R v Mbilizi[2020] QDCPR 53

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The defendant is charged on a single indictment with two counts of offending against the same complainant: one count of rape pursuant to s 349 of the Criminal Code Act 1899 (Qld) (‘the Code’) and one count of observation in breach of privacy pursuant to s 227A(1) of the Code.

2. [2]
   For count one, the charge is that on 16 February 2019 the defendant raped the complainant. The allegation is that late at night on 15 February 2019 the defendant went to the complainant’s house unannounced. She agreed to let him in. They had consensual sex before falling asleep. When they woke the next morning, the defendant wanted to have sex again. The complainant refused. The defendant then forced her to have penile/vaginal sex without her consent.

3. [3]
   For count two, the charge is that on 23 March 2019 the defendant, without the complainant’s consent, observed the complainant, in circumstances where a reasonable adult would expect to be afforded privacy and the complainant was in a private place. The allegation is that late at night the defendant came to the complainant’s house uninvited and watched her through her bathroom window while she was changing. The defendant then came to her front door and asked to be let in. The complainant refused and called the police.

4. [4]
   The defendant applies pursuant to section 590AA of the Code for an order that the indictment be quashed on the basis that the counts have been improperly joined pursuant to s 567(2). Alternatively, he seeks orders pursuant to s 597A(1) that the counts be tried separately, and that evidence in relation to one count be excluded from the trial of the other.

5. [5]
   The Crown opposes the application.

6. [6]
   For the reasons explained below, I have reached the view that the counts are properly joined, the evidence is cross admissible, there is no basis to order separate trials, and the defendant’s application should be dismissed.

Summary of the prosecution case

7. [7]
   Set out below is a summary of the prosecution case.

8. [8]
   The defendant is a young man of African descent who came to Australia as a refugee. At the time of the alleged offending he was 25 years old. The complainant is also of African descent. She came to Australia in 2006. She was 23 years old at the time of the alleged offences.

9. [9]
   They met in 2018, became friends and were in an intimate relationship for a few months before separating in September 2018. After the relationship ended, they remained friends and occasionally had consensual sexual intercourse. The complainant helped the defendant to find employment, accommodation, to obtain his driver’s licence and generally assisted him integrating into Australian society.

10. [10]
    Early on 15 February the defendant sent the complainant a series of love heart emojis, saying “Please help me please.” The defendant also made several calls to the complainant asking her to take him to work, and to pick him up from work. She refused. Later that day, they exchanged text messages. The complainant texted “Call that girl you’re sleeping with! What use is she if she can’t help you. You know better.” The defendant then sent the complainant several texts asking her to perform oral sex on him and suggesting he come over. The complainant refused on the basis that the defendant was seeing someone else. She said “I’m going to pass. … You have a lovely night. I’m going to sleep now.” The messages ended at about 10pm.

11. [11]
    At about midnight, the defendant turned up unannounced to her home. He asked to be let in. The complainant was scared. She was not expecting him. Eventually she let him in, asking him why he was there and why he had not told her he was coming. He smiled and said “You know why I am here. I can’t go home now. I came with the last bus. I am not leaving.” They went to bed. He repeated his request that she perform oral sex on him. She refused on the basis that he was sleeping with someone else, and that he would not reciprocate. Later that night, they had consensual sexual intercourse, using a condom.

12. [12]
    The next morning the complainant woke feeling very unwell. She told the defendant she felt dizzy and had a really bad headache. The defendant gave her some Nurofen. They lay down together on the bed, talking. The complainant said she did not want to have sex with him that morning. The defendant spoke to her about how his friend had raped a girl back in Uganda. The complainant gave minimal responses and largely ignored him, while scrolling through her mobile phone. The defendant tried to get on top of her. The complainant got up very quickly. She saw the defendant kneeling on the bed with his boxer shorts partly down, his erect penis exposed, wearing a condom. The complainant said that she did not want to have sex and that she meant it. She told him she was serious. The defendant tackled the complainant and pushed her backwards onto her back on the bed. He restrained her on the bed, holding both her wrists against her chest, pushing down heavily with his body weight. She tried to fight him off and push him off but was unable to. She said “get off me, I don’t want to have sex with you. Let go of my hands”. The defendant would not make eye contact with her. He used his leg to separate her legs and his lower body to insert his penis into her vagina. While he was having sex with the complainant, she said to him “please don’t do this”. She tried to manoeuvre him to a position where she could get away, but was unable to. The sex was harder than usual and she felt pain. He ejaculated and went to the bathroom. The complainant was bleeding from her vagina.

