[2024] SADC 113

Prosecution: R Counsel: MR C ALLEN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Defendant: CLEMENT ROGER SMITH Counsel: MR P MORRISON - Solicitor: CRAIG CALDICOTT LAWYERS Hearing Date/s: 04/09/2024, 06/09/2024, 09/09/2024 File No/s: DCCRM-23-014677 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 SMITH Criminal Trial by Judge Alone [2024] SADC 113 Judgment of his Honour Judge Durrant 20 September 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT The accused is charged with one count of rape - trial by judge alone without a jury. Verdict: Not guilty. Juries Act 1927 (SA) s 7; Criminal Law Consolidation Act 1935 (SA) s 46; Evidence Act 1929 (SA) s 34, referred to. BCM v The Queen [2013] HCA 48; Douglass v The Queen [2012] HCA 34; R v Keyte (2000) 78 SASR 68; AK v Western Australia [2008] 232 CLR 438; Aiken v The Queen [2014] NSWCCA 213; R v Murphy (1988) 52 SASR 186; R v Turvey (2017) 127 SASR 425; R v Rahmanian [2010] SASC 137; R v Blayney (2003) 87 SASR 354; Higgs v The Queen (2011) 111 SASR 42; R v Bland [2001] SASC 57; R v Ball (1991) 56 SASR 126; R v Moores (2017) 128 SASR 340; R v Loader (2004) 89 SASR 204; R v Murray (1987) 11 NSWLR 12; Fox v Percy (2003) 214 CLR 118; R v Wildy (2011) 111 SASR 189, considered. -- 1 of 23 -- -- 2 of 23 -- R v SMITH [2024] SADC 113 Introduction 1 The prosecution alleges the accused Clement Smith, on 22 April 2014, at an address in Edwardstown, raped the complainant, NT.1 2 The accused elected to be tried by judge without a jury.2 3 The complainant was the crucial witness at trial. The prosecution case relies on the acceptance of her evidence beyond reasonable doubt she had been asleep when the accused inserted two of his fingers into her vagina. 4 While not obliged to do so, the accused gave evidence. He denied he had inserted his fingers into her vagina. He said she had been awake and rejected him when he tried to kiss her. He said he then quickly left the house in embarrassment. 5 Even if I do not accept that evidence of the accused, it is still for the prosecution to prove its case beyond reasonable doubt. Rejection of the evidence of the accused would not prove the prosecution case, nor make it stronger. 6 It is not enough therefore for the prosecution to show mere suspicion of guilt or that the accused is probably guilty. He is not to be convicted unless his guilt has been proved beyond reasonable doubt. 7 My reasons for verdict are set out below.3 The elements of rape 8 To prove the rape alleged, the prosecution must prove three elements beyond reasonable doubt.4 9 First, that the accused engaged in sexual intercourse with the complainant by inserting two fingers into her vagina. 10 Second, that the complainant did not consent to such sexual intercourse. 1 Information filed 13 July 2023. 2 Juries Act 1927 (SA), s 7. 3 Sufficient reasons must be given to properly explain my verdict but I am not obliged to express all matters, ‘which necessarily have to be stated to a Jury, unfamiliar with the basic principles of law’; BCM v The Queen [2013] HCA 48; Douglass v The Queen [2012] HCA 34 [14]; R v Keyte (2000) 78 SASR 68; AK v Western Australia [2008] 232 CLR 438; and Aiken v The Queen [2014] NSWCCA 213. 4 Criminal Law Consolidation Act 1935 (SA) s 46(2), s 47; R v Murphy (1988) 52 SASR 186, 200 (quoted with approval in R v Turvey (2017) 127 SASR 425; [2017] SASCFC 28, [29]); R v Turvey (2017) 127 SASR 425; [2017] SASCFC 28, [34]-[37]; R v Rahmanian [2010] SASC 137, [32]; R v Blayney (2003) 87 SASR 354; [2003] SASC 405; Higgs v The Queen (2011) 111 SASR 42; [2011] SASCFC 108, [36] (David J); R v Bland [2001] SASC 57, [16]-[17]; R v Ball (1991) 56 SASR 126, 127; R v Moores (2017) 128 SASR 340; [2017] SASCFC 95, [140]. -- 3 of 23 -- [2024] SADC 113 2 11 In that respect, ‘consent’ means free and voluntary agreement to the act of sexual intercourse. Importantly, consent cannot be given by a person who is asleep.5 12 Third, that the accused knew or had been recklessly indifferent to the fact the complainant did not consent to sexual intercourse. That requires consideration of his state of mind at the time of the sexual intercourse. 13 There are three ways the prosecution can prove reckless indifference. 14 First, an accused is recklessly indifferent if, aware of the possibility that the complainant might not be consenting to the act or had withdrawn consent to the act, they decided to proceed regardless of that possibility. 15 Second, an accused is recklessly indifferent if, aware of the possibility the complainant might not be consenting to the act or had withdrawn consent, they failed to take reasonable steps to ascertain whether the complainant did in fact consent, or had in fact withdrawn consent, to the act before deciding to proceed. 16 Third, an accused is recklessly indifferent if they did not give any thought as to whether the complainant was consenting to the act or had withdrawn consent to the act before deciding to proceed. The evidence 17 The evidence in this case was comprised of the oral testimony of the complainant, the accused, and a character witness, exhibits, and facts agreed.6 18 The only prosecution witness was the complainant. She was cross- examined extensively by the defence. The prosecution tendered a single exhibit.7 19 The accused gave evidence and was also cross-examined. The defence tendered 14 exhibits and called John David Hill as to the character of the accused. General directions 20 While it is not necessary to direct myself in the same way a jury would be directed, I have reminded myself of these general directions and have set out elsewhere in these reasons further directions applicable to this case. 21 To decide this case, I must find facts and draw inferences from the evidence led at trial, as well as apply the law to the facts found. 22 I must bring an open and unbiased mind to bear, view the evidence clinically and dispassionately, and not let emotion enter my decision-making. 