[2024] SADC 165

Prosecution: R Counsel: MR T MACURA - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) MR Y ZHAO: Counsel: MS J POWELL - Solicitor: D'ANGELO LAWYERS Hearing Date/s: 13/08/2024, 14/08/2024, 15/08/2024, 16/08/2024, 14/10/2024, 15/10/2024, 16/10/2024, 17/10/2024, 18/10/2024 File No/s: DCCRM-23-028219 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 ZHAO Criminal Trial by Judge Alone [2024] SADC 165 Reasons for the Verdict of her Honour Judge Schammer 18 December 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - STATEMENTS MADE IN PRESENCE OF ACCUSED AND RELATED CONDUCT - PARTICULAR CONDUCT CRIMINAL LAW - EVIDENCE - COMPLAINTS CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY The accused, Yibo Zhao, is charged on Information dated 28 September 2023 with one count of rape, pursuant to s 48 of the Criminal Law Consolidation Act 1935 (the Act) (count 1) and, in the alternative, one count of Unlawful Sexual Intercourse with a person under the age of 17 years, pursuant to s 49(3) of the Act (count 2). The alleged offending occurred at Newton on 7 November 2022. The complainant, ZQ, (date of birth: 10 July 2006) was a 16-year-old international student, attending high school in Adelaide. The accused was also an international student, attending a different high school in Adelaide. The accused turned 18 on 24 October 2022. ZQ and the accused commenced a romantic relationship in July 2022, during which they engaged in consensual sexual activity. On at least one such occasion, the accused filmed that consensual sexual activity. He retained the recording of that sexual activity on his mobile phone. The recording was in evidence (the video). ZQ claims that she broke off the relationship with the accused in September 2022. Thereafter, she claims that the accused threatened to release this recording (or other similar recordings) unless she -- 1 of 119 -- continued to engage in sexual activity with him (the threats). Evidence was led at trial of social media communications made between the accused and ZQ, in Mandarin, translated into English, during which the accused made various threats to ZQ. In issue was the precise nature of those threats. ZQ claims that because of the threats, she engaged in sexual intercourse with the accused, against her will on Monday 7 November 2022 at the accused’s homestay residence in Newton. She reported the alleged offending to police on Thursday 10 November 2022. The accused denied engaging in sexual intercourse with ZQ on 7 November 2022, or on any day after he turned 18. The defence case was that on Wednesday 9 November 2022, ZQ stabbed the accused multiple times when he tried to stop her from carrying through with threats to engage in self-harm. This was said to give rise to a potential motive for ZQ to lie about the alleged offending. Another potential motive to lie was said to arise from the accused’s demands that ZQ refund him a sum a money equivalent to the cost he incurred to purchase her gifts during their relationship. On 10 November 2022 and after ZQ had reported the alleged offending to police, the accused sent messages to his homestay host, which the prosecution relied upon as constituting an implied admission as to the offending. The accused did not give evidence but called evidence from two friends. ZQ gave evidence by way of two prescribed interviews and at trial with the assistance of an interpreter. Although important aspects of ZQ’s account were supported by other evidence, ZQ was a poor witness, and there were several inconsistencies and anomalies in her evidence, which impacted negatively on the Court’s assessment of her evidence. Findings: The accused made the threats as alleged by ZQ. Notwithstanding the threats, ZQ continued to communicate with the accused online and to see him for purposes other than engaging in forced sexual activity. ZQ‘s ongoing communications with the accused demonstrated she still held romantic feelings for him, notwithstanding the threats. In such circumstances, the Court cannot exclude, as a reasonable possibility, either that ZQ willingly engaged in sexual intercourse with the accused on 7 November 2022 or that ZQ did not engage in sexual intercourse with the accused on 7 November 2022. Verdict: Not guilty as to both counts. Criminal Law Consolidation Act 1935 (SA) ss 46(3)(a)(ii), 47, 48, 49(3), 49(4)(b)(ii); Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) ss 13BA, 34M, 34N, 34P; Summary Offences Act 1953 (SA) Part 17 Division 3, referred to. Edwards v The Queen (1993) 178 CLR 193; Murray v R (2002) 211 CLR 193; R v MMJ [2006] VSCA 226, considered. -- 2 of 119 -- R v ZHAO [2024] SADC 165 [Criminal] Introduction 1 The accused, Yibo Zhao, is charged on Information dated 28 September 2023 with one count of rape, pursuant to s 48 of the Criminal Law Consolidation Act 1935 (the Act) (count 1). In the alternative, the accused is charged with one count of Unlawful Sexual Intercourse with a person under the age of 17 years, pursuant to s 49(3) of the Act (count 2). 