13. [13]
    The complainant stayed in bed and pulled the blanket over her head. Using her mobile phone, the complainant recorded her conversation with the defendant. It included the following exchange:

Complainant:  I told you I did not want to have sex. We were talking. Applicant: We had sex yesterday.

Complainant:Yes we did.

Applicant:The day you want the time you want. This is my time I want.

Complainant:And I didn’t want it.

Applicant:And that is your problem.

14. [14]
    The complainant repeatedly asked the defendant to leave. He eventually did so.

15. [15]
    On 18 February 2019 the complainant disclosed the offending to her doctor. She reported the matter to police without making a formal complaint.

16. [16]
    On 18 and 19 February 2019 the complainant sent text messages to the defendant accusing him of raping her. They had further sporadic contact by text.

17. [17]
    On 16 March 2019, the complainant sent the defendant a text message which read “For goodness sake stop calling me and stay away!” Later that day, the defendant sent the complainant a text message which read “I coming”. She did not reply.

18. [18]
    On 19 March 2019, the defendant sent the complainant a text message which read “I’m at like street if you like I can come to visit you now”. She did not reply.

19. [19]
    On 21 March 2019, the defendant sent the complainant a text message which read “Hey I lost my key can new give me a special to stay tonight please I will sleep on the floor”. She did not reply.

20. [20]
    At approximately 11pm on 23 March 2019, the complainant was leaving university when she received a message from the defendant that he was “coming over”. She did not respond.

21. [21]
    When she arrived home, she went to her bedroom to get changed. Her bathroom door and bathroom window were open. She saw the defendant watching her through the bathroom window as she got changed. Upon her seeing him, the defendant ran away.

22. [22]
    The complainant then heard rattling outside her front door. She asked who was there and the defendant identified himself and said “just let me in”. The complainant refused and told him to leave but he continued asking her to open the door for him. She called 000.

23. [23]
    He continued sending the complainant text messages asking to stay the night. She again accused him of raping her and he replied “please if I can come in and we can talk about it please”. Police attended and located the defendant outside the complainant’s home.

24. [24]
    On 22 July 2019 the complainant made a formal complaint to police.

Are the counts validly joined?

25. [25]
    Pursuant to section 567(2) of the Code:

“Charges for more than one indictable offence may be joined in the same indictment against the same person if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose.”

26. [26]
    All of the separate limbs of that test are in issue.

27. [27]
    With respect to the meaning of the expression “a series of offences of the same or similar character”, the relevant principles were set out by the Court of Appeal in R v Cranston [1988] 1 Qd R 159 at 164-165 (‘Cranston’):

“It was said that the further requirement of a “series” was that some nexus should be involved between the offences…  It seems clear that the requirement that nexus should exist is an additional requirement upon the requirement of “similar character” and, however imprecise they may be, these words call for the administration of a test in which time, place and the other circumstances of the offences as well as their legal character or category are all factors which are considered for the purpose of seeing whether the necessary features of similarity and connection are present.”

28. [28]
    Even in offences of similar legal character: “… It was still necessary that there be some nexus or connection between them in order to establish a series. That nexus may be constituted by factual similarity or may be demonstrated by the admissibility of the same evidence in respect of the different offences.”: R v MAY [2007] QCA 333 per Holmes J at 10 [35].

29. [29]
    It is well established that a series in this context can consist of only two offences: De Jesus v R (1986) 61 ALJR  1 at 15  (‘De Jesus’); Andrews v R [1987] 1 Qd R 21 at 26; Iongi v R (1993) 69 A Crim R 441.

30. [30]
    Here, the two offences are not of the same legal character. In my view, they are also not of a similar legal character.

