[2024] SADC 16

Prosecution: R Counsel: DR P SALU - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: M, AJ Counsel: MR E JOLLY - Solicitor: CARTER & CO LAWYERS Hearing Date/s: 15/01/2024 to 18/01/2024 File No/s: DCCRM-22-1080 B DISTRICT COURT OF SOUTH AUSTRALIA (Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v AJM [2024] SADC 16 Reasons for the Verdict of her Honour Judge Deuter 26 February 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT The accused is charged with one count of rape pursuant to s 48(1) of the Criminal Law Consolidation Act, 1935. The accused and the complainant were in a relationship for several months in 2019. The complainant alleges that one evening, after they withdrew their consent during penile/vaginal sexual intercourse, the accused ignored their requests to stop and continued to have sex with them until he ejaculated. The accused pleaded not guilty and gave evidence on oath denying the offending. The case is one of ‘oath against oath’ regarding whether the prosecution has proved that the accused knew, or was recklessly indifferent, to the withdrawal of consent by the complainant to sexual intercourse continuing. The prosecution case is based upon the acceptance of the reliability and credibility of the evidence of the complainant. Held: The offending has not been proved beyond reasonable doubt. Verdict: Not guilty. Juries Act 1927 (SA); Criminal Law Consolidation Act 1935 (SA); Evidence Act 1929 (SA), referred to. R v Calides (1983) 34 SASR 355; Douglass v R (2012) 290 ALR, 699; Watson v Foxman the Supreme Court of NSW (1995) 49 NSWLR 315 at 319, considered. -- 1 of 35 -- -- 2 of 35 -- R v AJM [2024] SADC 16 1 The defendant is charged on an information dated 28 October 2022, with one count of raping his partner with whom he was living in a domestic relationship. 2 Particulars of the offence are: Statement of Offence Rape. (Section 48(1) of the Criminal Law Consolidation Act, 1935 (SA)). Particulars of Offence AJM between the 30th day of August 2019 and the 2nd day of September 2019 at Christies Beach, continued to engage in sexual intercourse with CJB by inserting his penis into her vagina after her consent had been withdrawn, knowing or being recklessly indifferent to the fact she had withdrawn her consent. 3 The complainant CJB asked to be identified by non-gender pronouns during the trial. I will continue to use those pronouns in these reasons. Trial by Judge alone 4 The defendant elected to be tried by judge alone pursuant to section 7 of the Juries Act 1927 (SA). Legal principles 5 The defendant is presumed to be innocent of the charge. He is not required to prove anything. The Prosecution is required to prove the charge and to do so beyond reasonable doubt. The Prosecution must also exclude any matter raised by the defendant that might affect proof of the charge, as a reasonable possibility. Elements of the offence of rape 6 A person is guilty of the offence of rape when they engage or continue to engage in an act of sexual intercourse with another person, who does not consent to that act of sexual intercourse, or has withdrawn consent to the sexual intercourse, and the person knows that the person is not consenting to the act of sexual intercourse or is recklessly indifferent to the fact that they are not consenting to the act of sexual intercourse. 7 The offence of rape consists of three elements, each of which must be proved by the Prosecution beyond reasonable doubt before a defendant can be found guilty. 8 The elements of the offence of rape are: 1. The defendant engaged in an act of sexual intercourse with the complainant; -- 3 of 35 -- [2024] SADC 16 2 2. The complainant was not consenting, or had withdrawn their consent, to the act of sexual intercourse. Consent means the free and voluntary engagement in sexual activity. 3. The defendant either knew that the complainant was not consenting, or had withdrawn their consent, or was recklessly indifferent to the fact that the complainant was not consenting, or had withdrawn consent, to the act of sexual intercourse (as the case may be). 9 A defendant is recklessly indifferent to the fact that the complainant does not consent to an act of sexual intercourse, or has withdrawn consent to an act of sexual intercourse, if the defendant: (a) is aware of the possibility that the complainant might not be consenting to the act, or has withdrawn consent to the act, but decides to proceed regardless of that possibility; or (b) is aware of the possibility that the complainant might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the complainant does in fact consent, or has in fact withdrawn consent to the act before deciding to proceed; or (c) does not give any thought as to whether or not the complainant is consenting to the act or has withdrawn consent to the act before deciding to proceed. Each of the elements of the offence of rape were in dispute at trial. 10 The Prosecution relies upon the evidence of CJB, as the victim of the alleged offending; inferences said to arise from the evidence; and the agreed facts. I remind myself that the Prosecution bears the onus of satisfying the Court that the defendant is guilty of the offence of rape beyond reasonable doubt. It is not for the defendant to prove anything. Legal Directions 11 The standard directions about which I need to direct myself in considering this matter as a Judge sitting without a jury, and which I must keep in mind when considering my verdict, are as follows: 1. An accused person is presumed innocent of any charge on an information unless and until guilt on that charge has been proved beyond reasonable doubt. 2. The prosecution bears the burden of proving the charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of the offence. -- 4 of 35 -- [2024] SADC 16 3 3. The defendant does not carry any onus of proof and to the extent that they might put forward a defence, they do not have to prove it and the failure by me to accept any such defence does not, in any way, detract from the onus upon the Prosecution to prove its case beyond reasonable doubt. 4. It is not sufficient for the Prosecution to show a mere suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. If I am left with a reasonable doubt as to the establishment of any element of the charge, then I must give the defendant the benefit of that doubt and find him not guilty. 5. I have reminded myself of the usual directions given to juries concerning the proper approach to assessing witnesses who give evidence, their credibility and reliability, and the proper approach to drawing inferences of fact. 12 I also direct myself in relation to the directions set out in s34N of the Evidence Act 1929 (SA) (the Evidence Act) where lack of consent to a particular sexual activity is in issue. 13 The defendant elected to give evidence and denied the charged offending. He was not obliged to give evidence and he could have exercised his right to remain silent. The evidence of the defendant is to be assessed in the same way as I assess the evidence of the CJB. The case was essentially ‘oath against oath’. 14 The task before me is to determine whether or not the Prosecution have proved the elements of the charge beyond reasonable doubt. I cannot reach such a conclusion about the guilt of the defendant unless I am also satisfied that his version of what happened is not true or, it could not reasonably possibly be true. It is not sufficient that, as the trier of fact, I prefer CJB’s evidence.1 15 This is not a contest between two versions. If in relation to the charged offending I cannot be satisfied that the defendant’s version of events could reasonably possibly be true, that of course does not mean that I must accept CJB’s version of those events, or what appears to be CJB’s version. If I am satisfied that the defendant’s version of events could not reasonably possibly be true, I must put that evidence to one side. It is still necessary for me to address the evidence and each of the elements of the offence with which he has been charged, and to reach a decision regarding whether I am satisfied that each of those elements have been proved to my satisfaction beyond reasonable doubt.2 The making of this assessment requires no comparison between alternatives other than whether or not I am persuaded beyond reasonable doubt of the guilt of the defendant. 16 If I am not satisfied that the elements of the charged offence of rape have been proved beyond reasonable doubt, I must find the defendant not guilty. If after 1 R v Calides (1983) 34 SASR 355. 2 Douglass v R (2012) 290 ALR, 699. -- 5 of 35 -- [2024] SADC 16 4 a full and careful consideration, I am unable to decide where the truth lies, the Prosecution will have fallen short of proving its case beyond reasonable doubt and my verdict would be not guilty. In so saying, I do not assume that the defendant in any way accepts any burden of proof on any basis. 17 The complainant and the defendant were the only persons to give evidence. I am to assess and evaluate the evidence of CJB and the defendant in the same way. However, part of the relevance of the version of events put forward by the defendant is to consider whether it assists in casting a reasonable doubt on the Prosecution case. Agreed Facts 18 The following facts are agreed by the parties.3 1. The investigating officer contacted the individuals who shared a house with the complainant and accused; Daniella Benetta and Brooke Quigley at Old Noarlunga. Neither were prepared to give a statement or attend at court. 2. The investigating officer contacted the individuals who shared a house with the complainant and accused; Jessica-Anne Lock and Peter James Locke at Christies Beach. Neither were prepared to give a statement or attend at court. 3. Other witnesses identified by the complainant as present at events; Ashleigh Mazzone, Michael Paterson, Rachel Lees, Taylor Aguis and Shannon Forrest / Lee were contacted by the investigating officer. None of the above were prepared to give a statement or attend at court. 