5 Criminal Law Consolidation Act 1935 (SA), s 46 (2) ( 3)(c); See also Evidence Act 1929 (SA), s 34N. 6 Exhibit P12-Agreed Facts. 7 Exhibit P1. -- 4 of 23 -- [2024] SADC 113 3 23 Both the prosecution and accused are entitled to verdicts free of partiality or prejudice, favour or ill-will and according to the evidence. 24 As in any criminal case, the prosecution always bears the onus of proving the guilt of the defendants. The accused does not have to prove anything. 25 The standard of proof of the prosecution case is proof beyond reasonable doubt. The accused cannot be found guilty unless the evidence I accept satisfies me beyond reasonable doubt of his guilt. 26 The accused is presumed innocent unless and until the evidence I accept satisfies each element of the charge beyond reasonable doubt. 27 Where I refer to something which must be or has been proved or established, or that I must be or have been satisfied of something; that thing must be or has been proved, or I must be or have been satisfied, beyond reasonable doubt. 28 I make my findings beyond reasonable doubt, unless specified otherwise. 29 If the evidence fails to satisfy me beyond reasonable doubt of the offence charged, the defendant remains presumed innocent. 30 The burden of proof is always on the prosecution. 31 The assessment of witnesses involves a consideration of whether the witness is honest. If satisfied the witness is honest, that assessment then must involve consideration of whether the evidence of the witness was reliable and accurate. 32 In the assessment of the witness's evidence I am entitled to have regard to my experience of life, my dealings with other people and common sense. 33 I am not bound to accept all a witness's evidence or to reject all of it. I am entitled to reject some parts and to accept other parts. 34 I am entitled to consider the manner of a witness when they gave evidence and how the witness stood up when being cross-examined. 35 I must keep in mind the different backgrounds, age, personal qualities and characteristics of witnesses and the impact on memory of the elapse of time. 36 As the complainant is the critical witness and as the prosecution must prove the accused guilty, the prosecution must convince me her evidence is true and accurate. It is not for the defence to show she had been wrong or had been lying. 37 There can be many reasons why a witness may lie, and I must not speculate about those. I must not treat the complainant’s evidence as more credible, or more believable, just because there may be no evidence that provides a reason why she might be lying. I must not conclude from the absence of any such evidence she had no reason to lie and was telling the truth. -- 5 of 23 -- [2024] SADC 113 4 The XL Superclub 38 The complainant worked at the XL Superclub as a VIP hostess.8 A friend of the accused called Mark Judd worked there as a bartender.9 Mark Judd lived on Weaver Street at Edwardstown, where the rape was alleged to have taken place.10 39 The complainant formed a relationship with Mark Judd.11 She said whilst she had valued their relationship, it was not an exclusive one.12 She said she was interested in developing an exclusive relationship.13 40 The accused had met Mark Judd years before when he was living in the south- east.14 41 The complainant met the accused through Mark Judd.15 Brighton Beach 42 The accused said, in March 2014, he had gone to Brighton Beach with Mark Judd and had met the complainant for the first time.16 He said they engaged in small talk and a light- hearted exchange about whether he looked like Channing Tatum.17 43 In cross-examination, the complainant did not recall meeting the accused at the beach; nor did she have any recollection of being asked if he looked like Channing Tatum.18 Later Facebook direct messages with the accused, which referred to him looking like that person, did not refresh her memory of that meeting.19 The Edwardstown house 44 The accused said he next met the complainant at Mark Judd’s house at Edwardstown, ‘in passing’.20 The complainant did not know whether she had seen the accused at that house prior to the alleged offending.21 8 T42.1-15. 9 T43.31-35. 10 T44.18-23. 11 T44.10-17; T45.10-15. 12 T.69.31-36. 13 T73; T92; T73.8-16; T92.29-31. 14 T46; T45.19-23; T46.10-13; T134-135; T134.11-T135.30. 15 T135.22-30; T46.7-14. 16 T135.22-30. 17 T136.6-23. 18 T71.13-20; T71.21-28. 19 Exhibit D3, [4]; T89.4-14. 20 T136.29-33. 21 T72.1-4. -- 6 of 23 -- [2024] SADC 113 5 The robbery at the home of the accused 45 The accused said on the weekend before Easter 2014, after a night out, he came home and caught a man ‘mid robbery in my house’.22 He said he had called the Police and Mark Judd, who came round with the complainant.23 46 The complainant had no recollection of that.24 She did not know if she had gone to the accused house after a burglary.25 Her memory was not assisted when later Facebook Messenger exchanges with the accused about ‘Facing robbers is way worse’,26 and ‘mak[ing] sure my house is safe please’, were shown to her.27 Drinks at Edwardstown 47 The accused said on 20 April 2014, he went to the Edwardstown house for drinks before going out into the city. He said Mark Judd and another of his friends Matt Koopman were there.28 He had not seen the complainant that day and she was not at the house.29 The accused said they left to go to HQ at 11pm; ‘HQ used to have pretty big line ups. We would always leave to there at that period’.30 Easter 2014- HQ nightclub 48 The complainant said she had gone clubbing with a group to the city on the Easter weekend in 2015.31 She said Mark Judd, the accused, Ryan Judd, Matt Koopman, Daniel Altintas and Jose Esteves had been there.32 She did not initially remember the club they went to33 but in cross-examination accepted it could have been HQ.34 She later accepted that, ‘obviously I was there’ after she was shown messages.35 49 In her evidence in chief, the complainant said she had not interacted with the accused at HQ or at another later venue, the Horus Shisha Bar.36 50 She said that night she had: no one-on-one conversations with the accused at any time;37 not received any Facebook direct messages from him; and, no contact with him on a mobile phone.38 22 T137.31-38. 