31. [31]
    Count one charges the sexual offence of rape whereas count two charges an offence pursuant to s 227A, observation in breach of privacy. That offence is found in Chapter 22 of the Code “Offences against morality”, which includes some sexual offences such as indecent treatment, carnal knowledge, and child exploitation offences, but not rape. A Section 227A offence is not defined as a “sexual offence” pursuant to s 4 of the Code, and Schedule 1 of the Corrective Services Act 2006, whereas the offence of rape is. An offence under s 227A(1) involves voyeurism. The motive for the offence may be, but is not necessarily, sexual.  In my view, it is not unequivocally a sexual offence, although the motive and facts of the particular case may render it so.

32. [32]
    Section 227A was inserted into the Code by the Justice and Other Legislation Amendment Bill 2005. The Explanatory Notes for this Bill state at 20-21:

“Section 227A creates three offences in relation to observations or recordings made in breach of privacy. The new offences are designed to address the ‘voyeuristic’ observation or recording of another person. In each case the maximum penalty is two years imprisonment [later increased to three years], which is the same as that applying to the offence of indecent acts in section 227. … The motivation of the observer is irrelevant, that is, whether the observer’s motives are for sexual gratification, to harass the person observed, or for a commercial purpose. Including an objective test – that in the circumstances, a reasonable adult would expect to be afforded privacy – ensures that the offences are directed at conduct which any reasonable person would find breaches accepted notions of privacy and where a person would rightly expect their privacy to be protected by the criminal law. … The first offence is directed at the observation or recording of a person in a private place (defined in section 207A), such as a bathroom, toilet, bedroom or change room. The person under observation need not actually be engaged in a private act at the time.” [emphasis added]

33. [33]
    For count two, the offence under s 227A(1), the Crown must prove the following elements:

1. The defendant observed the complainant in circumstances where a reasonable adult would expect to be afforded privacy;

2. The observation was done without the complainant’s consent; and

3. The complainant was in a private place and the observation was made for the purpose of observing a private act. 

34. [34]
    Consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent: s 227A(3).  That definition mirrors the definition of consent in s 348(1) for rape, although it does not include the features in s 348(2).

35. [35]
    Private place means a place where a person might reasonably be expected to be engaging in a private act: s 207A. 

36. [36]
    Private act, for a person, means showering or bathing or using the toilet or another activity when the person is in a state of undress; or intimate sexual activity that is not ordinarily done in public: s 207A. 

37. [37]
    State of undress is defined to include a person wearing only underwear or only some outer garments so that some of the person’s underwear is not covered by an outer garment: s 207A.

38. [38]
    The two offences (pursuant to s 348 and s 227A(1) of the Code) are patently different in their nature and gravity and they occurred on separate dates. The Crown submits that the offences are “founded on the same facts” because they are traceable to common events or had a “common factual origin”: see Cranston at 162. In my view, that is a stretch. I am not satisfied that the offences are “founded on the same facts”. 

39. [39]
    However, the following features are common to both offences:

1. They occurred within a relatively short space of time (five weeks);

2. they involve the same complainant;

3. they involve the defendant acting upon his sexual interest despite the complainant communicating in words and actions that she did not consent to the sexual activity or proposed sexual activity;

4. they occurred at the same location; and

5. they involved the defendant turning up at the complainant’s home late at night, uninvited and unannounced.

40. [40]
    Based on the similarities identified above, I am satisfied that the offences are, or form part of, a “series of offences of … similar character” and that there is a nexus between the offences in their time, place and other circumstances. That nexus is constituted by factual similarity but also by the admissibility of the same evidence in respect of the other offence. For the reasons explained below, I consider that the evidence of each count is cross admissible.

41. [41]
    In the result, it is unnecessary to determine whether the offences satisfy the other limb of the test, “a series of offences committed in the prosecution of a single purpose”, although I consider this point arguable.

42. [42]
    I am satisfied that the charges are properly joined. The primary relief sought by the defendant (that the indictment be quashed) must be rejected.

Is the evidence cross admissible?

43. [43]
    Even where counts are properly joined, severance may be appropriate. If the evidence admissible on one count is not admissible on the other count and there is a consequent risk of impermissible prejudice to an accused in the conduct of a single trial on both counts, and there usually is such a risk in sexual cases, separate trials should be ordered: De Jesus at 9-10.

44. [44]
    The defendant submits that the counts are not cross admissible on the basis of similar fact evidence and that they do not satisfy the relevant high threshold set out in the authorities. He submits that the prosecution cannot establish a high degree of probative cogency with respect to the evidence of both counts so as to justify the joinder of both counts on the same indictment. He emphasises that count two involves post offence conduct of a quite different nature to count one.