4. The initial complaint witness nominated by the complainant Crystal Burgess provided a statement but has avoided police contact and will not attend court. 19 The Agreed Facts set out the circumstances by which no complaint evidence was called by the Prosecution, nor any corroborative evidence. I direct myself that the failure to call evidence of complaint is not probative in relation to CJB’s credibility or consistency of conduct.4 20 In the circumstances of this trial, it is very important to remind myself that it is not a matter of simply comparing the evidence of CJB and the defendant. The onus remains on the Prosecution to prove the facts and circumstances of the offending beyond reasonable doubt. Background 21 It is appropriate that I give some background of the facts upon which the Prosecution is based.5 I will then consider the evidence led by the Prosecution. In so doing, I again remind myself that no onus falls upon the defendant. 3 Tendered as Exhibit P2. 4 Section 34M of the Evidence Act. 5 These facts are not in dispute, unless otherwise set out. -- 6 of 35 -- [2024] SADC 16 5 22 CJB, was born on 17 May 1999. They were 19 years of age when they first met the defendant via the online dating application ‘Tinder’ in March 2019. The defendant, who was born on 31 August 1987, was 31 years of age. A relationship quickly developed between CJB and the defendant. They met and a sexual relationship started. This included CJB staying at the defendant’s rented accommodation, from time to time. This occurred only months after CJB had just ended a relationship that had lasted five and a half years.6 23 Soon after meeting the defendant CJB moved to the far north area of South Australia for work. After four weeks, they returned to Adelaide and moved in to live with the defendant and his house mates, Daniella Benetta and Brooke Quigley at a house in Old Noarlunga. Although the exact date when this occurred is not clear, it was agreed that it was sometime in late April 2019. In May 2019 CJB attempted suicide by overdose. They returned to live with the defendant when released from Noarlunga Hospital. 24 The defendant and CJB remained living together, but moved house to live in Christies Beach with housemates, Peter Locke and Jessica Lock. They took a break in their relationship in July 2019. This was a mutual decision, as a result of ongoing arguments between them.7 Again, the length of the break is not clear with CJB’s evidence being it was ‘only for a few weeks, and maybe six weeks until [A] (the defendant) was injured’.8 The defendant’s evidence was that the break was closer to eight weeks.9 CJB later agreed the break was eight weeks.10 25 The defendant suffered a serious injury whilst working as an arborist on 9 August 2019. A large tree branch fell on his head, splitting his hard hat and causing two crush fractures at the L4 level of his spine. He initially only spent one day in hospital. He then required assistance with day-to-day activities, including walking. When he returned home, CJB did not return to live with the defendant, however they spent nearly all of their time at his home, and they mostly stayed overnight.11 Again, evidence of time-lines regarding CJB moving back in to live with the defendant is different between him and CJB. 26 The relationship between the defendant and CJB was not a stable one. There were arguments and on the Prosecution case, uncharged acts of assault including sexual assault. The defendant described CJB as being emotionally high maintenance and quite troubled. He agreed that CJB came with drama and stress.12 27 The charged offending allegedly occurred over the evening of 31 August 2019 and 1 September 2019. The defendant’s birthday is 31 August. The relationship broke down in mid to late September 2021. CJB no longer attended at 6 T91-92. 7 T33. 8 T47. 9 T196. 10 T98-T99. 11 T98-T100. 12 T237. -- 7 of 35 -- [2024] SADC 16 6 the defendant’s home. However soon after contact was re-established and the defendant and CJB would chat and hang out.13 28 In early November 2019, physical contact resumed between the defendant and CJB and this led to the resumption of a sexual relationship from 17 November 2019. By the end of November 2019 all contact between the defendant and CJB had ceased. The resumption of a sexual relationship in November 2019 was never reported to police, and the first time that information was volunteered was during CJB’s evidence.14 It was not disputed by the defendant. 29 On 14 May 2020 CJB reported the alleged offending to police and provided a statement to them. 30 CJB suffers from long-term mental health issues. CJB had struggled with their mental health from 12 years of age.15 CJB was diagnosed with anxiety and depression by their GP in 2015 when they were 16 years old;16 and has been prescribed mood stabilising and anti-depressant medication from the time they were 17 years old.17 CJB was later diagnosed with a Borderline Personality Disorder. That diagnosis was made by a psychiatrist in August 2021. This was after two suicide attempts in 2019, and ongoing mental health issues led to a referral.18 CJB accepted and agreed that they had suffered from the symptoms of a Borderline Personality Disorder in 2019. CJB had researched the criteria regarding the disorder before the formal diagnosis was given.19 31 The nature of the relationship between the defendant and CJB is an important issue to be determined. CJB gave evidence of controlling, and at times violent, behaviour on the part of the defendant. Whilst some of the acts CJB gave evidence of were confirmed by the defendant, his evidence was that CJB had exaggerated these events or misconstrued them. He denied that he was controlling and violent. 32 The defendant gave evidence that he had been addicted to methylamphetamine during periods of his life starting from when he was 17 years old.20 The extent of his drug use during the relationship is in dispute. The defendant’s evidence was that once starting work as an arborist in 2008/2009, he had extended periods where he stopped using drugs.21 He openly admitted to the challenges of being an addict, and of remaining clean. As a result, he has had relapses.22 There were three occasions when the defendant used methylamphetamine in 2019, those being January, mid-year (June or July) and 13 T196. 14 T55.7-9; T65.6 – T66.33; T70.8-12. 15 T89. 16 T62; T75. 17 T89-T90. 18 T75-T76. 19 T76.9-12; T90-T96. 20 T189. 21 T191. 22 T191. -- 8 of 35 -- [2024] SADC 16 7 December.23 In relation to the mid-year use the defendant accepted that he may have smoked methylamphetamine over a day or two before stopping.24 33 CJB only saw the defendant use methylamphetamine once during their relationship. Their evidence was that the defendant told them that he had used on many other occasions. They said the defendant had hidden his drug use from CJB as he was aware they didn’t approve.25 The defendant denies that this was the case.26 The Prosecution case 34 CJB’s evidence was that the defendant was violent towards them, and at times, controlling. CJB was living at the defendant’s rental accommodation, in several houses from some time in April 2019, but not initially earning any income. The defendant was paying for ‘most of the things’.27 Initially the relationship was good until things changed. It was not said when this was, but described as:28 A. It started off with arguments, it led to physical and threats of physical violence. Threatening to throw me into a wall, not letting me leave the house, taking my phone for hours. Essentially just locking me inside. Q. Was there any drug use in the house at the time. A. Yes. Q. Can you explain that to her Honour. A. I was informed that he had a problem with methamphetamines, he was quite often using. Q. Using what. A. Methamphetamines. Q. At home. A. Yes. Q. How did that affect him. A. It made his - made him very angry, made him less in control of himself. 35 CJB described an incident where they had been in hospital on 9 May 2019 after overdosing on their prescription medication. This was only a week or so after CJB had moved in to live with the defendant. When the defendant brought CJB home he told them that he had smoked methylamphetamine. This led to an argument and the defendant threatened to throw CJB into a wall. He then took their 23 T237, T243-244. 24 T237-T238. 25 T117-T119. 26 T243-T244. 27 T40. 28 T41.24 – T42.1. -- 9 of 35 -- [2024] SADC 16 8 phone away for several hours and stopped them leaving the house. This was followed by the defendant telling CJB that they shouldn’t sleep in the same bed because he wouldn’t be able to control himself if they said no to sex.29 36 CJB also gave an example of being locked inside the house by the defendant. He said that he wasn’t allowing them to leave ‘'… because you will just call your friend Jamie and go fuck him'. The defendant then became angry, grabbed an empty bottle of Jim Beam and ‘sort of started waving it around’. CJB was distressed and crying, and tried to get their sister to collect them. The defendant would not let CJB leave.30 37 CJB’s evidence was that sexual relations between them and the defendant were not always consensual:31 A. Quite often I would wake up in the middle of the night with his hands down my pants. I was trying to push his hands away, but he was stronger than I am and kept his hand where it was. This started off a couple of times a week, but it ended up most days at six, about six times a week. I - I was 19 and scared, I didn't know what would happen if I continued to say 'No', so. Q. When you say his hands were down your pants, can you just explain that. A. So I would find him with his hands down my pants, trying to insert his fingers into my vagina. Q. And what was he doing at the time that he was doing that with his hands down your pants. A. He was masturbating himself. Q. Was his conduct something that you raised with him. A. Yes. Q. Did you tell him you didn't want to do that. A. Yes. Q. And what was his response. A. 