23 Ibid. 24 T72.8-14. 25 Ibid. 26 T83.35; T84.6. 27 T88.27-34; Exhibit D3. 28 T140.20-32; T144.15-24. 29 T141.7-9. 30 T189.38-T190.5. 31 T48.26; I am satisfied that she was mistaken and was referring to 2014, see Exhibits P1 and D3. 32 T48.34-49.10; There were potentially others there, but she could not say who. 33 T49.19-23. 34 T78.38-T79.2. 35 T82.3; Exhibit D3, [1]. 36 68.27-33. 37 T69.17-21. 38 T64.7-14. -- 7 of 23 -- [2024] SADC 113 6 51 The accused said he had seen the complainant at HQ and spoke to her twice and she was upset and was swearing.39 He said he bought her a drink and they spoke about her relationship with Mark Judd who did not have ‘full interest’ in her.40 He said she added him that night as a friend on Facebook.41 52 The complainant said she had an argument with Mark Judd that night but could not recall where that had happened.42 While she had been annoyed at Mark Judd she was unable to recall what the argument was about.43 In cross- examination, she agreed she may have cried about the argument and it was ‘potentially’ because she was more interested in Mark Judd, than he in her.44 The Facebook messages after leaving HQ and at Horus Shisha Bar 53 In the cross-examination of the complainant, 140 Facebook Messenger direct messages, sent and received between her and the accused commencing at 3.56am on 21 April 2014, were tendered.45 54 Prior to that tender, in cross examination, the complainant had elaborated about the night out at HQ. She said she did not know and had no recollection of a person called ‘Floody’.46 She said she had called Matthew Koopman ‘Koopy’.47 She said she had not been allergic to gluten but had been sensitive to it.48 She said she had just come out of a long-term relationship but it was not fair to say it had been unhappy in its final year.49 She said she did not remember if her Snapchat username at the time was PrincessN1.50 She said she had not been allergic to sugar.51 She said she did not, in 2014, understand the term ‘party hats’ to be a reference to condoms and could not remember if she had heard that term in that way before.52 She said she never drank vodka and raspberry and would usually drink vodka and soda.53 She denied the sugar in soft drink made her feel sick.54 55 In cross-examination, the existence of messages with the accused on 21 April 2014, was put to the complainant. She said she had no memory of sending or receiving messages from the accused over Messenger that day.55 39 T146.33-T147.16. 40 T147.38-T148.1. 41 T149.15-T150.7. 42 T50.31-35; T51.1-5; T179.11-27. 43 T50.31-33; T79.18-25. 44 T74.16-21; T80.1-5. 45 Exhibit D3. 46 T73.26-27. 47 T73.28-39. 48 T74.1-4. 49 T74.21-28. 50 T74.31-35. 51 T74.9-10. 52 T76.26-34. 53 T79.29-T35.31. 54 T79.33-35. 55 T80.15-21. -- 8 of 23 -- [2024] SADC 113 7 56 When put to her, the complainant accepted messages were exchanged with the accused,56 and agreed all, except those on page 1 and page 13, had been sent from the Horus Shisha bar, after HQ.57 57 Asked to explain why those messages from 21 April 2014, were not contained on the phone she had provided to police on 28 July 2022, she accepted she had deleted them.58 She was unable to say when she had done that.59 She said she had no recollection of deleting them but was ‘in the habit of…frequently deleting messages after periods of time’. 58 The complainant accepted while she had deleted those messages from 21 April 2014, she had retained others with the accused from 22 April 2014, and had given them to Police. She said, ‘I kept those for a specific reason’.60 59 In cross-examination, the complainant accepted that in the messages she had deleted: she had said she was allergic to gluten and sugar;61 she had said she had not been entirely happy towards the end of her previous relationship;62 she provided her Snapchat username;63 she had said was sick from drinking soft drink with vodka;64 and she said she had been drinking soft drink with vodka that night.65 On the way to the Horus Shisha bar 60 The complainant accepted she told the accused, after leaving HQ, to come to the Horus Bar.66 The accused said he left HQ about 4am, and went to the Shisha bar, because he had been talking to the complainant on Messenger.67 61 In cross-examination, the complainant agreed messages were exchanged with the accused as they travelled separately to Horus Bar.68 Horus Shisha bar 62 Some of the revellers from HQ, including the accused, the complainant and Mark Judd, arrived at the Horus Bar between 3 and 4am.69 63 Horus Bar had street seating, an area just inside and an ‘out the back’.70 56 T81.1-4. 57 T97.28-T98.22. 58 T64.28-30; T98.6-26. 59 Ibid. 60 Exhibit P1; T98.27. 61 T86.25-36. 62 T94.19-21. 63 T102.25-27. 64 T86.34-36. 65 T86.37-T87.2. 66 T81.22-27. 67 T150.11-T151.13. 68 T83.10-14; Exhibit D3, [1] down to the message that includes the words ‘I’m settled down…’ 69 T49.30. 70 T85.9. -- 9 of 23 -- [2024] SADC 113 8 64 In her evidence in chief, the complainant said the accused was at Horus Bar.71 She said she had not interacted with him there.72 She was confident she had at Horus Bar been sitting ‘all night on the lap of Mark Judd’.73 74 65 In cross-examination, the complainant initially did not remember where she had been sitting at Horus Bar.75 She later said she was on a black couch.76 Later, she conceded she may have been wrong about black couches being at the venue.77 66 The complainant initially rejected any suggestion the accused had sat with her outside.78 She confirmed she did not remember speaking with him.79 She later conceded it was possible he had come over to her straight away.80 She did not remember touching the accused on the shoulder, nor sitting close with him.81 67 The complainant recalled leaving Horus Bar in a cab with Mark Judd and another to go to the Edwardstown house.82 She could not say who else was in the taxi.83 She did not know how long they had stayed at Horus Bar.84 68 The complainant was taken thorough the messages she accepted had been exchanged with the accused while they had both been at Horus Bar.85 She initially did not remember if others in the group had come to where she and the accused had been sitting, and whether they continued the discussion they were having on Messenger.86 She later conceded it was possible they had done that.87 69 She initially said she had not been sending messages to the accused discreetly.88 She later agreed they had sent messages when the others were present, ‘privately’.89 She was confident she did that, while sitting on Mark Judd’s lap.90 70 The complainant described the messages as ‘small talk’,91 albeit she accepted they talked personal feelings and serious topics; ‘drunk conversation’.92 71 T69.2-4. 