45. [45]
    The Crown submits that the evidence of each count is cross admissible as so called similar fact evidence, in that it satisfies the test in Pfennig v The Queen (1995) 182 CLR 461 (‘Pfennig’), and therefore no unfair prejudice arises from having both charges heard together. 

46. [46]
    With respect to count one, the factual issues in dispute are whether the complainant consented to having sex on 16 February 2019, and whether the defendant’s sexual conduct occurred in the circumstances and in the manner described by the complainant in her evidence.

47. [47]
    With respect to count two, the defendant did not identify which factual issues would be in dispute at trial. It is possible that all of the elements of that offence may be in issue, including lack of consent, the purpose of the observation and whether the defendant’s acts occurred in the circumstances and in the manner described by the complainant in her evidence.

The purpose of leading the evidence

48. [48]
    The Crown seeks to lead evidence of count one, the alleged rape, in support of count two, to demonstrate motive and propensity. That not only did the defendant have a motive to commit the offence because of his ongoing sexual interest in the complainant, but that he was prepared to act upon it in a certain way. That is, by going to her home and looking in her bathroom window while she was changing, despite her lack of consent, her earlier accusation of rape and her making it clear that she wished to have no further contact with him. It is said to be admissible to show why the defendant was prepared to resort to voyeuristic behaviour in circumstances where, in the preceding week, he had contacted her several times and she had not replied.

49. [49]
    I accept that submission and would add this. It is also relevant in two other ways. First, to whether the observation was made by the defendant for the purpose of observing a private act. Second, as a form of relationship evidence, to remove the implausibility that might otherwise be attributed to the complainant’s account of count two, if that offending were considered alone and thought to be an isolated incident. “Such evidence is admitted because the interests of justice require that the jury be able to understand the Crown case by seeing the case in its true factual context and not with an unrealistically truncated form. If such evidence were to be excluded, the jury would be denied the real factual basis upon which to understand aspects of the case that the complainant’s and the accused’s actual history might not explain.”: R v McNeish [2019] QCA 191 at 7 [33] (‘McNiesh’).  The evidence is relevant because, if it is believed, the facts proved by the evidence render the commission of the charged offence more probable

50. [50]
    The Crown seeks to lead evidence of count two in support of count one, the alleged rape, to demonstrate that the defendant had a sexual interest in the complainant which he was willing to act upon, including by using force, despite her express communications that she did not consent. The evidence of count two is said to demonstrate the defendant’s ongoing disregard for the complainant’s express wishes. That he was prepared to act upon his sexual desires towards the complainant by persisting in sexual conduct even in the face of manifest lack of consent.

51. [51]
    Where consent is in issue, proof of that will depend on the state of mind of the complainant and whether she communicated that to the defendant. However consent is never an isolated issue, and is not the only issue in this case. The defendant’s conduct – how the complainant came to have non-consensual sex with the defendant and how the defendant came to be looking through the complainant’s bathroom window late at night five weeks later – is also in issue.

52. [52]
    Adopting by analogy the reasoning of the Court of Appeal in R v Little [2018] QCA 113 at 9 – 10 [24]-[25] and 14 [36] (‘Little’), R v Phillips (2006) 225 CLR 303 (‘Phillips’) may be distinguished on the basis that “[i]n that case, unlike in this case, the similar fact evidence was not tendered for the purpose of proving that the defendant engaged in any conduct. It appears that the similar fact evidence was tendered to prove only that the complainant did not consent. … [T]he similar fact evidence is not rendered inadmissible merely because it indirectly proves that the complainant did not consent to the sexual acts permitted by the appellant.”  Of course, Phillips was a multiple complainant case, and Little involved a single complainant on indictment but similar fact evidence of previous convictions involving other complainants, whereas this is a single complainant case. Nonetheless the reasoning with respective to consent and proof of the defendant’s conduct is apt.

Does it satisfy the Pfennig test?