2 The alleged offending occurred at Newton on 7 November 2022. The complainant, ZQ, (date of birth: 10 July 2006) was a 16-year-old international student, attending high school in Adelaide.1 The accused was also an international student, attending a different high school in Adelaide. He turned 18 on 24 October 2022.2 3 In mid to late July 2022, ZQ and the accused, who was then aged 17, commenced a romantic relationship, during which they engaged in consensual sexual activity. There is no dispute that on at least one such occasion, the accused filmed that consensual sexual activity (the video). 4 ZQ claims that she broke off the relationship with the accused in about September 2022. Thereafter, ZQ claims that the accused threatened to release the video, and/or other videos, depicting her engaging in sexual activity with him, unless she continued to engage in sexual activity with him (the threats). ZQ claims that because of the threats, she continued to engage in sexual activity with the accused, against her will (the forced sexual activity). 5 The last occasion of forced sexual activity is alleged to have occurred on Monday 7 November 2022 at the accused’s homestay residence in Newton. ZQ claims that on that day, the accused engaged in penile vaginal intercourse with her, during which he put his hands across her neck and mouth to stop her screaming. 6 The prosecution case is that ZQ did not consent to engage in sexual intercourse with the accused at that time, as she was coerced to engage in that activity because of the threats and that the accused knew, or was recklessly indifferent to the fact that she did not consent to such activity (count 1). 7 In the alternative, the prosecution case is that when the accused and ZQ engaged in sexual intercourse on that day, the accused was aged 18 and he knew that ZQ was aged 16 (count 2). 1 Exhibit P21 at [1]. 2 Exhibit P21 at [2]. -- 3 of 119 -- [2024] SADC 165 2 8 The accused denies engaging in sexual intercourse with ZQ on 7 November 2022, or on any day after he turned 18. 9 The accused elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act 1927. Elements of the Charged Offences 10 As to count 1, the offence of rape, the prosecution must prove the following three elements beyond reasonable doubt: (1) An act of sexual intercourse took place between the accused and ZQ; (2) ZQ did not consent to engaging in sexual intercourse; (3) The accused knew or was recklessly indifferent to the fact that ZQ was not consenting. 11 ‘Sexual intercourse’ includes any activity involving or consisting of the penetration of a person’s vagina or labia majora, by any part of the body of another person, or by any object and includes the continuation of such activity. 12 As to the second element of the offence, consent to sexual intercourse must be freely and voluntarily given. 13 It is not necessary for a person to demonstrate that they do not consent, for example, by protesting or physically resisting, nor is it necessary for a person to be physically injured in the course of sexual activity to indicate a lack of consent. 14 A person is taken not to have freely and voluntarily agreed to sexual activity if the person agrees because of an express or implied threat to degrade, humiliate, disgrace or harass the person.3 As such, in the circumstances of this case, if the prosecution proves beyond reasonable doubt that sexual intercourse occurred and that ZQ agreed to engage in sexual intercourse because of the threats, this element will be proved. 15 The third element of the offence relates to the accused’s state of mind. The prosecution must prove beyond reasonable doubt that the accused knew that ZQ was not consenting, or that he was recklessly indifferent to the fact she was not consenting. As to the latter – the prosecution will establish the accused was ‘recklessly indifferent’ to the fact ZQ was not consenting, if it proves beyond reasonable doubt either:4 (a) that the accused was aware of the possibility that ZQ might not be consenting to sexual intercourse, but decided to proceed regardless of that possibility; or 3 Section 46(3)(a)(ii) of the Act. 4 Section 47 of the Act. -- 4 of 119 -- [2024] SADC 165 3 (b) that the accused failed to take reasonable steps to ascertain whether ZQ did in fact consent to the activity; or (c) that the accused did not give any thought as to whether or not ZQ was consenting but proceeded regardless. 