72 Ibid. 73 T50.15-16. 74 T116.21-26. 75 T83.16-18; T84.18-21. 76 T114.8. 77 Ibid. 78 T84.34-37. 79 T84.38-T85.2. 80 T115.6-21. 81 T86.4-8; T116.19-27; T116.2-4. 82 T51.17-38. 83 Ibid. 84 T50.25-27. 85 T97.28-T98.22. 86 T86.9-13. 87 T115.7-30. 88 T86.14-18. 89 T115.31-T116.1. 90 T116.21-23. 91 T95.29. 92 T95.30-34; She maintained she had no recollection of being drunk, T100.36-T101.2. -- 10 of 23 -- [2024] SADC 113 9 71 As to the message about the ‘awkward as fuckness’ of staying with Mark Judd, she accepted that had been a reference to the fight she had with him.93 72 The complainant agreed an ‘x’ from the accused was a kiss.94 73 She said her response to ‘U can sleep with me on the couches at marks we will partayyy’ of ‘sure, sure’ was, ‘brushing it off, not trying to be rude’.95 She denied his message ‘Im daaa most fun’ referred to him as being good in bed.96 74 She denied, given that asserted context, that his reference to ‘party hats’ was an indication he had condoms.97 She said her response ‘fun fun fun fun fun’ was her way of being ‘dismissive, that she didn’t want to be rude to someone, that she was naïve and didn’t know how to have a proper conversation’.98 75 In cross-examination, the complainant agreed she asked the accused in those messages about whether Mark Judd was a ‘player’ and a ‘cheater’.99 She said it was ‘unclear’ to her what being a ‘player’ was but agreed she knew it described someone who would string lots of girls on at the same time.100 76 The accused said the messages encouraged him to think the complainant was sexually interested in him and there was a prospect of sex or something else. The group go to the Edwardstown 77 The accused and complainant both said they left Horus Bar and went to the Edwardstown house with some of the group who had been at Horus Bar.101 78 The complainant said the group went inside and everyone went to the back lounge room.102 She initially said they had ‘nangs’ and alcohol but in cross- examination said she remembered ‘mostly everyone’ was drinking.103 Later, she accepted she had no idea if the accused was taking ‘nangs’ or drinking.104 79 The accused said he had not been drinking and he had not had any ‘nangs’ at the house when he returned there after the Horus Bar. 93 T87.19-T88.14. 94 T87.28-30; Exhibit D3, [2]. 95 T90.21-22. 96 T90.25-27. 97 T91.2-4. 98 T91.7-10. 99 T92.37-38; T93.16-17. 100 T93.1-8. 101 T51.34-35; T173.7-12; T51.18-22. 102 T52.3-4. 103 T100.32-35. 104 Ibid; T100.36-35. -- 11 of 23 -- [2024] SADC 113 10 80 The complainant said she left the loungeroom but did not remember if she said goodnight to anyone.105 In cross examination, she said she had not stayed in the lounge for long and had not spoken with the accused.106 81 The complainant said she went to Mark Judd’s bedroom at the front of the house.107 She said it had still been dark.108 She had no recollection whether she got changed or not;109 her usual practice was to wear clothes to bed.110 She said she got into the right side of the double bed furthest from the window and went to sleep.111 She said the blanket had been on top of her.112 82 The accused said the complainant had spoken with him in the loungeroom for about 15 minutes and had then left to go to bed113 He said she looked at him and rolled her eyes when she got up.114 He elaborated in cross- examination that eye- rolling had been directed at Mark Judd. 83 The accused said he had sent Snapchat messages to the complainant asking if she was ok and telling her he was going to come and see her. He said she responded to the effect that was fine.115 In the bedroom 84 The complainant said she woke up and felt two fingers inside her.116 She said she had not consented to be touched in that way.117 She said the person was behind her and had his body up against her and his leg over her lower leg.118 85 The complainant said she thought the person was Mark Judd.119 She said as she was still annoyed with him, she tried to push him off by grabbing at the wrist of the person.120 She said that happened very quickly after she felt the fingers.121 86 The complainant said the person said “no, no, don’t’ worry. It’s not Mark, it’s me’.122 The complainant said she turned and saw it was not Mark Judd and 105 T52-36-T53.3. 106 T101.3-20. 107 T53.14. 108 T53.32-34. 109 T54.1-4. 110 T55.12-14. 111 T54.38-T55.4; T54.14-16; T54.7-9. 112 T56.24. 113 T174.27. 114 T75.5-6; T196.17-26; T198.6-11. 115 T175.21-22. 116 T55.28-T56.1. 117 T70.8-10. 118 T57.7-8. 119 T57.24-27. 120 T58.32-T59.3; T57.24-27. 121 T57.28-33. 122 T59.7. -- 12 of 23 -- [2024] SADC 113 11 pushed the person away, who then stood up.123 She said it was the accused and he had no shirt on and was partially covered by the quilt.124 87 The complainant said she then left the bedroom and went to the loungeroom and retrieved Mark Judd and they went to bed together.125 88 In cross examination, the complainant agreed the accused looked shocked after what had happened on the bed.126 She also accepted a prior inconsistent statement about how many fingers were inside her vagina when she woke up.127 89 The accused said he went down to the bedroom, called ‘N’, and she had responded ‘yeah’.128 He said he entered and sat on the opposite side of the bed.129 He said the complainant was under the covers and facing the other way. He said he put his hand near her ribs and said ‘N’.130 He said she turned around and he leant to try to kiss her but their lips had not made contact before she pulled away and appeared shocked.131 He said he also then pulled back and she had said ‘stop, what are you doing’? 