statements which point to his innocence.  It is a matter for me to consider what weight I give to the statements, bearing in mind that they were not tested by cross-examination.  Of course, the defendant did give evidence and was cross-examined, including about statements he made during the pre-text telephone conversation and the conversation with Dr Mahoney.
177. [177]
     The evidence of preliminary complaints made by the complainant to others has been led to support the credibility of the complainant, to show that she has been consistent in her complaints.  They do not independently prove that the offences occurred, and any inconsistencies in what she said to the preliminary complaint witnesses can be taken into account to detract from her overall credibility and reliability.  I have directed myself in the terms of the standard direction given to juries in respect of preliminary complaint.
178. [178]
     In respect of each charge of rape, a statutory alternative of sexual assault is open, depending on the evidence: s 578(1) of the Code.  In respect of each charge of rape, if I am not satisfied that the element of carnal knowledge had been proved, but I was satisfied beyond reasonable doubt that the complainant did not consent, I would consider whether the prosecution had proved beyond reasonable doubt the alternative charge of sexual assault.
179. [179]
     The complainant gave evidence from a remote witness room, and at the time she did so the courtroom was closed, and all non-essential persons were excluded.  The defendant was placed in a position so that the complainant could not see him.  Those measures were the routine practice of the court in cases of this nature, and no adverse inference is to be drawn against the defendant because those routine measures were used.
180. [180]
     In this case a possible motive to falsely accuse the defendant was raised in cross‑examination.  Even if that motive put forward on behalf of the defence is rejected, that does not mean the complainant is telling the truth.  I bear in mind that any failure or inability on the part of the defence to prove a motive to lie does not establish that such a motive does not exist.  If such a motive existed, the defendant may not know of it.  There may be many reasons why a person may make a false complaint.  It remains for me to satisfy myself whether the complainant is both truthful and reliable.
181. [181]
     In this case expert witnesses gave evidence, in particular Dr Lincoln, Dr Mahoney and Jacqueline Wilson.  It is a matter for me to give such weight to the opinions of the expert witnesses as I think they should be given, having regard in each case to the qualifications of the witnesses and whether I thought them impartial or partial to either side and the extent to which their opinion accords with other facts I find proved.  This is a trial by judge, not a trial by expert.
182. [182]
     In respect of counts 1 to 6, it was accepted by both counsel that the defence of honest and reasonable but mistaken belief, pursuant to s 24 of the Code, arose on the evidence.^[98]  Consequently, if I find that the complainant did not in fact consent to the alleged rapes and alleged sexual assaults, I must consider whether, in the circumstances, the defendant honestly and reasonably believed that the complainant was consenting.  I have directed myself in the terms of the bench book direction number 80 entitled “Mistake of Fact in Sexual Offences”.
183. [183]
     Counsel for the defendant submitted that I should direct myself on a number of unsatisfactory features of the complainant’s evidence, in accordance with Robinson v The Queen (1999) 197 CLR 162.  The features highlighted by counsel for the defendant were as follows:

• The complainant admitted that she was drunk and had consumed cannabis at the time of the alleged events;
• The complainant stated that she had blackouts during the alleged incident, and could not recall the sequence on a number of occasions;
• The complainant conceded in cross-examination that she had gaps in her memory;
• The complainant has been diagnosed with post-traumatic stress disorder;
• The complainant had been the victim of a previous sexual assault, that involved penile penetration in a bedroom and also involved her biting a pillow, and the complainant conceded that she included that fact in her statement about the pillow.  The complainant also conceded that she had a conversation with the defendant prior to the alleged incidents about this earlier sexual assault;
• The complainant said to police that she may have dreamt it, and said to Ms Kilpatrick that her “head was spinning”.

184. [184]
     Having regard to all those circumstances, and the evidence in this case, I accept that I should so direct myself, and that I must scrutinise the evidence of the complainant with great care before arriving at a conclusion of guilt.
185. [185]
     I have directed myself on the elements of each charge.