16 The prosecution case is that the accused knew ZQ did not consent to the activity because he knew she only agreed to have sexual intercourse with him because of the threats. Although not expressly raised by the prosecutor, on ZQ’s evidence, she attempted to physically resist the accused during the sexual activity and was screaming. If that evidence is accepted, it may also provide the factual basis from which it could be inferred that the accused knew ZQ was not consenting to engage in sexual intercourse with him. 17 As previously stated, the defence case was that no sexual intercourse took place between the accused and ZQ on the date as alleged. However, the very fact that count 2 is charged in the alternative demonstrates that ZQ’s lack of consent is in issue. As such, insofar as is necessary, I direct myself in accordance with the requirements of s 34N of the Evidence Act (SA) 1929 (EA). 18 As to count 2, the offence of Unlawful Sexual Intercourse with a person under 17 years, the prosecution must prove the following two elements beyond reasonable doubt: (1) An act of sexual intercourse took place between the accused and ZQ; and (2) ZQ was aged under 17 at the time. 19 ZQ was aged 16 on the date of the alleged offence. The accused was aged 18. It is a defence to the charge if the accused believed, on reasonable grounds, that ZQ was of or above the age of 17 years.5 Witnesses and Exhibits 20 The prosecution called evidence from the following witnesses: 1. The complainant, ZQ. ZQ required the assistance of a Mandarin interpreter; 2. Ms M Zhou, the teacher to whom ZQ first complained about the alleged offending; 3. Mr M Colella, the accused’s homestay host; and 4. Detective Brevet Sergeant A Gracin, the investigating officer. 21 Numerous exhibits were tendered. These included: 5 Section 49(4)(b)(ii) of the Act. -- 5 of 119 -- [2024] SADC 165 4 • an audio-visual recording of an interview conducted between Detective Brevet Sergeant Perry (Officer Perry) and ZQ on 12 November 2022 (the first ZQ interview);6 • an audio-visual recording of an interview conducted between Detective Brevet Sergeant Close (Officer Close) and ZQ on 28 March 2023 (the second ZQ interview);7 • a copy of the video;8 • copies of various communications between ZQ and the accused made over Instagram.9 These messages were in Mandarin and translated into English. Although translated by a certified interpreter, there were several errors in the translation; • a table of DNA results;10 and • a series of screenshots from Mr Colella’s mobile phone depicting communications he had with the accused on Thursday 10 November 2022.11 22 In addition, various facts were agreed.12 23 The accused elected not to give evidence but called evidence from A, who was an international student living at the same homestay accommodation as the accused on the relevant date and from his friend, BQ. Both A and BQ gave their evidence through a Mandarin interpreter. 24 The accused also tendered exhibits including extracts of various audio and video files,13 together with screenshots taken from his phone of various communications exchanged between him and ZQ in Mandarin and an English translation of those messages.14 Legal Directions General 25 The prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. There is no onus on the accused to prove anything. It is not for the accused to prove that he did not commit the offence(s) as charged. 6 Exhibit P1, with a transcript of the recording provided as MFI P2. 7 Exhibit P3, with a transcript of the recording provided as MFI P4. 8 Exhibit P7. 9 Exhibits P5 and P6. 10 Exhibit P20. 11 Exhibit P18. 12 Exhibit P21. 13 Exhibit D22. 14 Exhibits D8, D9, D10, D12, D13 and D17. -- 6 of 119 -- [2024] SADC 165 5 26 The accused is presumed by law to be innocent of each charge unless and until the evidence that I accept satisfies me that every element of the offence has been proved beyond reasonable doubt. Nothing short of proof beyond reasonable doubt will suffice. 27 It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. Before the accused is convicted of an offence, I must be satisfied that the prosecution has proved beyond reasonable doubt each element of the offence. I must reject beyond reasonable doubt the accused’s denial and any explanation(s) proffered by him. 28 In these reasons, if I use the words ‘proved’, ‘established’ or ‘satisfied’, I mean to a standard of beyond reasonable doubt. If I am satisfied that there is a reasonable explanation consistent with the innocence of the accused, or I am uncertain where the truth lies, as to either count, then I must find that count has not been proven beyond reasonable doubt. 