132 90 The accused conceded he went to the bedroom because he thought he was in for a kiss or something more.133 He said he went in there thinking one thing and the total opposite happened as she said, ‘you need to go’, and he left.134 He said he had walked home and felt confused and embarrassed.135 91 The accused denied the allegation of rape.136 The initial complaint 92 The complainant did not say anything to Mark Judd about what had happened that night.137 She said the next morning in Mark Judd’s car with another man, when being driven home, on about South Road, Mark Judd asked her what was wrong with her. She said it was ‘Because I woke up with Clem’s fingers inside of me’.138 123 T59.10-12. 124 T60.14-17. 125 T60.27-T61.7. 126 T106.27-31. 127 T106.15-27. 128 T176.11-16. 129 T177.23; T177.8-9. 130 T178.21; T178.30-31. 131 T179.9-13. 132 T179.29. 133 T197.10-15; T178. 134 T180.3. 135 T180.15-16; T180.38-T181.2. 136 Ibid; T202.19-22; T214.33-T15.29. 137 T61.30-32. 138 T62.11-13; T62.27-28. -- 13 of 23 -- [2024] SADC 113 12 93 The complainant in cross- examination accepted Mark Judd reacted mildly to what she had told him and that had caused her to query her worth to him.139 The Facebook messages from the accused the next day 94 The complainant received messages from the accused via Facebook Messenger on 22 April 2014.140 Those messages said: 141 “hey n, I’m sorry bout the other night.” “i was beyond fucked, an i thought u knew it was me. I felt so embarrassed sorry” 95 The complainant did not respond.142 96 The accused said his reference in those messages to being ‘beyond fucked’, related to it being late that night and the general circumstances. He said he wrote ‘I thought you knew it was me’ because he had told her on Snapchat he was coming down to see her.143 He said in making that apology, ‘I sort of just wanted to lead from the front. Just so if she wanted to reach out I didn't really have any bad feelings I guess for her snapping at me’.144 He accepted she did not reply.145 97 In cross-examination, the accused said he had apologised because the complainant had snapped at him and he had thought there must have been something wrong. He said he deleted those messages because she had not responded and he had been embarrassed.146 He said he would rather take responsibility than blame someone and that he apologised because he embarrassed easily and was sorry it had not gone the way he thought it would. 98 The accused said he was aware of police interest in August 2022.147 The Facebook Messenger exchange between the complainant and the accused on 28 June 2014 99 On 28 June 2014, the accused went XL Superclub where the complainant was working. He received messages from the complainant and responded as follows:148 Complainant: Accused: Huh 139 T107.22-24. 140 T63.10-64.30; She had thought it was received ‘a week or so’ after the allegations; T68.13-15. 141 T65.37-T66.2. 142 T67.35-37. 143 T181.34-35. 144 T181.38-T182.2. 145 T182.6-7; T198.16-T199.17. 146 T204.20-22; T182.12-15. 147 T182.34-38; T203.26-31. 148 T183.3-35. -- 14 of 23 -- [2024] SADC 113 13 Complainant: Sorry I got so angry at you bout that things Complainant: All in the past now is all I mean Accused: Haha all good yeah i was beyond fucked that night. Its ok dw I regret the fuck outta it Complainant: Yeah me to and I was already pissed off from other shit that went down so its all good now Complainant: Thanks Accused: All good in the hood Complainant: Haha have a good night 100 The accused said he saw the complainant and they greeted each other normally before those messages were sent.149 He was glad to receive her messages and he said the ones he sent her were to try to create middle ground and move on.150 The other Facebook communications after 28 June 2014 101 The complainant Facebook liked a picture depicting the accused and another that he posted on 9 April 2014.151 She liked a profile picture of the accused on 10 June 2014.152 She created a Facebook group called ‘N’s XL door list’ and added the accused on 8 July 2014,153 to incentivise those on the list to come to the club.154 The complainant wrote a birthday message to the accused on 31 July 2014.155 The complainant liked a post of the accused thanking people for their birthday wishes.156 She said she did that as an act of support for her friends.157 The character evidence about the accused 102 John Hill said the accused was of good character and ‘very honest’, ‘naively innocent’, ‘intelligent’ and ‘dedicated’ and a ‘great, good person’.158 The submissions of the prosecution 103 The prosecution case was premised on five propositions. 104 First, the Facebook messages in their entirety were circumstantial evidence from which it should be inferred the accused was sexually interested in the complainant and had an intention to act upon that sexual attraction as alleged. 149 T183.24-T184.26. 150 Ibid. 151 T120.31-121.14. 152 T122.15-38. 153 T123.6-124.33. 154 T125.23-26. 155 T125.27-T126.2. 156 T126.8-20. 157 T129.14-17. 158 T217.13-T218.29. -- 15 of 23 -- [2024] SADC 113 14 105 Second, the complainant had been an honest and reliable witness when she said she had been asleep when the accused inserted two fingers in her vagina and, in respect of that evidence, it should be accepted beyond reasonable doubt. 106 Third, that the accused left the house without any goodbye is circumstantial evidence of flight from which an inference of his guilt can be drawn. 107 Fourth, the apology on 22 April 2014, is circumstantial evidence from which it should be inferred the accused laid a false trail.159 108 Fifth, the evidence of the accused should be rejected. 