53. [53]
    Whatever might be the purpose of leading the evidence, before it could be admitted it must satisfy the “Pfennig test”. Because propensity evidence has a prejudicial capacity of a high order, it should not be admitted if there is a “rational view of the evidence that is consistent with the innocence of the accused”, “rational” in this context meaning “reasonable”. See Pfennig at 483; HML v The Queen (2008) 235 CLR 334 at 383 [107], 385 [118] and 398 [170] (‘HML’).  The Pfennig test applies to evidence of conduct that does not constitute a charged sexual offence that is adduced to prove that the accused had a sexual interest in the complainant in a charge of a sexual offence. See HML per Hayne J (Gummow and Kirby JJ agreeing) at 384 [111]-[112] and 399-400 [171]-[176]. 

54. [54]
    The fact that the evidence about the other offending (on count two) does not involve the same offence as count one, might weaken the propensity evidence because it is equivocal on the issue of rape, but that does not of itself render it inadmissible. Nor does it matter that the acts the subject of the other offence took place after the charged offence in count one. Similar fact evidence and propensity evidence have been held to be admissible where the evidence relates to facts and circumstances that happened after the charged offence occurred. See Pfennig ; R v PBB [2018] QCA 214. See also Cranston at 165 where the court accepted that assault offences and a robbery offence were properly joined with a sexual offence where they were all committed on the same complainant over the course of several separate days in separate incidents (counts 2 to 7 involving the complainant Baggio).

55. [55]
    When the Pfennig test is applied to evidence that the accused has committed uncharged sexual offences against a single complainant, the test will usually, if not invariably, be satisfied because there can be no rational explanation for the accused’s uncharged acts, which for this purpose the judge must assume the jury will accept happened, other than guilt: HML at [171]. In short, their tendency as proof, if accepted, is unequivocal. 

56. [56]
    In R v Bauer (a pseudonym) (2018) 92 ALJR 846 (‘Bauer’) the High Court said:

“[48] Henceforth, it should be understood that a complainant’s evidence of an accused’s uncharged acts in relation to him or her (including acts which, although not themselves necessarily criminal offences, are probative of the existence of the accused having had a sexual interest in the complainant on which the accused has acted) may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant whether or not the uncharged acts have about them some special feature of the kind mentioned in IMM or exhibit a special, particular or unusual feature of the kind described in Hughes.

…

[50] Since proof of an accused’s commission of a sexual offence against a complainant on one occasion makes it more likely that the accused may have committed another, generally similar sexual offence against the complainant on another occasion, at least where the two are not too far separated in point of time, where an accused is charged with a number of counts of generally similar sexual offences against a single complainant the several counts may ordinarily be joined in a single indictment and so tried together. In such cases, evidence of each charged act is admissible as circumstantial evidence in proof of each other charged act and, for the same reason, evidence of each uncharged act is admissible in proof of each charged act.

[51] The juridical basis of cross-admissibility of evidence of charged acts and of the admissibility of evidence of uncharged acts in such cases rests on the “very high probative value” of the kind of evidence which results from ordinary human experience that, where a person is sexually attracted to another and has acted on that sexual attraction and the opportunity presents itself to do so again, he or she will seek to gratify his or her sexual attraction to that other person by engaging in sexual acts of various kinds with that person.”

57. [57]
    There is no requirement that there be some “special feature” of the evidence of uncharged acts involving a single complainant: Bauer at [48], [52].  In sexual offence cases, it is not necessary that the particular acts that constitute the uncharged acts and the particular acts that constitute the charged offence be of the same kind: McNeish ibid at [40].  Evidence of uncharged sexual offences may be relevant and highly cogent even if the acts that constitute those offences are different from the charged offence.

58. [58]
    The question whether the evidence is admissible must be answered in the context of the prosecution case, and on the assumption that the jury accepts the evidence as true and that the prosecution case may be accepted by the jury.

59. [59]
    It is necessary to consider whether the probative force of the evidence, upon the assumption that the jury will accept it, is sufficient to overcome its prejudicial effect. In this context, “prejudicial effect” is the use of the evidence by the jury for an impermissible purpose or in a logically irrational manner. For example, the use of the evidence by the jury to reason that, because the accused is guilty of one offence then he must be guilty of the other. Put another way, the question is whether the interests of justice require the evidence to be admitted despite the risk of its misuse: per McHugh J in Pfennig at 528.

60. [60]
    The evidence does not have to be so strong that it demonstrates guilt on its own: Phillips at [63].  The propensity evidence must be viewed in the context of the prosecution case.