29 I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence that a witness gives. I can reject or accept all or a part of a witness’s evidence. 30 ZQ’s evidence is critical to the prosecution case. I must carefully scrutinise her evidence before I can be satisfied beyond reasonable doubt of its truthfulness and accuracy. 31 An application was made for the audio-visual recordings of the first and second ZQ interviews to be admitted into evidence pursuant to s 13BA of the Evidence Act 1929 (EA).15 Each audiovisual record was made in accordance with Part 17 Division 3 of the Summary Offences Act 1953 and at the time each audiovisual record was made, ZQ had the capacity to give either unsworn or sworn evidence. ZQ also made herself available for further examination, cross- examination and re-examination. 32 I must not draw any inference adverse to the accused because the evidence was admitted in this form, nor must I allow this to influence the weight given to that evidence. 33 ZQ gave further evidence in chief and by way of cross-examination. When she gave her evidence, she did so from outside of the courtroom, via closed circuit television. The court was closed and her evidence was recorded. I must not draw any inference adverse to the accused because of these arrangements, nor must these arrangements influence the weight I give to ZQ’s evidence. 34 The accused elected not to give evidence. As a matter of law there can be no criticism of the accused for doing that. The accused has a right to decline to give evidence and I must not draw any inference adverse to him or the case he has put 15 Interlocutory Application dated 2 May 2024, FDN 34. The application was not opposed. -- 7 of 119 -- [2024] SADC 165 6 forward because he has exercised that right. The accused’s silence in this Court does not constitute an admission against him and it cannot be used to fill any gaps in the evidence tendered by the prosecution. His silence cannot be used in assessing whether the prosecution has proven the elements of any offence beyond reasonable doubt. 35 There were several potential witnesses who were not called to give evidence, including ZQ’s host mother and ZQ’s friends, C, J and P. The prosecution bears the onus of proof in this case. I must decide the case only on the evidence before me. If that evidence is insufficient to support a finding of guilt beyond reasonable doubt as to a count or counts, I must find the accused not guilty of the count or counts. I must not speculate about the nature of any evidence I have not heard. I simply do not know what evidence may have been given by any absent witness. I must decide the case only on the evidence before me. 36 As to the making of inferences, I must not guess or speculate. There must be a logical and rational connection between the facts I find and the inferences I draw. 37 I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice, or fear and must not be influenced by public opinion in relation to this matter. Complaint Evidence 38 ZQ and Mrs Zhou gave evidence about a conversation they had on Thursday 10 November 2022, wherein ZQ told Mrs Zhou about the alleged offending. This evidence was admitted as evidence of complaint pursuant to s 34M of the EA. 39 Complaint evidence is an exception to the rule which prohibits proof of prior consistent statements made out of court. Complaint evidence is admitted to inform the trier of fact how the allegation first came to light and as evidence of the degree of consistency of conduct of the complainant. It is relevant therefore to my assessment of ZQ’s reliability and credibility. 40 There may be many and varied reasons why an alleged victim of a sexual offence has made a complaint at a particular time or to a particular person. It is for me to determine the significance (if any) of the evidence in the circumstances of this particular case. 41 Importantly, this evidence was not admitted as evidence of the truth of what was alleged and cannot be used as some form of independent evidence to prove what happened. -- 8 of 119 -- [2024] SADC 165 7 Discreditable Conduct 42 Evidence of discreditable conduct was adduced and admitted at trial pursuant to s 34P of the EA, for permissible purposes which did not rely on propensity reasoning.16 43 ZQ gave evidence that there were several other occasions, prior to the alleged offending, when she engaged in forced sexual activity with the accused because of the threats. This evidence was led without objection. 44 The evidence was led for permissible purposes which did not engage propensity reasoning, namely to provide context to the alleged offending and to explain why it was that ZQ submitted to the threats, which were ongoing. 45 I am satisfied that the probative value of this evidence outweighs any prejudicial effect it may have on the accused. 