109 Particularly, it was submitted, his evidence he sent Snapchat messages was convenient and self- serving and his explanation he left the house without saying goodbye and had walked home because he was embarrassed was fanciful. 110 The prosecution conceded the complainant’s evidence in chief she had not messaged the accused before the alleged rape, and her acceptance in cross- examination she had, but had deleted those messages, impacted her credibility. 111 As for the initial complaint evidence, the prosecution submitted, it was of slight weight in the circumstances of this case. 112 As for the inconsistency in the account of the complainant to police that she had felt one and later two fingers, the prosecution suggested that might be explained by the passage of time and that she said she had been asleep. Submissions of the Defence 113 The defence submitted the complainant’s evidence in this case should be scrutinised with special care for several reasons:160 (1) she had a poor memory of the evening in question; (2) there were differences in her account of events between her evidence in chief and her evidence in cross examination (and within cross examination); (3) she had made a prior inconsistent statement on an important topic; (4) her confident but incorrect evidence was rebutted by objective evidence; (5) she had continued with contact with the accused after the alleged offending at her own instigation; and (6) her evidence was inherently unlikely. 114 As for the evidence of initial complaint, it was submitted to be of little probative value. 115 As for the messages exchanged prior to the alleged offending, the defence said they revealed a narrative at odds with the complainant’s version. 116 In respect of the messages sent by the accused on 22 April 2014, submitted the defence, then could not support guilt as it could not be independently 159 R v Loader (2004) 89 SASR 204; [2004] SASC 234. 160 R v Murray (1987) 11 NSWLR 12, [19]. -- 16 of 23 -- [2024] SADC 113 15 established they were a lie and were more consistent with the account of the accused. 117 The defence case was clear and consistent and should be accepted, it was submitted, if not entirely, then at least to the extent it was a reasonable possibility. 118 The evidence of good character, it was submitted, supported the credibility of the accused, making it less likely he committed the offence. Consideration 119 There is no dispute the complainant and accused, at the end of a long night out drinking with friends during which they had significantly interacted, were in the bedroom together at the Edwardstown house, about 6am on 22 April 2014. 120 The complainant was the crucial witness to prove the prosecution case that the accused had raped her over ten years ago in that room while asleep. 121 As well as her direct evidence, the prosecution relied on other circumstantial evidence and further urged a rejection of the evidence of the accused. 122 The real issue in this case is whether I accept the complainant’s evidence beyond reasonable doubt that she had been asleep in bed and had woken up to find the accused had inserted two of his fingers into her vagina. 123 To determine that real issue required my assessment of both the honesty and reliability of the complainant as a witness. 124 Given the nature of this alleged offending, I have kept in mind in undertaking that assessment that:161 there is no typical or normal response to non- consensual sexual activity;162 non- consensual sexual intercourse can occur between people who know each other and it can occur in many different circumstances;163 trauma may affect people differently and some people may show obvious signs of emotion or distress when giving evidence about an alleged sexual offence while others may not;164 and, the presence or absence of emotion or distress does not necessarily mean a person is not telling the truth about an alleged sexual offence.165 125 It is also well- established that evidence about the circumstances of an alleged rape, including what the accused and complainant did before, during and after the alleged sexual intercourse, is relevant. 126 In that respect, the complainant said in chief: she had no contact with the accused on a mobile before his messages on 22 April 2014;166 prior to that she had 161 Evidence Act 1923 (SA), s 34N. 162 Ibid. 163 Ibid. 164 Ibid. 165 Ibid. 166 T64.7-14. -- 17 of 23 -- [2024] SADC 113 16 never received a message from him;167 and, she had not interacted with him in any way at HQ or at Horus Bar.168 127 The complainant, when she gave that evidence, had recalled events ten years before. In such cases, objective, or contemporaneous evidence, if it is available, is usually to be preferred to the recollections of witnesses about events long past.169 128 The only material of that nature tendered on the prosecution case was a screenshot of the two messages sent on 22 April 2014.170 129 During cross- examination of the complainant, 138 direct messages from that morning between the complainant and the accused were tendered.171 130 That lengthy exchange on 21 April 2014, significantly aided my understanding of their discussions and relationship before this alleged offending. 131 Analysis of what was recorded and the circumstances of the non- provision of that exchange to Police also significantly diminished the credibility and reliability of the complainant as the crucial witness in this case. 132 Further, cross- examination by reference to those messages established important context relevant to the alleged offending and for the apology sent by the accused on 22 April 2014. 133 The messages record significant, meaningful, and intimate interactions. They were candid, dealt with serious relationship topics, were flirtatious and demonstrated rapport and sexual interest. 134 I have preferred that record to the account of the complainant about her interactions with the accused that night and morning at HQ and at the Horus Bar. 135 Particularly, going to her credibility and reliability, each of her denials of any interaction with the accused at that time were shown to be clearly incorrect. 