'I don't care'. That was his response, he didn't - that he didn't care if I said 'No'. 38 CJB explained that the defendant often pressured them for sex and that they would give in to avoid another argument even if they did not really want sex.32 Sex 29 T42.28 – T43.10. 30 T54. 31 T42.38 – T43.10. 32 T43.11-19. -- 10 of 35 -- [2024] SADC 16 9 was unprotected as the defendant wanted children despite CJB’s young age.33 CJB agreed to unprotected sex.34 Incidents of Abuse 39 CJB described five incidents that the Prosecution rely upon to argue that the defendant was a regular methylamphetamine user who acted irrationally and was abusive and violent, during the relationship. (i) Physical Altercation with another Female 40 This incident occurred early in the relationship when there was a house party at the home where the defendant and CJB were living at Noarlunga. After being told of a verbal altercation between the defendant and another woman, CJB went outside and found the defendant. They sat outside in the yard. The woman then walked around behind where CJB was sitting. The defendant pushed the other woman to move her away from CJB. He ended up pushing her through a fence onto the footpath. CJB had to pull the defendant off the woman as he wouldn’t get up. CJB and the defendant then went upstairs and the defendant was so angry that he punched his fist through a gyprock wall.35 41 CJB’s evidence regarding this incident was limited with an allegation that the defendant had initially tried to ‘hit on’ the other woman.36 It was evidence given to demonstrate that the accused was an angry and violent person, although on this occasion not against CJB.37 42 When asked further about the incident CJB agreed that they had their back to the fence and didn’t see the approach of the other woman. CJB was told by the defendant, who was sitting in the chair opposite them, that the woman had walked around behind CJB and approached them with a raised fist. CJB agreed that the defendant intercepted her.38 CJB believed what the defendant told them, but could not recall all the details, saying ‘it was kind of a blur, it was late at night’.39 43 CJB agreed in cross-examination that the fence collapsed as a result of the defendant pushing the woman away from them. The defendant went with the woman through the fence.40 This was after the woman had punched the defendant several times.41 CJB accepted that the defendant punched the wall after the incident due to his anger towards the woman.42 However CJB refused to accept that the 33 T43.20-25. 34 T43.20-25. 35 T44. 36 T44. 37 T112 - T113. 38 T110.27 – T111.1. 39 T111.4. 40 T111.9-16. 41 T111.6-8. 42 T112.16-19. -- 11 of 35 -- [2024] SADC 16 10 woman’s actions in raising a fist behind them was justification for the defendant’s actions.43 (ii) Complainant pushed onto bed 44 CJB described another incident after they and the defendant had moved to the house in Christies Beach in mid to late May 2019. The defendant had started becoming more physical and, during an argument picked CJB up by the shoulders, screamed in their face and then threw them back down onto a mattress. The defendant then went outside for a cigarette as if nothing had happened.44 45 CJB gave this evidence as part of their evidence regarding the defendant’s physical abuse during their relationship.45 (iii) Editing CJB’s Phone Information 46 An example given by CJB of the defendant’s controlling behaviour was him, in July 2019, demanding that CJB have no contact with male partners from their past. CJB had to start new social media accounts and delete some past contacts.46 CJB said that they were accused of cheating, and no male friends were allowed.47 (iv) Destruction of CJB’s Phone 47 After the break in their relationship, and upon resumption in late July 2019, CJB says that the defendant showed a lack of trust in them, and accused them of sleeping around. CJB described an incident at around 7 August 2019, when they were with the defendant at the Christies Beach Hotel with friends. CJB described the defendant getting angry because they were chatting with a 19-year-old man who the defendant had worked with. The defendant became enraged and went to leave, but realised he did not have his car keys. CJB had taken them off the table as the defendant had been drinking.48 The defendant demanded the car keys and when CJB refused to hand them over, he threatened to throw CJB’s phone against a wall. When CJB did not give him the car keys the defendant threw CJB’s phone through the hotel car park to the other side of a service station where it shattered.49 It was a relatively new phone worth $1,200. 48 CJB told the Court that through the remainder of their relationship, the destruction of their phone remained a point of contention. The defendant blamed CJB for not giving back his keys, and standing up for the 19 year old co-worker.50 CJB denied in cross-examination that the defendant had become upset with them 43 T112.31 – T113.3; T113.36 – T114.1. 44 T46. 45 T46.6-10. 46 T47. 47 Ibid. 48 T48 and T138. 49 T48. 50 T49. -- 12 of 35 -- [2024] SADC 16 11 at the hotel because they were distracted by their phone; and in particular, texting a man with whom CJB had been in a relationship with.51 49 CJB also denied that the defendant had discovered that they were texting by grabbing their hand and turning the phone towards him. This angered the defendant and he tossed the phone over his shoulder, not caring where it landed.52 50 The destroyed phone was an issue for CJB who was continuing to pay a monthly fee in regard to it. This remained the case when CJB reported the alleged rape in May 2020. CJB sought money from the defendant but he refused to pay anything to them, and they went to debt collectors. CJB sent text messages to the defendant seeking payment of $100 per week for three months, or $395 per month for three months. The defendant kept telling CJB he would not pay. This made CJB ‘even more angry’, and they threatened to take him to court for ‘destruction of property’.53 (v) Pushed off Chair 51 In September 2019 CJB said that while they were having drinks outside at home with the defendant, there was a heated argument. This led to the defendant grabbing CJB off their chair, screaming into their face and pushing them so that they hit the fence and ended up on the retaining wall. CJB told the Court that their left buttock had been bruised. This was photographed on CJB’s phone, but the defendant forced them to delete it.54 Other Pre-offending Issues in Relationship 52 CJB gave evidence that the defendant became more and more controlling, through their relationship, accusing them of cheating with male friends. There were ongoing arguments.55 Eventually there was a separation of approximately eight weeks from about 21 July 2019. CJB left the defendant’s house to live with a friend. During those eight weeks, after about four weeks, CJB would spend most nights at the defendant’s house.56 53 CJB returned to a relationship with the defendant after he had suffered the two spinal factures on 9 August 2019 in his work accident. CJB assisted with the defendant’s care. When CJB heard of the defendant’s work accident from his family, they went to visit him in hospital. CJB denied that the defendant returned to the hospital on two further occasions in August for treatment to his back.57 54 CJB told the Court that the defendant had been prescribed medication for his low back injury, including the narcotic analgesic Endone. CJB saw the defendant 51 T136. 52 T136 – T138. 53 T138 – T140. 54 T53-54. 55 T46-47; T98-99. 56 T58-60. 57 T100. -- 13 of 35 -- [2024] SADC 16 12 take that medication, but also give some of that drug away to his housemates. CJB was challenged on this evidence, given that this detail had never been given to police in any of CJB’s statements. It was explained that this was simply clarification, and not evidence to besmirch the defendant’s character.58 55 The issue of the defendant’s discontent with CJB contacting other men, involved him at times grabbing their hand when they were on the phone and turning their hand to see the screen. CJB agreed that the defendant didn’t like them texting other men.59 At times he would get angry. CJB told the Court that they returned to a relationship with the accused because they weren’t ready to give up on their first relationship after the previous one. They were also excited about ‘this adult liking me’.60 The Charged Offending 56 The alleged offending occurred after CJB and the defendant had been to dinner with family and friends at the Christies Beach Hotel. This was for the defendant’s birthday. CJB said that the defendant had told them earlier in the day that he expected sex as it was his birthday.61 57 CJB says that as the evening progressed, the defendant became affected by alcohol and the impact of drugs used the night before. CJB had only consumed a moderate level of alcohol, four drinks. The defendant and CJB moved to the Seaford Hotel. This was after the defendant had noticed someone with whom CJB had had a previous relationship, and the defendant was ‘getting really angry’.62 CJB and the defendant were at the Seaford Hotel for a short period before going home. 58 The defendant and CJB arrived home and CJB told him that they were tired. CJB’s evidence regarding the alleged offending was:63 A. He said he doesn't care. He said 'I don't care. I want to come'. Q. So what happened next. A. We initially started having penetrative sex, no foreplay just penis and vagina sex. It started hurting and I told him that it is starting to hurt. He kept going and I said 'All right, I need you to stop'. Its like I am in a lot of pain. He kept going. I said 'Stop, you need to get off of me' and he said 'No, its my birthday. I want to come twice'. I asked him to stop. He put his hand over my mouth and said 'Shut the fuck up'. Q. Which way were you facing at that time. 58 T100 – 105. 