Consideration

186. [186]
     Aside from the complainant and the defendant, I consider that the witnesses were both credible and reliable.  Clearly the police investigation was inadequate, and a prompt cellebrite examination of the complainant and defendant’s mobile telephones may have afforded relevant evidence.
187. [187]
     It is clear on the evidence that both the complainant and the defendant consumed a prodigious amount of alcohol on the afternoon and evening of 22 December 2018, going into 23 December 2018.  I also accept that both of them consumed cannabis.  All of this clearly has an impact on both the complainant and the defendant’s reliability.
188. [188]
     As in many cases, a useful key is to look for evidence independent of both the complainant and the defendant.  The telephone call between the complainant and the defendant on the evening of 23 December 2018, which is Exhibit 4, is illuminating.  The complainant asks on a number of occasions why the defendant did not stop when she asked him to.  The defendant stated that he could only remember “about half of it” due to how drunk he was.  He stated that he had way too much alcohol.  When the complainant stated that she had asked him to stop, the defendant said “I can’t even remember any of that.  No, no.”  When the complainant said that she needed to know why it happened, the defendant said “Yeah, I wouldn’t be able to tell you why.”
189. [189]
     When Dr Mahoney examined the defendant, the defendant said that he did not recall having sex “because he was pissed and stoned”.  It is unfortunate that Dr Mahoney did not clarify with the defendant what he meant by “sex”.
190. [190]
     Frankly, the defendant was a poor witness.  While I accept that some of his details of the day of 22 December 2018, such as the visit to Wet n Wild, the visit to Fitzy’s, and the visit to the house where the gathering was is generally consistent with other evidence, his account of the sexual activity in the caravan is simply implausible.  There was no evidence that in any way suggested that the complainant before this evening was sexually attracted to the defendant.  There had only been two earlier physical meetings, and while there were numerous contacts over the telephone and Facebook Messenger, it was not suggested to the complainant in any way that she had somehow expressed some desire for the defendant.  Even in the complainant’s drunken and cannabis affected state, I do not consider it plausible that she would engage in the consensual sexual activity that the defendant described in his evidence.
191. [191]
     Aside from this, the specific details given by the defendant in his evidence of the physical intimacy and sexual activity, including the conversations, are completely inconsistent with his statement to the complainant in Exhibit 4 that he did not know what had happened, and that he could only remember “about half of it, about how drunk I was”.  It is also inconsistent with him telling Dr Mahoney that he did not recall having sex because he was “pissed and stoned”.  The defendant’s explanation of what he believed “sex” was, that is “sex is when both persons gets the pleasure out of it.  Its – sex, to me, is – how would you put it – I – I don’t class it as sex.  I would class it as making love.  Sex, to me, means just something on the street that you never met – both want the same thing and that’s it.  There’s no – no connection” borders on the risible.  The defendant said something different in cross-examination when asked about that conversation with Dr Mahoney.  He said “In my book, I didn’t have sex.  I didn’t ejaculate.  She didn’t ejaculate.  That’s sex to me.”^[99]  This is of course contradictory to what he said in evidence-in-chief.
192. [192]
     Another major feature which substantially detracts from the defendant’s credibility is him giving evidence contrary to his instructions, as put to the complainant by a competent and experienced barrister.  At R1-58 and R-59, counsel for the defendant cross-examined the complainant about what was said during the incidents in the bed.  In particular, it was put to the complainant that “the extent of the things that you had said were words to the effect what I have covered, and I’ve just covered, out of completeness: ‘We shouldn’t do this’, ‘this is wrong’, ‘we’re related’, ‘we shouldn’t do it because of this’.  Do you recall – that’s the extent of what you had said to him.  Do you agree, or do you disagree?”.  The complainant agreed with that.
193. [193]
     The defendant in his evidence-in-chief said that while he was kissing the complainant’s belly and vagina, the complainant said “You’re not even hard”.  That was never put to the complainant.^[100]
194. [194]
     In the course of cross-examination of the complainant, counsel for the defendant put the following proposition to the complainant:

“Now, in respect of the anal intercourse, he tried to put his penis into your anus but you said ‘it hurts,’ and he stopped.”

195. [195]
     The defendant in his evidence-in-chief said that he did not put a finger in the complainant’s anus, that he simply rubbed the area of her anus with a finger.  He said that he did not try to put his penis into her anus.^[101]
196. [196]
     In cross-examination, contrary to what was put to the complainant, the defendant denied trying to put his penis into her anus, and the complainant saying “it hurts”.^[102]
197. [197]
     In R v Robinson [1977] Qd R 387, Dunn J, with whom Wanstall ACJ and Douglas J agreed, said this at 393:

“By contrast, cross-examining counsel is concerned with primary facts.  His instructions are as to primary facts, and it is his obligation – a strict obligation – that, if he ‘puts’ occurrences to witnesses, he ‘put’ them in accordance with his instructions.  This being so, the instructions may be inferred from the questions.  If there is a discrepancy in a significant particular (I do not mean a minor or explicable discrepancy, for whilst perfection in communication between client and legal adviser is aimed at, it is not always achieved) between questions based on instructions as inferred and the evidence of the person from whom the instructions must be taken to have come, it seems to me to be quite permissible for a judge to ask the jury to have regard to the discrepancy in evaluating the evidence.”