136 In those messages the accused: engaged in sexual innuendo; sought to undermine Mark Judd; and made his sexual interest clear. In those messages the complainant was: responsive; understood the accused was sexually interested in her; encouraged that interest; and used sexualised and coded language which expressed a reciprocal sexual interest. 137 The messages also showed the complainant to be a poor historian. They referred to things disclaimed by her or things unable to be recalled, including her 167 T68.15-22. 168 T69.5-6. 169 Fox v Percy (2003) 214 CLR 118. 170 Exhibit P1. 171 Exhibit D3. -- 18 of 23 -- [2024] SADC 113 17 professed allergies, the burglary, the nature of her past relationships and the nature of her relationship with Mark Judd. 138 As for the circumstances of the deletion of those messages and her retention of others, the complainant said that had been ‘for a specific reason’. 139 While that reason was not elaborated, and I have not speculated about what it might have been, her acknowledged act of editing what was presented to police is of concern going to her credit. It does not sit comfortably at all with her clear and confident denials of any interaction whatsoever with the accused. I consider it significantly diminishes the veracity of the whole of her account and undermines the opened prosecution case. 140 As for the initial complaint evidence, it was limited to that of the complainant. She said she told Mark Judd and another friend of the accused as she was being driven home, that she had woken up with the accused fingers inside of her.172 Mark Judd declined to co- operate and was not called.173 The identity of other male in the car was unknown to the accused, and he was also not called. 141 I have only used that initial complaint evidence given by the complainant for a limited purpose. I have used it to understand how the allegations came to light and to consider the degree to which she acted consistently and to what extent she complained about the offending at the time expected, and to what extent her account had remained consistent from when she had first reported this offence. 142 I have not used her initial complaint evidence to demonstrate the truth of what she alleged. To decide the truth of what occurred, I have relied on the complainant’s first-hand evidence given in court and other evidence I accept. 143 When assessing her initial complaint evidence, I have considered there may be many reasons why she told the persons she did about the alleged offence at the time, or why she chose to tell those persons, rather than another. 144 Her complaint evidence was consistent with her evidence as to the sexual act alleged. Her complaint was also timely and Mark Judd was a person you might expect her to make an initial complaint to. 145 That the two persons to whom the complaint was made were not called does go to diminish the weight I can accord that evidence.174 146 As for the single prior inconsistent statement the parties agreed the complainant had made in her out of court statement to police, usually the law does 172 T62.25-35. 173 As Mark Judd had declined to co-operate with the prosecution, he was not called to give evidence; Exhibit P12 Agreed Fact 4. 174 See my exchange with counsel for the prosecution at T224.9- 16; As for Mark Judd it was an agreed fact ( Exhibit P12, [4]) he was requested by police to provide an affidavit but declined to do so. As for the other person in the car, the complainant was unable to say who that was at trial, T62.7-10. -- 19 of 23 -- [2024] SADC 113 18 not allow a trier of fact to use what a person has said outside court as evidence to prove the truth of what the person has said in evidence. 147 I do accept there was an inconsistency between the complainant’s evidence of two fingers inside her vagina when she awoke and what she told police, that her first perception was of a single finger and then of two fingers.175 148 I have only used that prior inconsistent statement made by the complainant to assess her credibility and reliability. I have not used that prior inconsistent statement for any other purpose. I have not used it as evidence of what occurred. 149 I have given it some weight in my assessment of her reliability but have also kept in mind the passage of time, and that the complainant said she was asleep. 150 As for the circumstantial evidence upon which the prosecution also relied, the approach to such evidence is well settled. 151 As the prosecution relied upon circumstantial evidence in this case to infer what the accused was thinking, I am allowed to draw inferences or conclusions from facts I find established. 152 The proper approach is to assess the combined effect of the items of circumstantial evidence which I accept and consider whether, as a matter of inference, they prove the accused committed the offence. The accused cannot be convicted unless his guilt has been proved beyond reasonable doubt. 153 I must consider the possibility the circumstantial evidence relied upon by the prosecution does not necessarily point to guilt. I cannot find guilt unless those circumstances exclude any rational or reasonable hypothesis or theory or explanation consistent with innocence. I must be satisfied guilt is the only rational inference to be drawn from the facts or circumstances proved. 154 The Facebook messages, in their entirety, were relied upon as circumstantial evidence from which it could be inferred the accused was sexually interested in the complainant and intended to act upon that sexual attraction as alleged. 155 I am satisfied of his sexual interest. That was his own evidence. 156 I have not though drawn an inference from those messages that the accused intended to act upon that sexual interest by engaging in non- consensual sexual intercourse with the complainant. There is no textual support for that in the messages. They are not predatory or violent or threatening and the sexualised talk is reciprocated. 