59 T106 - 107. 60 T47. 61 T51.31 – T52.1. 62 T50 - 51. 63 T52.7-36. -- 14 of 35 -- [2024] SADC 16 13 A. I was laying on my back with him on top of me and then I turned my head towards the right, towards the door, and cried in his arm with his hand over my mouth. Q. So you're crying, his hands over your mouth. Does he keep going or does he stop. A. No, he continues going until he ejaculated inside of me. Q. In terms of you have given evidence that the intercourse was painful, was there much by way of foreplay or not. A. No, not at all. Q. Can you just explain that to her Honour. A. We kissed a little bit but we went from kissing straight into penetrative sex. Q. Did you have any injuries that you were aware of from the penetrative sex that night. A. I had a bruised lip from where he put his hand down on my mouth. Q. Top lip, bottom lip. A. Bottom lip I believe. 59 CJB was shocked by what had occurred and had a difficult time processing it. They cried whilst thinking that the defendant should have stopped, but he didn’t. CJB said nothing to the defendant the following day, including about their bruised lip. They pretended nothing had happened.64 CJB’s evidence was clear that it was the defendant who had initiated sex on the evening of 31 August 2019.65 60 After the relationship had ended around the end of September 2019, CJB says that they spoke to the defendant as follows:66 A. So we broke up and I said to him like, you know, 'You know what you did to me'. He said 'Yeah, but I'm not ever going to tell you that over text and there's proof'. So I just went, you know, again 'Whatever'. Like, 'I can't do anything about it'. And he said if I told anyone he would do it again. Q. When he said he would do it again, what did you understand that to mean. A. Rape. 61 Whether the defendant ever acknowledged that he raped CJB, or threatened that he would do it again was tested in cross-examination. CJB was taken to a statement they made to police on 10 May 2022, two years after their first statement to police, and two and a half years after the alleged offending.67 That statement was adopted by CJB in evidence. It references a conversation CJB had with the defendant at Colonnades shopping centre after September 2019, although it is not 64 T52 – 53. 65 T180.5-13. 66 T54.32 – T55.2. 67 T59.30 – T60.9. -- 15 of 35 -- [2024] SADC 16 14 exactly clear when.68 CJB said that during this conversation the defendant was asked if he knew what he had done to CJB. His response was that he knew what he had done but he wasn’t going to admit it in a text message where there would be proof. 62 CJB gave evidence that in fact they had put to the accused that he had raped them. The defendant acknowledged that he had, but was not going to admit that in a way where there would be proof. CJB told the Court that there was an earlier text conversation where he denied raping them, but when they asked him in person, he admitted that he had.69 63 CJB acknowledged that despite that evidence, when they gave their sworn statement to police on 10 May 2022, whilst referencing the conversation at Colonnades, they did not tell police that they raised the topic of rape with the defendant. CJB also agreed that they had never asked the defendant to actually put his admission in a text message. 64 When challenged by defence counsel in relation to their evidence, CJB agreed that they had tried to have the defendant admit to rape at the end of September 2019 and that he flat out denied the allegation. CJB also admitted that they did not tell police in May 2022 that the conversation at Colonnades was about the defendant raping them. His confession was limited to the defendant saying he was not going to admit ‘it’ where there could be proof. CJB blamed the lapse of time for not recalling exactly what was said. CJB therefore accepted what they told police in May 2022 was the true position. This was opposed to the evidence given in Court.70 65 CJB also accepted that May 2022 was the first time that they told police of any confession by the defendant. This was some two and a half years after the event. However, as CJB was challenged further, they became defensive confirming that they could not remember each conversation with the defendant verbatim.71 In relation to being threatened by the defendant, CJB said that they could remember the threats, but no longer where the defendant was when he made them, and only that they were made some time in 2019 after the rape had occurred.72 Resumption of Relationship 66 After the relationship with the defendant ceased some time in September 2019, CJB began seeing someone else by the start of October. A short time later the defendant and CJB began ‘hanging out again as friends’.73 68 T120 – 129. 69 T122 – T123. 70 T124.6-38. 71 T127.9-13. 72 T128.14 – T129.17. 73 T55.3-9. -- 16 of 35 -- [2024] SADC 16 15 67 On 17 November 2017 CJB presented at hospital with suicidal thoughts and some cutting behaviour. They were detained overnight before being released. CJB texted the defendant and he came to the hospital.74 CJB said that they could not recall whether they told hospital staff that they had been sexually assaulted by the defendant. A sexual relationship between CJB and the defendant resumed after that attendance at hospital. This only lasted four weeks. CJB left as a result of the defendant’s controlling behaviours.75 68 In cross-examination it was put to CJB that their evidence regarding the resumption of a sexual relationship with the defendant, was the first time they had told anyone of that fact, including the police.76 CJB was initially reluctant to accept that this was correct, but ultimately accepted what was put by defence counsel. This was after CJB was shown each of their five sworn statements given to police.77 CJB said that they did not tell anyone about the resumption of their sexual relations because they were ashamed.78 CJB also said that they had been lonely, had had their heart broken, and had been in hospital. CJB described themself at that time as a mess.79 Finally, CJB indicated that they thought that they had told police about the resumption of a relationship with the defendant but they didn’t need to check their police statements again.80 Post Relationship Events 69 CJB gave evidence of a number of post relationship events during cross-examination. These matters were not elicited in examination in chief. Facebook Posts 70 At some time between the end of November 2019 and January 2020, CJB posted on their Facebook page full details of their relationship with the defendant. This included that he had raped them.81 CJB’s evidence was:82 Q. I take it you were very clear on your Facebook post exactly what happened. A. Yes. Q. There was no doubt in your mind that anyone could misinterpret what you loaded on your Facebook page. A. Yes. Q. About what happened. 74 T63.34 – T64.21. 75 T66.11-13. 76 T65. 77 T65.12 – T73. 78 T67.19-22. 79 T73.36 – T74.4. 80 T74.13-25. 81 T132.25 – T134.11. 82 T134.26-38. -- 17 of 35 -- [2024] SADC 16 16 A. Yes. Q. And you made it very clear that he raped you. A. Yes. Q. Did you give the details of the rape, you know, circumstances or just an assertion that he raped you. A. No-one needs the grizzly bit. 71 CJB had posted on Facebook details of the defendant’s controlling and violent behaviour, his anger issues and that he used drugs. CJB was very open with what they alleged had happened to them.83 CJB had not yet reported the alleged rape to police. They explained that this was because they were aware that a police complaint would be a lengthy process, and because they had been threatened earlier by the defendant. In relation to that threat, CJB could not provide detail of when or where that threat occurred.84 Contact with Shannon Lee 72 In January 2020 CJB was sent a Facebook friend request by Shannon Lee. Ms Lee was initially a friend of the defendant, and had later become his sexual partner. CJB agreed that they conversed with Ms Lee via Facebook Messenger. This was in relation to what had happened between CJB and the defendant, including that the defendant had raped them.85 73 CJB agreed that they were aware that the defendant was still in a relationship with Ms Lee in May 2020. CJB was not concerned by that, beyond the fact that they did not want Ms Lee to get hurt.86 CJB had also started a new relationship at that time. Threats made to the Complainant 74 CJB reported the alleged rape to police on 14 May 2020, after having received messages on Facebook Messenger from Ms Lee’s account. CJB knew that these had come from the defendant.87 This was because a nickname was used, ‘quinn’, that only the defendant used for CJB. It was derived from the comic book character Harley Quinn. 75 The Facebook messages contained a threat that led CJB to report the alleged rape. The messages contained the following:88 14 May 220 at 9:24am. 83 T135.1-10. 84 T135.34 – T136.17. 85 T134.12-35. 86 T142.18-24. 87 T140.21-24; T142.28-29. 88 Exhibit P1. -- 18 of 35 -- [2024] SADC 16 17 The defendant: You’re the reason I’m sitting where I am quinn you’ll probably get murder one day … I could almost guarantee it. A snowball effect. Glad I just realised. Shannon actually treated me badly just like you did the only real difference is I actually loved her. See ya round you piece of shit. CJB: I don’t know where you are and I don’t care. Why can’t you just let me be [A]? You’ve already destroyed me. I did nothing wrong. The defendant Die cunt. Get the fuck out of my life. Stop messaging my mate. and. talking. shit. Assessment of the Complainant’s Evidence 76 CJB gave evidence in a calm, controlled and articulate way. They spoke quietly and for the most part, with little emotion. There were times when CJB challenged the cross-examination, but most times they were polite and firm when they did not agree with a proposition. CJB made concessions where appropriate. 