198. [198]
     Having considered the defendant’s evidence concerning the alleged activities in the bedroom of the caravan, I simply do not accept his evidence.
199. [199]
     The preliminary complaint evidence is general in nature.  Mr Hilliard’s evidence that at around 6.30 am on 23 December 2018, the complainant told him that “your uncle had made a move on her that night”, and then after Mr Hilliard said to her that in essence people do strange things when drunk, the complainant stated specifically “no, he raped me”, reveals that the complainant has made a complaint to a friend at a very early time following the alleged offences.  There was a later conversation that morning where the complainant told Mr Hilliard that the defendant had penetrated her multiple times during the course of the night and morning.
200. [200]
     It is accepted that the complainant did not make a complaint of rape to Kim Kilpatrick in the phone call at 6.42 am on 23 December 2018, which went for 11 minutes and 5 seconds.  There was a later telephone conversation, sometime between 12.00 pm and 1.00 pm, in which the complainant said that her uncle had raped her.
201. [201]
     Felicity McWaters gave evidence of the conversation with the complaint sometime on the evening of 23 December 2018, in which she could tell the complainant was “not okay”.  The complainant became upset, and that prompted Ms McWaters to ask if the defendant had touched her.  The defendant nodded and then in the course of the conversation, “while it was really hard for her to open up” the complainant did say that “he raped me”.
202. [202]
     It is significant that according to Ms McWaters, the complainant told her that the defendant was “forcing her down”.  The complainant’s evidence-in-chief does not describe the defendant forcing her down.  That is an inconsistency.
203. [203]
     It is important to note that Ms McWaters may not have a completely accurate recollection of the conversation.  There is no suggestion that she recorded it or otherwise wrote it down, other than in her police statement.  In respect of preliminary complaints, some inconsistencies are to be expected, following an alleged traumatic incident, and I do not consider this inconsistency by itself detracts from the complainant’s credibility or reliability.
204. [204]
     In the same vein, I do not consider that the absence of genital or anal injuries on the complainant has much relevance.  As Dr Lincoln said, there can be penetration of a women’s vagina or anus, not consensual, which would not leave any injuries.  Such evidence from Dr Lincoln is well recognised in cases of a sexual nature.  Similarly, I do not consider that the lack of DNA evidence in respect of the swabs taken from the complainant, and her underwear, assists me one way or the other.
205. [205]
     Counsel for the defendant placed considerable importance on the data usage records of the complainant’s phone.  It certainly establishes that the mobile telephone of the complainant was accessing various mobile phone towers in the evening of 22 December 2018 to 23 December 2018.  As Mr Qamar said, the records simply can’t distinguish between a deliberate accessing of data by the complainant, and automatic access of data as is commonly the case in mobile phones that have internet access.  Again I do not think this has much significance.
206. [206]
     My overall impression of the complainant was that she was a good witness, who was able to recall details of the day and evening in question despite her intoxication at the time.  She readily made concessions in cross-examination, particularly in respect of details added in evidence-in-chief which were not included in her police statement.  That happens frequently in litigation; further details are elicited in evidence in court, and sometimes police officers do not obtain every single detail that later emerges in court.
207. [207]
     I do not consider that the complainant’s post-traumatic stress disorder, and previous nightmares and flashbacks of an earlier sexual assault detracts from her credibility and reliability in this case.  As was established by the Crown prosecutor in re‑examination, the complainant had not experienced such nightmares or flashbacks for at least ten years.
208. [208]
     I did not find the supposed “motive to lie” to be of any weight.
209. [209]
     I generally found the complainant to be credible, but there are significant problems with the reliability of her evidence.  The most obvious problem is her heavy consumption of liquor and cannabis on the night and early morning in question.  However on the evidence, it seems that heavy drinking and cannabis use were regular activities for the complainant, and no doubt she developed some level of tolerance.
210. [210]
     Another important factor is that the complainant conceded in cross-examination that there were gaps in her memory about what happened that night.^[103] That is to be expected in many cases of this nature where sexual offending occurs when both parties are intoxicated.
211. [211]
     In respect of the complainant telling the police that she might have “dreamt it”, the complainant in re-examination explained that by saying “I woke up and I remembered it instantly and I hoped, I guess.  I really hoped it wasn’t real.”  In the circumstances I consider that to be a reasonable explanation.  In the same vein, the fact that the complainant said that she blacked out a few times during the incident, does not impact on her credibility, but of course impacts on the reliability of her recollection of events.
212. [212]
     The absence of a scratch on the defendant is relevant, but the complainant’s actual description of what she did may not actually have left a scratch.
213. [213]
     Overall, I consider that the complainant gave a credible account of the events, subject to gaps in her memory and blackouts she mentioned.  There is clear doubt about whether there was penile penetration, as the complainant said that the defendant could not get an erection, and was slapping his penis against her vagina in an effort to get an erection.  Initially the complainant said that she could not remember if the defendant successfully put his penis into her vagina,^[104] that he could not maintain his erection, but then said that after the defendant had “fingering my anus” he inserted his penis inside of her vagina.^[105]  On the state of the evidence I could not be satisfied beyond reasonable doubt that there was penile penetration of the complainant’s penis, and find the defendant not guilty of count 3. Due to the vagueness of the evidence, I am not satisfied that the alternative charge is proved.
214. [214]
     In respect of count 4, the allegation that the defendant penetrated the complainant’s vagina with his tongue, the complainant made no mention of any such incident in her evidence-in-chief.  However in cross-examination it was put to the complainant that the defendant never put anything into her vagina, “penis or tongue”.  The complainant simply said that he did, and that he did both.^[106]  There was no re‑examination on this point, and there is no evidence as to how the defendant’s tongue penetrated the complainant’s vagina.
215. [215]