46 ZQ gave evidence that the accused filmed them engaging in consensual sexual activity without her consent. The video was tendered. This evidence was led without objection. In addition, ZQ gave evidence that the accused had threatened to send the video (or other similar videos) to others, if she did not continue to have sex with him. 47 The evidence was led for a permissible purpose which did not engage propensity reasoning, namely, to provide context as to the nature of the relationship between ZQ and the accused, being one where ZQ was alleged to have been subjected to a degree of control and coercion by the accused. It was also evidence integral to the prosecution case as to the threats and to explain why ZQ attended the accused’s house at Newton on the day of the alleged offending. 48 I am satisfied that the probative value of this evidence outweighs any prejudicial effect it may have on the accused. 49 ZQ gave evidence that on occasions other than the charged act, during forced sexual activity with the accused, he would choke and/or strangle her and/or put his hand over her mouth. She also gave evidence of an occasion in mid to late October 2022 when the accused struck her on the hand with his phone, causing it to be bruised and swollen. 50 This evidence was led for a permissible purpose which did not engage propensity reasoning, namely, to demonstrate the nature of the relationship between ZQ and the accused after they had broken up, being one said to be characterised by a power imbalance, where the accused controlled aspects of ZQ’s behaviour. It was also relevant and admissible to explain why ZQ submitted to the alleged offending. The evidence was led without objection. 16 The prosecution disavowed any reliance on the Discreditable Conduct Notice filed on 28 September 2023, FDN 16; T 13.12-17. -- 9 of 119 -- [2024] SADC 165 8 51 I am satisfied that the probative value of this evidence outweighs any prejudicial effect it may have on the accused. 52 If I accept some or all of the discreditable conduct evidence, I must only use that evidence for the permissible purpose or purposes as specified. I must not use that evidence to reason that the accused is more likely to have committed either of the offences because of this conduct. Further, I must not reason from this evidence that the accused is a person of bad character and is therefore the type of person who would commit either of the alleged offences. 53 If any evidence of discreditable conduct is essential to my process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted, are established beyond reasonable doubt. Implied Admission/Consciousness of Guilt 54 Exhibit P18 was admitted as an exception to the hearsay rule, insofar as it was said to be evidence of an implied admission of the accused, namely that he knew ZQ was aged 16 and/or that he had engaged in illegal sexual intercourse with ZQ when she was aged 16. The exhibit was tendered without objection. 55 As the trier of fact, I must determine whether any admission was made, and if so, what was the subject matter of the admission. I must also determine the significance of the statement(s) made by the accused and consider any (other) possible explanation(s) for what was said. 56 The prosecutor expressly disavowed any reliance on this evidence as demonstrating a consciousness of guilt and I have not used this evidence in this way. 57 Exhibit P6 is a series of Instagram messages exchanged between ZQ and the accused on 10 November 2022, the day ZQ reported the alleged offending to the police.17 During those messages, ZQ informed the accused that she had been to the police station and given a statement. 58 The prosecution did not rely on the accused’s immediate response(s) to learning this, that is, in sending ZQ the messages which followed, as being demonstrative of any implied admission by silence and/or indicative of a consciousness of guilt. As such, I have not used that evidence in either of those ways. Lies/Consciousness of Guilt 59 Exhibit P18 includes a copy of a photograph sent by the accused to Mr Colella depicting some wounds to his arm. The accused told Mr Colella that ZQ had stabbed him the night before (Wednesday 9 November). BQ gave evidence 17 These messages are reproduced at [231]. -- 10 of 119 -- [2024] SADC 165 9 that on Thursday 10 November, the accused showed him various cuttings on his body and told him that ZQ had inflicted these injuries, with a knife, the day before. 60 It was the prosecution case that the accused lied to both Mr Colella and BQ about ZQ stabbing him on Wednesday 9 November 2022. It was the prosecution case that in fact the injury to the accused’s arm was caused when ZQ had scratched him with her long fingernails when she was trying to resist him during the rape on Monday 7 November. 