77 However, there were parts of their evidence that raised concern. When CJB was discussing the reason they went back to a sexual relationship with the defendant in November 2019 they said:89 I thought I was still in love with him but now I realise that it was more of a trauma bond. I was bonded to him through the trauma and I found it very hard to let go. (emphasis added) 78 While not asked what they meant, the inference from the language used is that CJB had attended sexual abuse or domestic violence counselling; or had researched responses to sexual abuse and/or domestic violence. Something has caused CJB’s recent realisation that there was a ‘trauma’ bond. I do not criticize CJB for taking steps to manage their emotional and psychological issues after the relationship with the defendant. However, it is an issue to take into account when assessing their evidence and the extent CJB’s evidence was impacted by any counselling or research. 79 CJB admitted suffering from mental health issues, including a serious psychiatric disorder. This does not mean I should assess their evidence as being unreliable. However, I cannot ignore the impact or consequences of CJB’s mental health issues where they are relevant on the evidence. This is the same as any other individual factor impacting a witness’s evidence. 80 CJB gave evidence of uncharged sexual assaults in relation to the defendant quite often fingering their vagina while they were asleep. CJB would wake up to 89 T55.12-14. -- 19 of 35 -- [2024] SADC 16 18 find this occurring whilst the defendant was masturbating himself. CJB told him they did not want that but the defendant did not care and continued. This occurred up to six times per week.90 81 This evidence was not led as discreditable conduct. It was elicited by the Prosecution as, if accepted, part of the defendant’s controlling behaviour. Doing what he wanted in the relationship. The evidence, if accepted, also reveals that the defendant was prepared to engage in sexual activity with CJB when he wanted, even if they were asleep. However, this evidence cannot be used to reason that the defendant committed the charged count of rape. As I will come to, the defendant’s evidence contradicted the Prosecution case that the defendant treated CJB as he wanted; that CJB was there to do what he wanted; and that he disregarded their wishes in relation to the acts of sexual intercourse the basis of the charge, or in relation to the uncharged acts. 82 CJB told police that there were multiple witnesses to the defendant’s anger towards them, and his controlling behaviours. This included their various flat mates. CJB agreed that all witnesses declined to speak to police or give evidence at trial.91 83 CJB during extended cross-examination gave very general details of their relationship with the defendant. CJB was clear on the actual events of violent abuse and controlling behaviour that were put to them. However, when trying to pin events to precise dates CJB was often uncertain or got the detail wrong. They gave the impression of guessing as to timelines or events. This impacts the reliability of their evidence. An example was when CJB was asked about the defendant’s low back injury.92 Not only did CJB get the date of the injury wrong, but also the part of the spine that was damaged. Their evidence was:93 Q. You think that it was 19 August when you visited him in hospital. A. It was - I'm not 100% sure of the date but from memory that was what I believed it was, yes. Q. Can I suggest to you that Mr M had actually fractured his L4 vertebra. A. I didn't know the details. It was a long time after it happened that I reported those details. Q. And that he broke that vertebrae in two places. A. It was fractured, it was not broken. Q. Fractured in two places. 90 T42.22-T43.10. 91 T61 – T65. 92 T99.5 – T100.29. 93 T99.31 – T100.18. -- 20 of 35 -- [2024] SADC 16 19 A. I guess so. Q. Did you see the X-ray. A. Briefly but I was a little bit more focussed on making sure he was okay then. Q. Can I suggest to you that he was first hospitalised on 9 August, the day of that injury. A. Sure, yep. Q. You wouldn't disagree with that. A. No. Q. That he was hospitalised again on 12 August 2019. A. He went to the hospital once and he was there for a couple of days. I stayed with him in the hospital bed one of those days and then we came home. Q. You're not aware of a second hospitalisation. A. Nope. 84 This demonstrates the manner in which CJB was prepared to guess when not sure of the answers. I accept the Prosecution submission that CJB was young and impacted by mental health issues at the time of their relationship with the defendant. However, CJB is now 24 years old. They did not impress me as naïve, or at all psychologically troubled while giving evidence. It was simply that they did not recall important matters relating to the defendant. Matters that were only weeks before the alleged offending. 85 This was also evidenced by the fact that CJB provided four supplementary sworn statements to police after first reporting the offending in May 2020. The Prosecution’s position is that this was a matter of CJB simply only answering the questions put by police, and not adding information. CJB accepted that in none of the five sworn statements, they told police that they had resumed sexual relations with the defendant in November 2019. However, they only came to that position after each of the statements were put to them in cross-examination.94 86 CJB put to the Court that they had not hidden the resumption of sexual relations with the defendant in November 2019.95 However when CJB was taken to their statement given to police on 24 September 2020, they confirmed that they told police that in some time in 2020 (corrected later to 2019) they and the defendant began hanging out as friends, for about four weeks. The defendant ‘started to be controlling and treating this as being back together’, and so CJB called it off.96 CJB agreed they had not mentioned the resumption of a sexual 94 T65.12-T74.25. 95 T65.12-15. 96 T65.25-T66.33. -- 21 of 35 -- [2024] SADC 16 20 relationship, and later said that was because they were ashamed.97That was not how CJB still felt in August 2022, when they completed their fifth statement to police. By then CJB believed they had told police about the resumption of sexual relations.98 They had not. 87 CJB’s failure to tell police about their further relationship with the defendant is an issue I will consider further when determining my verdict. CJB’s shame was that they went back to someone who had been abusing them for months and having been in hospital. CJB was lonely and heartbroken. They described themselves as ‘a mess’. This was not the case in August 2022 when they gave a further statement to police.99 88 CJB’s evidence regarding the defendant’s acknowledgment of raping them, and that if they told anyone about the rape he’d do it again, was confusing. As was CJB’s evidence of the defendant’s acknowledgment of ‘knowing what’ he had done to CJB, but that he wasn’t going to admit it in a text. CJB agreed that their conversation with the defendant was face to face. There was no reason given as to why then the defendant said he would not put his admission in a text. When cross- examined regarding what the defendant had said regarding putting his admission in a text, CJB frequently said that they did not remember what they had told police verbatim.100 89 In further cross examination, and after being taken to their statement of 10 May 2022, CJB agreed that they did not tell police that at the coffee meeting at Colonnades that the defendant had said, or agreed that he had raped them.101 90 CJB initially agreed that as their memory of events was better in 2022 than at trial, that what police was told, did not include CJB telling the defendant that they had raped them. They conceded that what was in the May 2022 affidavit was the true position, saying ‘that was how it went down, yes’.102 CJB also conceded that the first time they told police about the defendant’s alleged confession and that he was not going to put it in a text, was in May 2022, two years after the initial complaint.103 91 CJB then became more defensive and in answers to cross-examination admitted that they had no memory as to when and where the defendant had threatened to ‘do it again’ if they reported the rape. They only recalled that it was 97 T67.19-22; T73.36-T74.41. 98 T74.1-12. 99 T74.1-12. 100 T121.18-26; T121.38-T122.22; T122.23-30; T122.31-T123.5; T124.27-31; T125.1-14; T126.34- T127.13; T127.30-35. 101 T124.12-.17. 102 T124.27-38; T126.23-33. 