     It is well known that many women use the word “vagina” to generally refer to their genitals.  Of course, anatomically the vagina is the birth canal.  The offence of rape can be committed by penetration, however slight, of either the vagina and the vulva, which is the external genitalia of the female.  I am left in a state of doubt about whether there was legal penetration of either the vagina or vulva.  I find the defendant not guilty on count 4. As the complainant did not give any details of this act, it is not appropriate to convict the defendant on the alternative charge.
216. [216]
     In respect of count 1, I accept the complainant’s evidence that the defendant put his hand between her legs and inserted a finger into her vagina.  Indeed, the defendant admits doing that in his evidence.  I accept the complainant’s evidence that she tried to push the defendant, and grabbed his wrist.  In the evidence in chief the complainant said “stop, you’re my uncle, this can’t happen.”  The complainant in cross-examination conceded that what she actually said in her statement to police on 23 December 2018 was: “You need to stop.  This is not right.” and I accept that the complainant’s recollection would have been much clearer on 23 December 2018.  There’s not much difference between “you need to stop.  This is not right.”  And “Stop, you’re my uncle, this can’t happen”.  On both versions, the complainant is telling the defendant to stop penetrating her vagina.  The difference between the two versions is explicable by the passage of time; the complainant gave evidence almost two years after the event, on 11 November 2020.
217. [217]
     Despite the heavy alcohol consumption and cannabis consumption, which may explain for gaps in the complainant’s memory, and blacking out at times during the incident, I consider that the complainant has a sufficient recollection of this event. Her description of this event is entirely plausible, and consistent with a drunken man in bed with a younger woman trying to taking advantage of her. I am satisfied beyond reasonable doubt that the prosecution have proved every element of Count 1, and I find the defendant guilty on Count 1.
218. [218]
     Count 2 relates to the kissing of the complainant on her lips, neck, and breasts, and the defendant touching her breasts. The complainant said in evidence-in-chief that she “tried to force him away”. She closed her mouth so he couldn’t kiss her.^[107] The complainant said that she was pushing him and trying to wiggle away; she was trying to arch herself so she could get out from under him. The defendant of course in his evidence admitted kissing the complainant from her neck down to her breasts, stomach and then kissing her genitals.
219. [219]
     I accept the complainant’s evidence that she was pushing the defendant and trying to get away from him. She said that his finger was still inside her vagina when he was kissing her on her body. I am satisfied that the complainant did not consent to this activity, and on the complainant’s evidence the defendant could not reasonably have believed that she was consenting. I find the defendant guilty of Count 2.
220. [220]
     Count 5 relates to the alleged attempted anal rape of the complainant. There are the same difficulties with this count as with Count 3, concerning whether the defendant was able to get an erection. No detail is given by the complainant as to how he was trying to insert his penis into her anus, and to be fair to the complainant she was not asked for further details. Of course, it was put to the complainant in cross-examination on two separate occasions that the defendant had tried to put his penis into her anus but that was unsuccessful.^[108]
221. [221]
     I’ve had regard to s 4 of the Code. The prosecution must prove that the defendant, intending to commit anal rape of the complainant, began to put his intention into execution by means adapted to its fulfilment, and manifested his intention by some overt act. It is immaterial, except as so far as regards to punishment, whether the defendant did all that was necessary on his part for completing the commission of that offence, or whether the complete fulfilment of his intention was prevented by circumstances independent of his will, such as an ability to gain an erection.
222. [222]
     It was difficult to follow the sequence of events in the complainant’s evidence. The sequence of events in respect of Counts 1 and 2 were clear enough. At some point during the incident the complainant said that she told the defendant that Adam Hilliard would be there soon, in an attempt to have him stop what he was doing. As a consequence the defendant had allowed her to get up to close the glass door into her caravan. The complainant was unsure when that happened in the sequence of events.^[109]
223. [223]
     The complainant said at the end of her evidence-in-chief that she did not at any stage consent to the actions she described.^[110]
224. [224]
     I’ve struggled with this count. It is not clear whether there was a genuine attempt to penetrate the complainant’s anus. Given the high standard of proof required, at the end of the day I am not satisfied that the prosecution have proved this Count beyond reasonable doubt.
225. [225]
     In respect of Count 6, the complainant initially said in evidence-in-chief that the defendant “started fingering my anus”. Following an objection by defence counsel, the Crown Prosecutor put to the complainant that “the last thing you said was that he penetrated your anus with his fingers”. The complainant agreed with that suggestion, although that was not quite her evidence a few lines before. It is not clear whether this act immediately followed on from the events in Counts 1 and 2. By inference it followed on from the defendant’s slapping his penis against the complainant’s vagina in an effort to obtain an erection. The defendant, in his evidence, said that he had put his finger around her anus, but did not put it inside her anus. I should pause to add that the defendant appeared to be weaving an account of consensual sexual activity around the complainant’s allegations.
226. [226]
     The complainant gave clear evidence that there was penetration of her anus with at least a finger and that she did not consent to it. On the complainant’s evidence, which I accept on this point, there really is no room for the operation of s 24 of the Code. I find the defendant guilty of Count 6.
227. [227]
     In respect of Count 7, the complainant had obviously had a period of sleep before waking up the next morning. When she did awake, she “felt really sick. I was queasy, my head was spinning.” She said that she still felt intoxicated, and such sensations were consistent with having had a very big night.
228. [228]
     Her description of the events of Count 7 does not include any request of the defendant to stop touching her. Her mobile phone was ringing, and she used that as an excuse to get out of the bed to answer the phone. The defendant let her go and she was able to get out of the caravan. The complainant gave evidence that she did not consent to her vagina being penetrated that morning.
229. [229]
     In R v Sunderland [2020] QCA 156, Sofronoff P observed that in respect of the offence of rape, “consent” means consent freely and voluntarily given by a person with the cognitive capacity to give the consent: see s 348 of the Code.
230. [230]
     His Honour the President said this at [44]:

“The giving of consent, in the context of a charge of a sexual offence, involves the making of a representation by one person to another, to the effect that the first person agrees to participate in the sexual act that would otherwise be an offence. Such a representation might be made by words or by actions or by a combination of both. Sometimes the words or actions cannot be understood apart from the surrounding circumstances. In cases where the complainant has communicated neither consent nor dissent by words or actions, the inaction cannot be considered in a vacuum. It too must be considered with all of the relevant circumstances surrounding the sexual act. The circumstances involve matters both past and present. So, inaction in the context of prior acts or words might mean that the complainant has previously given consent which remains operative until withdrawn. This might be established by evidence of relationship or previous interactions between the complainant and accused. So too, inaction, when taken with the other circumstances, may be a manifestation of unwilling submission rather than consent. Indeed, continued or sustained inaction for the duration of a sexual act may be a strong indicator of submission rather than consent. In R v Day Coleridge J said that every consent to an act “involves a submission; but it by no means follows, that a mere submission involves consent”. In R v Wollaston, Kelly CB said that ‘[m]ere submission is not consent, for there may be submission without consent, and while the feelings are repugnant to the act being done. Mere submission is totally different from consent’”. (references omitted)

231. [231]
     Later in his judgment the President gave an example of how a proper direction could have been given to the jury in that case.
232. [232]
     In his evidence, of course, the defendant said that there was no sexual activity when they woke up in the morning, let alone digital penetration of the complainant. I’m satisfied on the evidence that the prosecution have proved that consent was not given, and I find the defendant guilty of Count 7.
233. [233]
     I have made my conclusions on the complainant’s evidence after scrutinising her evidence with great care, and keeping in mind the features that detracted from her evidence. On the evidence of the counts on which I have convicted, I am satisfied beyond reasonable doubt that s 24 has been excluded.