157 Further, considering the exchange in its entirety, the interaction at HQ, the encouragement given by the complainant for the accused to go to Horus and the ‘private’ nature of their messaging there, a reasonable inference cannot be 175 T55.28-56.1. -- 20 of 23 -- [2024] SADC 113 19 excluded that the accused thought the complainant might consent to have sex at the Edwardstown house that morning or somewhere else at some other time. 158 As for the prosecution submission the fact the accused left the house in a rush is evidence of flight from which an inference of his guilt can be drawn, the proper approach to decide whether to use evidence that way involves two steps. 159 First, I must consider whether I accept the accused did flee the house after the interaction in the bedroom. 160 I do accept his evidence he fled the bedroom and house quickly. 161 Second, I must consider whether the accused fled the scene of the alleged offending because he knew he had committed rape or whether his flight could have been for some other reason.176 162 The accused said he left the house without saying goodbye and had walked home to Pasadena because he was embarrassed. In my view, that is not a fanciful explanation considered together with all the evidence I accept. 163 The accused said he considered the complainant was sexually interested in him. As already explained, I have not been able to exclude as a reasonable possibility their interactions encouraged his thoughts of consensual sex. 164 Further, the evidence of the accused and the complainant was consistent to the extent each said his presence in the bedroom was clearly rejected. 165 On his version, the accused had pursued his interest, which he thought was reciprocated, and he had been utterly rejected. Embarrassment, together with a desire to get out quickly, would be an unsurprising reaction in such circumstance. 166 Given that, I cannot exclude as a reasonable possibility the accused’s flight from the bedroom had been because he was embarrassed by his rejection and did not want to face the complainant or his friends or both.177 167 The prosecution suggested the evidence the accused decided to walk rather than get a taxi was fanciful, as he was tired and it was long way to his home. 168 Life experience though tells me that such behaviour from people who have been out all-night drinking does happen. It was early in the morning and would have been light soon. If he had waited for a cab, he risked further embarrassed interaction with the complainant or the need to provide an explanation to the 176 R v Wildy (2011) 111 SASR 189; [2011] SASCFC 131, [30], [82]–[84]. Importantly, even if I do think the accused’s flight is evidence of guilt I must still consider all the evidence when deciding whether the prosecution has proved guilt beyond reasonable doubt. 177 R v Wildy (2011) 111 SASR 189; [2011] SASCFC 131 [24]–[26]. -- 21 of 23 -- [2024] SADC 113 20 others. I do not consider that walking home to Pasadena in such circumstances was a fanciful thing to have done. 169 As for the evidence the accused sent Snapchat messages to the complainant and she encouraged him in response to come down to the bedroom, the prosecution urged me to reject that evidence completely. 170 I do agree that evidence can be seen as convenient and self- serving as Snapchat does not retain messages, like Messenger does, and he had only used Messenger up to that point. While I am sceptical about that evidence, I cannot reject its use as a reasonable possibility, having regard to other evidence. 171 When the complainant had earlier added the accused on Facebook, he had straight away used Messenger to direct message her. The complainant had given the accused her Snapchat username earlier that morning and he had connected with her and was able to message if he wished.178 172 Further, connecting over and using multiple platforms made sense assessed against the evidence of the accused that he commonly communicated via multiple platforms.179 173 As for whether the apology of the accused by Messenger on 22 April 2014, is circumstantial evidence to infer he laid a false trial, the accused said his apology also reflected his embarrassment and confusion at being rejected. He explained he sent those messages because he wanted to be up front and apologise for any part he had played in what had happened between them. He said he deleted his apology from Messenger later, because the complainant had not replied. 174 As already explained, the evidence supports the reasonable possibility the accused was encouraged by the complainant to consider she was sexually interested. Further, it was established his presence in the bedroom was rejected. 175 The accused evidence about why he apologised therefore cannot be said to be implausible. I cannot exclude it as a reasonable explanation consistent with his innocence and I have not drawn the inference about the apology contended. 176 As for the character evidence given by Mr John Hill, it is relevant to the probability the accused committed rape. The defence argues the accused is a person of good character, and so less likely to have committed these offences. 177 While I have accepted that evidence and have given it some weight, the good character of the accused does not mean I must find him not guilty as I may accept other evidence and conclude he is guilty. Sometimes a person of previously good character is found to have committed a crime for the first time. 178 Exhibit D14. 179 T210.3-7. -- 22 of 23 -- [2024] SADC 113 21 178 For all the reasons explained, the veracity of the complainant’s evidence has been very significantly diminished. That has caused me to reasonably doubt her credibility and reliability in respect of what happened in the bedroom. 179 Given that, the prosecution has not satisfied me beyond reasonable doubt the accused is guilty of the offence of rape as charged and alleged. Verdict 180 Accordingly, I find the accused not guilty. -- 23 of 23 --