103 T127.14-25. -- 22 of 35 -- [2024] SADC 16 21 in 2019, sometime after September.104 The defendant did not clarify that he meant rape, but CJB understood that was what he meant.105 92 CJB’s responses to cross-examination in relation to the defendant’s confession and threats and what they told police had occurred, calls into question the reliability of their evidence. I am not satisfied that the defendant responded to CJB’s statement that he knew what he had done by admitting that he had raped them, or that he responded in a manner that amounted to an acknowledgment that CJB’s assertion was the truth. The Defence Case 93 The defendant elected to give evidence. He denied much of the evidence of CJB, and provided an alternative narrative. He denied raping CJB as described by them or at all. He also denied the uncharged acts of sexual assault whilst CJB was asleep; and the alleged controlling and violent behaviour, including locking CJB in rooms, or in the house. He never took CJB’s phone from them for several hours. He denied pushing CJB into a retaining wall outside causing bruising on their buttock, or threatening to throw them into a wall. 94 The defendant’s memory surrounding the circumstances of his relationship with CJB were often poor. He explained that this was as a result of him having a poor memory generally.106 It was also caused by the fact that many of the events, on the defendant’s version of them, were of no consequence at the time. Many of the events occurred over four years ago, when at the time, they were not significant or memorable to him.107 As a result there was some incidents where the defendant had limited recall, and he was hesitant to fill in gaps in his memory when asked by counsel what had occurred. He did not want to make guesses.108 95 It was suggested that the defendant’s memory has also on occasion been impacted by using methylamphetamine.109 The defendant’s methylamphetamine use generally, and particularly in 2019, was tested in cross-examination. The defendant did not accept that his long-term memory had been affected by the drug.110 He rejected the suggestion that his denials of the offending was because he had used methylamphetamine, and as a result had no memory of events.111 No expert evidence regarding the impact of methylamphetamine on memory was led by the Prosecution. 104 T128.10-129.9. 105 T129.10-23. 106 T192.37-38; T243.12; T210.27 – T211.3; T243.12-16; T250.14-27. 107 T244.5-7. 108 T194.29-38; T247.3-23; T247.35 – T248.10; T248.16; T250.4; T252.4-9; T260.32 – T261.4; T262.32- T263.6; T275.14 – T276.15; T280.5-25. 109 T242.29 – T243.8. 110 T243.5-12; T251.23-28. 111 T263.37 – T264.30. -- 23 of 35 -- [2024] SADC 16 22 96 In reviewing all the evidence, I take into account that there are always inherent doubts regarding the reliability of recollections of events that occurred some years before. In Watson v Foxman the Supreme Court of NSW said:112 …human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. 97 I keep this judicial statement in mind when assessing the reliability of both CJB and the defendant, and their evidence. The objective evidence, as created at the time of the events in dispute must all be considered, particularly where the reliability of the evidence of either CJB or the defendant was attacked. I will proceed in that way. 98 Despite his memory lapses, I found the defendant to be forthright in his evidence as he told the Court his version of events. It was clear that he was baffled by the allegations made by CJB. They simply did not align with his memory of what had occurred, nor with his understanding of his behaviour towards CJB. 99 The defendant is now 36 years old. He currently works for NVS, it being determined that he can no longer work as an arborist following his low back injury sustained on 9 August 2019. He has long term issues with the use of methylamphetamine. He had tried to avoid the drug as his father died of an overdose when he was 12 or 13 years old. However, the defendant first experimented with methylamphetamine at 17. From that time his use has been variable. The defendant regards himself as a methylamphetamine addict, with extended periods of being clean. At the current time, apart from one slip up in January 2023, the defendant has not regularly used methylamphetamine since August 2022. 100 The defendant has had a pattern of stopping his drug use when starting a new job. However, he very candidly set out the grip of methylamphetamine and how it would get a hold of him for long periods before he could regain control and get the assistance he needed.113 He did not downplay his addiction. 101 The defendant was clear in his evidence that he only used methylamphetamine once during his relationship with CJB. That was in June or July 2019. He strongly denied using it more regularly.114 He denied that any lack of recall was related to methylamphetamine use.115 112 (1995) 49 NSWLR 315 at 319. 113 T189 – T191; T235.30 – T236.13. 114 T237.22 – T238.3; T243.17 – T244.7; T246.1-14. 115 T251.26-28. -- 24 of 35 -- [2024] SADC 16 23 102 The defendant gave candid evidence regarding his drug use. He also openly admitted that after his low back injury he gave away all his prescribed medication to his housemates. He did this as he was worried about the possible impact of them on him, given his previous drug use.116 He understood that this meant he would suffer more pain from his injury. The defendant’s evidence went further than the evidence of CJB, where they had said that the defendant had taken some pills and had only given a few tablets to his housemates. The defendant was adamant that it was a box of each prescribed drug that was given away. I prefer the evidence of the defendant, given against interest, to the evidence of CJB. I accept the reasons for him giving away all his prescribed medication. This is particularly so, given the pain described by the defendant in relation his fractured spine. 103 I also prefer the evidence of the defendant that he had three admissions to hospital after his back injury, and reject CJB’s evidence that he only went to hospital on one occasion. CJB appeared to be downplaying the extent of the defendant’s injury. However, the defendant’s evidence was open and candid regarding the extent of his injury. He told the Court that the injury was serious and when it happened on 9 August 2019, he was in intense pain in his low back. He described the injury as compression fractures at the L4 level.117 He had pain above his hips. He could not pick up his left leg or bend to put socks on. He had pain through his groin. He was told that this was due to nerve damage. This was still impacting him at trial. 104 After his release from hospital on 10 August 2019, the defendant returned on 12 August, and again over 16 and 17 August. On both occasions the defendant was suffering from low back, kidney and groin pain. On 12 August there was still leg pain and the defendant walked with a limp. On 16 August both his kidneys and testicles felt like they were being squeezed. The defendant was assisted by CJB with dressing and putting on his socks and shoes. He could not bend down. The defendant was not cleared for a return to work until mid-2023.118 He is no longer able to work as a tree lopper/arborist, and was the recipient of a large worker’s compensation payment.119 105 The defendant’s evidence was that at his birthday on 31 August 2019 his low back injury was still symptomatic. He described this as “debilitating as a whole”.120 He recalls dancing with CJB, but described her guiding him and moving his arms forwards and backwards.121 I understood this to mean he was not dancing in an energetic and unrestricted manner. 106 In relation to having intercourse with CJB, the defendant’s evidence was:122 116 T230.15-28; T300.1 – T301.16. 117 T255.1-17. 118 T231.23-33. 119 T255.18-34. 120 T233.8-13. 121 T233.13-21. 122 T233.36 – T235.11. -- 25 of 35 -- [2024] SADC 16 24 Q. At any time on 31 August or 1 September did you have sexual intercourse with CJB by lying on top of her. A. No. Q. At any time did you have sexual intercourse with her by lying on top of her and covering her mouth with your hand. A. No. Q. At any time to those two days did CJB tell you to stop having sexual intercourse with her. A. No. Q. Can you say whether you had sexual intercourse with CJB on the day or night of your birthday. A. I don't think we would have just given my condition and condition of my body at the time but I don't think I would have knocked it back. I would have tried to work it out. Q. As of 31 August 2019 were you physically able to get on top of CJB to have sexual intercourse with her. A. No. I mean, like with great struggle. Q. Were you physically able to have sex with CJB as of 31 August 2019, if she was on top of you. A. Prob - maybe. We would have given it a cracked and would have worked out whether I could have continued. Q. Do you recollect an occasion in August 2019 where she was having sexual intercourse with you whilst on top. A. On those dates? Q. Just - A. No. Q. - any time. A. No. 107 The defendant also confirmed that CJB never, during the remainder of their relationship, told him face to face or otherwise that he had raped them. He never admitted any rape to CJB, and never said he would rape them again if they reported the alleged rape to police.123 123 T235.12 – 28. -- 26 of 35 -- [2024] SADC 16 25 108 The defendant was frank and open about his circumstances. In response to cross-examination he said:124 Q. You're saying, as I understood your evidence, you wouldn't, your evidence is you wouldn't have been capable of having sex you being on top of her. A. I think the sex in general I just wouldn't have been capable about that time but I would have probably if we had - it may have been easier for her to do the work I guess. We might have tried to work it out. Q. How long did you abstain from sex for. DR SALU: That is the effect of it if he hasn't had it since 9 August. I am asking how long that went for. HER HONOUR: After the injury? DR SALU: After the injury. A. I would say there was a good couple of months where I was bad and things started - got better and I'm the kind of person I got to the point where I just wanted to get back into life. So, you know, deal with the limp, deal with the pain and move forward plus, like I said, I wasn't using pain meds or things like that. XXN Q. The injury, the crush fracture or the injury to your lower back is 9 August, have I got that right. A. Yes. Q. Your birthday is 31 August. A. Yes. Q. So that is a good few weeks. A. Yeah, three or so. 109 The defendant rejected a suggestion that on the night of his birthday he was using methamphetamine and drinking heavily. That he would have been “up for sex”.125 Again, the defendant’s response was open and frank, when he said: “You know possible but it doesn’t always mean you can …”126 110 The defendant was clear that he did not have sex on the night of his birthday. His memory was of having sex after his injury in November 2019.127 He denied all aspects of the alleged rape as put in evidence by CJB, including that someone had given him some methylamphetamine and that he had drank alcohol to a point of 124 T256.1-26. 