Is there a rational view of the evidence (of count two) consistent with innocence?

61. [61]
    The defendant submits that the evidence of count two is equivocal in nature and it is not inherently sexual. He submits that the evidence must be excluded because, assuming it is true and that the prosecution case is accepted by the jury, there is a reasonable view of it consistent with the accused’s innocence of the charge.  Defence counsel contends that the defendant’s conduct on count two is explicable as someone simply attending the complainant’s house to talk to her or even optimistically to engage in consensual sexual activity.  He emphasises that the conduct in count two occurred in circumstances where there was evidence that the defendant had in the past turned up at the complainant’s home uninvited.

62. [62]
    The defendant’s point is arguable, or even superficially attractive. But when all of the evidence is considered in the context of the prosecution case, and on the assumption that the jury accepts the evidence as true, the submission does not withstand careful scrutiny. There are several reasons for this.

63. [63]
    There is no evidence that the defendant had a practice of turning up unannounced at night just to talk to the complainant or for a non-sexual purpose. The only evidence that the defendant had in the past turned up at the complainant’s home unannounced and uninvited comes from two sources, both of which appear to have a sexual context. The first is a text message from the complainant to the defendant on 16 January 2019 in which she said “I’m seeing someone so no more coming to my house unannounced and no Jigi jigi. Boundaries!”. The second is from the evening before the alleged rape, 15 February 2019. The defendant sent the complainant five text messages asking her to perform oral sex on him, and suggesting he come over. The complainant refused on the basis that the defendant was seeing someone else. The defendant arrived at her home late that night, uninvited, and asked to be let in. Later they had sex.

64. [64]
    After the events of count one, the complainant accused the defendant of rape. On 18 February 2019, the complainant sent the defendant multiple text messages accusing him of raping her, asking why he did it, asking why he did not stop when she said “no”, saying that he had forced himself on her, and that she was going to report it to police. The defendant initially gave non-responsive answers. He even persisted in requests for oral sex saying “if you give me blowjob will come now”. The complainant accused him of ignoring her and thinking that she was joking. Later, the defendant denied that it was rape. The complainant ended the exchange saying “from now on please stay away from me.” The next day she texted him again saying “Admit that you raped me on Saturday morning … I don’t wish to speak to you on the phone but I’m willing to text with you.”.

65. [65]
    In late February and early March the defendant repeatedly texted the complainant asking her to send him a cover letter for a job application. She said she did not have it. On 15 March the defendant texted “I’m coming to pick you my carver [cover] letter please now”.

66. [66]
    On 16 March 2019 the complainant replied “For goodness sake stop calling me and stay away! … AND LEAVE ME THE FUCK ALONE !!!!!!!!!!!!!!!!!!!!!!!!!!!!”. She sent further messages to similar effect. The defendant responded: “I miss you. When can we have fun”. The complainant replied “When you’re dead and buried. (skull emojis).” That was the last message the complainant sent. It was one week before the events of count two.

67. [67]
    Over the next week, the defendant continued to send the complainant messages, to which she did not respond. On 16 March, he texted “I coming”. On 19 March, he texted “I miss you.”, “I’m at like street if you like I can come to visit you now”, “Hey I lost my key can new give me a special to stay tonight please I will sleep on the floor”.

68. [68]
    The sequence of events on the night in question, 23 March 2019, is important. At 10:59pm the defendant texted the complainant “I’m coming”. She saw the message but did not respond. She thought the defendant was bluffing and did not think he would turn up at her home. The complainant arrived home from university at about 11:30pm. She was changing. The bathroom door was open. She felt someone watching her. She looked at the bathroom window and saw the defendant watching her change. When he saw her look at him, he started running. She closed the bathroom door and finished changing. She heard rattling at the door and asked “who is it?”. The defendant identified himself and asked to be let in. The following exchange occurred:

Complainant: You shouldn’t be here, what are you doing here at this time?

Defendant: Just let me in.

Complainant: No. I am not going to let you in. Why are you here? What do you want? You shouldn’t be here. Leave.

Defendant: Please open the door for me.

Complainant: Nah, I’m not going to open the door for you. You need to leave. You shouldn’t be here.