61 As I will outline later in these reasons, the prosecution did not expressly submit that this was a lie told by the accused out of a consciousness of guilt. Rather the precise submission made was as follows:18 [this was] a self-serving explanation about the injury to his arm where he advances this explanation about [ZQ] stabbing him which I say is self-serving and untrue. He’s tried to paint [ZQ] as the aggressor and by doing that gets some sympathy from Mr Colella. I say that those messages are nothing more than to paint [ZQ] in a negative light and try to paint himself as the victim. 62 The prosecution could only rely on this alleged lie as corroborating ZQ’s evidence, and as therefore indicative of a consciousness of guilt, if the untruthfulness of the statement was able to be established other than through ZQ’s evidence.19 In this case, the only other (admissible) evidence as to the cause of the accused’s forearm injury, was ZQ’s evidence that she had scratched the accused’s arm during the alleged offending.20 As such, the alleged lie cannot be established other than through ZQ’s evidence. It cannot be relied upon to demonstrate any consciousness of guilt. 63 Whether or not the accused has told a lie is a matter for me to determine. 64 If I conclude the accused lied, I cannot use this as evidence of his guilt.21 It does not, of itself, add to the prosecution case. 65 I must carefully assess all of the evidence to determine whether the prosecution has proved its case, as to either count, beyond reasonable doubt. Motive to Lie 66 The accused contended that ZQ had a motive to lie about the offending, namely, to deflect blame and attention away from her in circumstances where she was alleged to have stabbed the accused several times with a knife, the evening 18 T 287.7-15. 19 Edwards v The Queen (1993) 178 CLR 193, 211. 20 MFI P2 at line 364. 21 As outlined below, this was evidence relevant to a potential motive for ZQ to lie about the alleged offending. -- 11 of 119 -- [2024] SADC 165 10 prior to her reporting the alleged offending, when he stopped her from engaging in self-harm. 67 In addition, ZQ was cross-examined to the effect that she had made the allegations in response to the accused demanding he pay her money to reimburse him for expensive gifts he had given her during the relationship. 68 I must consider the possibility of a motive (or motives) for ZQ to lie, as this is relevant to ZQ’s credibility. 69 Even if I reject the existence of any alleged motive to lie, the absence of any such motive does not strengthen the prosecution case, rather the position remains neutral. 70 ZQ’s evidence is critical to the prosecution case as to each count. As such, I must be satisfied that her evidence is both true and accurate. It is not for the accused to demonstrate or prove to me that she is wrong or lying. There may be many reasons that a witness may lie and I must not speculate about those. 71 I must not treat ZQ’s evidence as being more credible or more believable simply because there is no evidence to provide a reason for why she might be lying. I must carefully consider all of the evidence to determine whether I am satisfied as to her credibility and reliability. Prosecution Case Complainant’s Evidence Introduction 72 ZQ participated in two prescribed interviews on 12 November 2022 and on 28 March 2023, at which time she was aged 16. She was interviewed by a different officer and assisted by a different interpreter at each interview. 73 During each interview, ZQ was clearly reluctant to describe occasions when she had engaged in sexual activity with the accused. There are aspects of the second ZQ interview, in particular, which are difficult to properly understand, due to this reluctance. 74 ZQ also gave further evidence-in-chief and was cross-examined at trial, again with the assistance of several different interpreters. At the time of trial, ZQ was aged 18 and living in Sydney. She was required to travel to Adelaide twice to complete her evidence, given difficulties which were encountered in facilitating interpreters. -- 12 of 119 -- [2024] SADC 165 11 Personal Circumstances 75 ZQ gave evidence that she came to Australia in February 2022 as an international student. She lived with a host mother at Hove with two other international students. She caught a train from Hove to the city to attend school.22 Relationship with the Accused 76 ZQ gave evidence that she met the accused at an ice-skating event organised for international students in July 2022 and they commenced a romantic relationship, shortly thereafter, in