125 T257.32-34. 126 T257.35. 127 T262.29 – T263.6. -- 27 of 35 -- [2024] SADC 16 26 intoxication at his birthday party.128 In relation to his alcohol consumption the defendant admitted that he had based his recollection on what his mother had told him regarding text messages on 1 September 2019 between her and CJB, whereby CJB had admitted being ‘quite seedy’ from the night before, but he was fine. This evidence is obviously hearsay in the absence of the defendant’s mother giving evidence. 111 However, the defendant’s evidence regarding the night of his birthday was persuasive in the face of robust questioning. While frustrated by the questioning, he gave logical answers regarding his back injury, and its effects on 31 August/1 September 2019. 112 After his birthday, the defendant was not aware of any particular issue or difference in his relationship with CJB, which continued as normal until the last week of September 2019. Even after they separated as a couple they remained friendly, with both being quite up and down. On 17 November 2019 CJB called the defendant telling him they were in hospital after cutting their leg and asked him to come to the hospital. The defendant felt sorry for CJB and gritted his teeth and went to see them. The defendant stayed with CJB until they were released. Shortly after their sexual relationship resumed. By the end of November 2019, the relationship ‘wasn’t right’ and all contact ceased.129 113 The defendant’s evidence was that his relationship with CJB was a volatile one. It was impacted by CJB’s mental health, and they fought regularly.130 He described this as 3 days on and 3 days off, meaning 3 good days and then 3 days when they fought with each other.131 The defendant would generally respond by shutting down and leaving the situation. It felt to him like they were always arguing, although on reflection the defendant accepted that there were good times too. 114 The defendant was particularly aggrieved by the amount of time that CJB spent on their phone, especially with former partners.132 The defendant was upset by the disrespectful way CJB would communicate with their ex-partners in a suggestive way.133 He admitted that at times during the relationship he would grab CJB’s hand and turn it to see who they were communicating with. The defendant demonstrated this in Court as him rolling the phone and CJB’s hand over so that he could see the screen and who CJB was communicating with.134 This was done out of frustration, as CJB was always on the phone, often communicating with other men.135 The defendant regarded this as a lack of respect towards him. 128 T263.7 – T264.32 129 T196-T199. 130 T265.12-17. 131 T204.27-29; T267.14-34. 132 T204.36-T205.3; T205.21-31; T220.20-23. 133 T265.20-38; T266.1-6. 134 T205.4-20; T207.2-16; T266.7-23. 135 T206.1-5. -- 28 of 35 -- [2024] SADC 16 27 115 The defendant admitted once pushing CJB onto a bed after grabbing their phone. He described this as a push with an open hand as CJB had leant across him to retrieve their phone. The defendant made contact with CJB’s upper torso and pushed them backwards onto the mattress in their bedroom.136 The prosecutor suggested that the defendant had no independent memory of that event, and the defendant candidly admitted that he could not recall the incident in detail.137 116 However, the defendant emphatically denied that he had picked CJB up by the shoulders screamed at them, and threatened to throw them into a wall before throwing them on the bed when upset with them being on their phone. This was put to him four times by the prosecutor. He denied the allegation each time. Although he could not recall the precise details of what occurred when he pushed CJB back onto a mattress, he never moved from his evidence that he did not assault CJB as suggested. 117 The defendant agreed that his arguments with CJB were often loud, and that he would have been upset that CJB was texting another man, one they had previously been in a relationship with. The defendant described these moments as part of what was a non-functioning relationship. He described the relationship as being ‘…quite up and down. Both of us weren’t desirable at the time…’.138 He admitted getting angry at times, especially with CJB remaining in contact with former partners.139 The nature of the relationship described by the defendant was of two people who ‘weren’t great people…’.140 118 The defendant openly admitted his role in relation to the assault on the woman whom he ultimately pushed through a fence, and the smashing of CJB’s phone by throwing it across the road. There was a lead up to both events which the defendant said led to what occured. Whilst he acknowledged that he could have handled both events better, the defendant explained his version of why he acted as he did. In doing so he acknowledged his anger. In relation to the phone incident his anger was directed at CJB as they had been texting with another man, with whom they had previously been in a relationship. The defendant had seen that when he grabbed the phone and saw his name. He then instinctively threw the phone away over his left shoulder:141 Q And after - did you see where it landed as you threw it or was it an aimed shot or. A No, I don't think so. It was just an angry, like, you know. Q You were angry. A Yeah, yeah, yeah, just over it mate. 136 T206.13-20; T272.34-38; T284.7-T287.9. 137 T286.26. 138 T197.1-2. 139 T205.22-31; T289.15-30. 140 T289.21-22. 141 T224.4-12. -- 29 of 35 -- [2024] SADC 16 28 Q And did you say anything to her after you threw the phone. A 'Give me my keys'. 119 The defendant admitted that it was his fault that the phone was broken, and that it was fair enough that CJB had demanded payment for the damage.142 He admitted that he was angry but denied his actions were due to drug use.143 He blamed CJB for his actions in that they were texting another man whilst out with him. 120 The defendant’s anger also played a part in his response to what occurred when he pushed a woman through a fence at a house party. Having had words with the woman earlier in the evening after she had propositioned him, he saw her approach CJB from behind their chair in a threatening way. The woman was very intoxicated and bigger than CJB. The defendant’s response was to stand up and push the woman backwards and away from CJB. Another shove took them through a panel of an iron fence that was resting on a railing.144 121 The defendant had been watching the woman as she came outside and approach CJB.145 As the defendant moved to intercept the woman she hit him several times. He described her as being aggressive and in ‘almost a borderline rage.’146 The defendant pushed her again. After they had gone through the fence the woman punched him several more times. 122 When CJB approached the defendant and tried to calm him. He openly admitted that he was furious at being punched by the woman, and this led to him punching a hole in the bedroom wall.147 The defendant again did not shy away from that being poor behaviour brought on by his frustration with what had happened. His anger was not directed at CJB. 123 The defendant, when cross-examined made it clear that he believed the woman, who was very intoxicated, and angry as she approached, was going to attack CJB. He admitted that he could not now recall if the woman had her fist raised, and was not prepared to guess. His instinct was that CJB was at risk of being assaulted.148 124 A dispute in the evidence arose when the defendant denied that CJB grabbed him and pulled him off the other woman.149 I will address this later in my reasons. While this incident as a whole confirms the defendant’s volatile nature, I accept his version of events on the balance. It is logical that he would attempt to stop his partner being assaulted, rather than simply push a person through a fence for no 142 T224.37-T225.7. 143 T298.1-13. 144 T213.10-T218.28;T280.26-T282.6. 145 A plan of the backyard was drawn by the defendant and is exhibit D4. 146 T216.1-14. 147 T218.29-T219.17; T283.18-T284.6. 148 T279.35-T280.25. 149 T282.6-T283.17. -- 30 of 35 -- [2024] SADC 16 29 reason. This event however is another example of the defendant’s anger being on display. A fact that the defendant does not deny. 125 The defendant takes issue with CJB’s evidence regarding his behaviour after the end of their relationship. He denies that CJB ever told him that he had raped them, or that he had threatened to ‘do it again’ if they reported the rape to police.150 He denied that he made such a threat to CJB after they had posted the detail of the alleged rape on their Facebook page.151 This was despite being contacted by mates who had seen the post and were asking what was going on.152 126 The involvement of Ms Lee in the Facebook messages was explained by the defendant, who had been a friend of hers for some time. He described her as his best friend and someone who had hung out with him and CJB.153 After the relationship with CJB ended, a relationship developed with Ms Lee who became the defendant’s partner in May 2020. At that time, he uploaded a new profile picture on Facebook with Ms Lee on 12 May 2020.154 127 During his relationship with Ms Lee the defendant had access to her Facebook account. However, he does not recall sending a message to CJB on 14 May 2019 on that account.155 His evidence was vague, but he accepted that it ‘wasn’t a good time’ and so it was likely a message that he had sent.156 However the defendant also said that everyone knew his nickname of Quinn for CJB. He’d given it to them early in their relationship. 