The complainant called 000. She was shaking and scared. She told them that the person who raped her was at the front door and asked them to come. They asked for his name. She was so scared that she could not speak and could not remember how to spell his full name. The operator said that if she did not give more information, she could not send police. The complainant hung up. She went to the front window and told the defendant “Please leave. I have called the police and they are on their way.” The police called her back. The complainant went to the bathroom and was finally able to spell the defendant’s full name. They told her to stay inside and that police were on their way. While the complainant was on the phone to police, the defendant texted her “I’m sorry please. Open for me. Please let me in.” The complainant spoke to the defendant, telling him “I have called police, if you want to wait for them you can.” She then heard his footsteps running away. The complainant opened the window and could not see him any longer. There was then a further text exchange:

Complainant: Where are you going? What are you sorry for?

Defendant: Just to come to your house and I didn’t tell you. But please.

Complainant: Please what?

Defendant: If I can sleep at your place because I don’t know it I can found a bus now please. And the rain start.

Complainant: You raped me and you come here like nothing happened. You sexually assaulted me and I’m just supposed to forget like nothing happened?

Defendant: Please if I can come in and we can talk about it please. I’m so scared of the place I’m please.

Complainant: Okay come.

Defendant: Please I’m sorry. Please. Police teke me. Thank you.

The defendant was picked up by police near the complainant’s house. He said he was in the area visiting his girlfriend.

69. [69]
    A number of things are apparent from this sequence of events.

70. [70]
    First, the defendant turned up at the complainant’s home late at night not only uninvited but in circumstances where she had made it very clear that she did not want to see or speak to him.

71. [71]
    Second, the defendant made no attempt to knock on the door or speak to the complainant. Instead, he peered in her bathroom window.

72. [72]
    Third, the defendant ran away from the house twice. Initially, when the complainant saw him peering through the window, and later, when she told him that she had called police. The Crown may seek to rely upon evidence of his flight as post-offence conduct indicative of a consciousness of guilt, with it being left to the jury to consider whether the inference of consciousness of guilt can be safely drawn. If so, a jury direction, appropriately tailored to the particular case, would be required.

73. [73]
    Fourth, when the complainant asked him why he was there, he did not respond. He did not say it was to talk to her, nor did he give some innocent explanation. He simply said “let me in”.

74. [74]
    Fifth, the defendant texted that he wanted to “talk” only after the complainant refused to let him in, told him she had called police and repeated the accusation of rape.

75. [75]
    If the jury accepted the complainant’s evidence and the balance of the prosecution case, it showed that:

1. the defendant continued to be sexually attracted to the complainant after the end of their relationship;

2. the defendant was prepared to act on that sexual interest to gratify his own sexual desires despite the complainant’s repeated protestations that she did not want to have sex with him;

3. the defendant was prepared to use force to overcome her resistance;

4. by his comment after the alleged rape “that is your problem”, the defendant considered himself entitled to so act; and

5. despite the complainant’s explicit statements that she no longer wished to have any contact with him, the defendant was prepared to persist in pursuing his sexual interest by going to her house late at night, uninvited, for the purpose of sexual gratification.

76. [76]
    I am unable to discern any rational or reasonable basis for thinking that the defendant may have gone to the complainant’s house at midnight, uninvited, merely to talk to her, or even with an optimistic but misguided belief that she might have consensual sexual intercourse with her. There is no evidence upon which a jury, acting rationally or reasonably, could be satisfied of either of these inferences.

77. [77]
    Understood in the context of the Crown case, the defendant’s alleged conduct on count two is explicable only as a manifestation of his continuing sexual interest in the complainant and his preparedness to act on that sexual interest, despite the complainant making it clear that she did not consent to any sexual conduct and that she no longer wished to have any contact with him.

78. [78]
    The evidence is therefore admissible to prove that the defendant had such an ongoing sexual interest in the complainant as to make it more likely that he committed the earlier offence alleged of rape.

79. [79]
    Any risk of impermissible use or prejudicial effect of the evidence can be adequately met by the usual jury directions with which the jury is presumed to comply.

80. [80]
    In all the circumstances, I am satisfied that the evidence is cross admissible, and that there is no basis upon which the counts should be severed.

Conclusion and orders

81. [81]
    I order that the defendant’s application is dismissed.^[1]