128 The defendant was taken to the Facebook message sent to CJB, and when reading it he accepted that he would have sent it. He was not saying he intended to murder CJB, but that one day he could guarantee it would happen. The defendant did not say he was going to murder CJB, and his evidence was:157 Q You agree that there's reference to murder there. A 'Getting murdered', I just spelled it wrong. And I didn't say it was going to be me, I just said it was reference to - I believe if she kept treating people the way she does, and yeah, that someone would - more I'm not proud of the way I handled that whole relationship, not proud of how I handled a lot of things. Q A moment ago just in this answer, you said 'more of a warning'. What did you mean by that. A Are you talking to me? 150 T306.31-37; T307.8-13. 151 T308.8-13. 152 T307.23-27. 153 T199.23-28. 154 T199.36-T200.9; Exhibit D2. 155 T202.12-T203.4. 156 T202.36-T203.4. 157 T305.8-T305.24. -- 31 of 35 -- [2024] SADC 16 30 Q Yes. A Yeah, okay, sorry. Like I guess, you know, the way she's psychologically abusive, and I believe she's calculated. So I believe those sort of qualities could enrage someone. 129 The defendant agreed with the prosecutor that what he was telling CJB was that their conduct could have consequences. While accepting that the Facebook message was intense, the defendant denied that it was a threat. In fact, it was quite clear that he was shocked when the words of the message were read out to him in Court.158 He went on to explain that Shannon Lee was not CJB’s friend, and that after reading her Facebook post about the defendant she wanted to beat CJB up. 130 The defendant denies he was threatening CJB by his Facebook message. He denied that he ever threatened to ‘do it again’ to shut them up.159 Consideration 131 In this case there were two conflicting accounts in respect to the charged offence and the events surrounding it. There were aspects of the defendant’s evidence I consider to be unconvincing. For example, the incident involving him damaging CJB’s phone by throwing it across the road, and the reasons why he did that. The defendant was almost casual about what he had done, which was hard to reconcile with how far the phone was thrown and the resultant damage. However, in the main I found the defendant to be a reasonable witness who gave a plausible account sufficient to generate, in my mind a reasonable doubt as to his guilt. 132 This is particularly in relation to his serious L4 injury suffered on 9 August 2019, only three weeks before the alleged rape. The defendant’s third attendance at hospital on 16 and 17 August due to increased back and groin pain was only thirteen days before the alleged offending. I accept the defendant’s evidence, as a reasonable possibility, that his back injury was still symptomatic at 31 August, and that even if had tried to have sexual intercourse, it would not have been in the aggressive manner described by CJB. It would not have been with him on top of CJB with him doing all the work. 133 In relation to his back injury the defendant’s evidence that he gave away all of his prescribed medication also supports his version of events related to his L4 spinal injury. He was prepared to live with his pain, described in graphic terms, rather than risk a relapse into drug use. This evidence was persuasive given that CJB had given evidence of him giving away only some pills. The defendant was prepared to give his evidence under caution, rather than adopt evidence that suggested lesser wrong doing on his behalf. 134 This was the consistent approach that the defendant took to his evidence. He did shy away from incidents that involved his anger and often noted that events 158 T306.5-T306. 159 T306.31-37; T307.8-13. -- 32 of 35 -- [2024] SADC 16 31 were not his best moments. I found his evidence compelling in relation to the challenges in his background and in his relationship with CJB. 135 CJB is intelligent and gave their evidence in an articulate manner. I do not find that CJB was necessarily untruthful. They may have told the truth from their perspective. However, in addition to the defendant’s evidence, there were aspects of CJB’s evidence that caused me to doubt the credibility of their allegations. 136 First there is how CJB responded to the alleged rape. There is no evidence that CJB told anyone of the alleged rape involving the defendant until they posted details on their Facebook page. CJB did not tell the defendant that he had raped them or that his actions in continuing to have sexual intercourse with them on 31 August/1 September 2019, were without their consent. 137 There is no evidence that CJB ever pointed out the bruising on their bottom lip to the defendant. CJB did not mention the rape during the day of 1 September 2019. It was not mentioned again before the relationship petered out at the end of September 2019. CJB’s only evidence of mentioning the rape was them speaking to the defendant some time at Colonnades shopping centre and saying ‘you know what you did to me’ after the relationship had ended. That conversation, including the defendant’s alleged response was not admitted by the defendant. It was not an allegation of rape. 138 CJB says that the defendant responded to their statement by saying that he knew what he had done, but he wasn’t going to admit it in a text message. However, when telling police of this response CJB never told them that they had raised the topic of rape with the defendant. The defendant’s evidence was that CJB never told him face to face that he had raped them. I find that the defendant did not know that CJB believed that he had raped them by continuing sexual intercourse after they had told him to stop. It was not until CJB posted the allegations of rape on Facebook in May 2020 that the defendant became aware of the allegations. 139 In the interim, a sexual relationship between CJB and the defendant resumed in November 2019 after CJB called the defendant to come and see them in hospital after a suicide attempt. CJB did not tell police about the resumption of sexual relations. The first time they told anyone about this was when giving evidence in Court. 140 CJB was reluctant to admit that they had not reported the resumption of sexual relations to police. CJB needed to be taken through all their police statements before they agreed that this was the case. In fact, CJB had told police that they and the defendant were in contact as friends for about four weeks after their November hospitalisation, but not that they had resumed sexual relations. 141 When defence counsel asked why, over five statements, CJB had neglected to tell police of the resumption of sexual relations, their response was defensive -- 33 of 35 -- [2024] SADC 16 32 and not persuasive. It impacted CJB’s credibility and the reliability of their evidence. 142 I have already set out the inconsistencies in CJB’s evidence regarding the alleged admission by the defendant that he had raped them, and if it was reported to police, he would do it again. This evidence is in conflict with CJB posting the details of the rape on Facebook, before making a formal report to police.160 CJB’s concerns regarding the defendant’s threat, is inconsistent with them posting the accusations over Facebook. It is inconsistent with CJB’s evidence that the defendant’s threat was why they did not report the rape to police earlier than May 2020. 143 When that inconsistency was put to CJB, their response was that telling the police was a long process, and that the defendant’s threat was not a concern as they had no Facebook friends who were police officers.161 I find that to be a flippant response that demonstrated that CJB had little understanding of the consequences of posting allegations of rape to their Facebook page. 144 During their evidence CJB appeared to make attempts to besmirch the defendant’s character. This was the case regarding him giving away his prescribed medication to housemates. I do not accept that this evidence was given by CJB for any other reason. In any event I prefer the defendant’s version of events. Another example was in relation to the defendant use of methylamphetamine. The defendant’s evidence was compelling regarding his drug use, and the grip of his addiction had over him. I accept that he only used methylamphetamine over one period whilst in a relationship with CJB. This was in June or July 2019. 145 This accords with CJB’s evidence that they only saw the defendant use methylamphetamine once during their relationship. However, CJB gave evidence that the defendant told them he had used more often. I do not accept that evidence. 146 Similarly in relation to the events surrounding the party where another female was pushed through a fence. Whilst ultimately conceding that they may have been at risk, CJB would not accept that the defendant was trying to protect them, or that this justified his actions. I do not accept their evidence beyond reasonable doubt that they had to pull the defendant off the woman. The defendant denied this, and given CJB’s petite frame, I cannot accept CJB would have been able to pull the defendant off the other woman whilst he was still tussling with her. 147 In relation to this incident the defendant did not shy away from what had occurred, and that he had pushed the woman through the fence. He justified his actions as protecting CJB. CJB’s refusal to accept that the defendant’s actions could have been to protect her, was given to besmirch his character, and paint him as a bad and aggressive person. I do not accept that evidence. 160 T134.26-T135.10. 161 T135.34-T136.4. -- 34 of 35 -- [2024] SADC 16 33 148 On review of all the evidence, and taking into account the plausibility of the defendant, who had suffered a serious injury to his lumbar spine three weeks prior, being able to perform the rigorous sexual acts described by CJB as occurring on 31 August/1 September 2019, I have reached the conclusion that the Prosecution have failed to prove their case beyond reasonable doubt. -- 35 of 35 --