mid-July 2022.23 ZQ was in Year 10. The accused was in Year 11 at a different school.24 They knew how old each other was, because they knew each other’s birthdays.25 They had told each other their birthdays after the ice skating and before they started their romantic relationship.26 77 ZQ and the accused communicated in Mandarin. They communicated online via WeChat and Instagram. In addition, ZQ would catch the bus from the city to visit the accused at his homestay house at Newton, after school, one or two days a week. To get home, she would catch a bus to the city and then a train to Hove. She rarely visited the accused on the weekend. Sometimes they would play video games or study at his house. However, ZQ disagreed with a proposition that sometimes when she visited, the accused would cook a meal for her in the kitchen.27 78 ZQ never told her host mother that she was seeing the accused. She said it was unnecessary for her to let her host mother know where she was going, if it was before her 9:00pm curfew.28 She said she never stayed out past 9:00pm, so she never needed to ask her homestay mother for permission to do so. She said she never lied to her home stay mother.29 79 Various audio files (in Mandarin) were played to ZQ in cross-examination and propositions put to her, to contradict that evidence. These audio files were not translated, nor time stamped and as such it was impossible to determine whether they represented the entirety of a conversation (or conversations). ZQ did not agree with many of the propositions put to her. There was no evidence to the contrary. 80 However, ZQ did give evidence in cross-examination that the accused wanted her to go to his house for a party and to stay overnight and that he wanted her to lie to facilitate this. She agreed that they discussed using another person, ‘aunty’ to provide an excuse. ZQ told the accused that she knew what to say to her host mother and to leave it with her to manage. ZQ gave evidence that although 22 T 82.27-83.7. 23 MFI P2 at lines 30 and 47; MFI P4 at lines 1399-1431. 24 T 84.2-18. 25 MFI P2 at line 82. 26 MFI P4 at lines 1515-1533. 27 T 84.37-85.3; T 85.18-37; T 87.34-88.22. 28 T 86.11-22. 29 T 95.31-96.9. -- 13 of 119 -- [2024] SADC 165 12 this never actually eventuated, she was prepared to lie to her homestay mother at that time.30 81 ZQ denied a proposition put to her that she and the accused had in fact used a woman known as ‘aunty’ to help her lie to her homestay mother.31 There was no evidence to the contrary.32 82 During the relationship, the accused worked at a restaurant in Chinatown. If the accused was working at night, ZQ would not visit him after school that day. ZQ worked at the same Chinatown restaurant for a few weeks, however she never worked the same shift as the accused.33 83 ZQ gave evidence that she started having consensual sexual intercourse with the accused at the end of July 2022. She said they would have sex about once a week, at his place. This was ‘the most common natural form of sex’, later confirmed to be penile vaginal sex. The accused wore a condom once or twice and would ejaculate outside of her.34 84 ZQ said that she and the accused liked one another and it was a normal relationship. They would hang out and play together.35 They attended the cinema and karaoke together in the city on 14 July, met in Rundle Mall on 15 July, went together to Glenelg on 20 July and spent time together at Belair National Park on 21 July. On occasions when they were out together, ZQ and the accused would record themselves or take photographs.36 85 During the relationship, the accused bought ZQ some gifts, including a designer lipstick, some designer earrings and a Louis Vuitton bracelet. ZQ said she accepted the first two gifts, because at that time the relationship was good. She refused to accept the bracelet, which was offered at a time when the relationship was not good.37 86 In cross-examination, ZQ gave evidence that she sent the accused an audio message, at a time when they were no longer in a relationship, wherein she told him she had left a bracelet at the restaurant where they worked in Chinatown and asked him to see if it was in a compartment there. The accused sent her an audio message in response, saying that he had looked for it but could not find it. 30 T 96.12-100.25; T 104.37-105.4. 31 T 105.8-16. 32 Noting that ZQ did agree that a voice message sent to her by the accused included a discussion about some kind of assistance being provided to them by ‘aunty’ in the context of ZQ’s homestay family making things difficult; T 104.8-26. 33 T 87.7-24. 34 MFI P2 at lines 90-98, 483-513. 35 MFI P4 at lines 1429-1452. 36 T 92.7-93.4. 37 T 53.24-54.13; T 91.7-32. -- 14 of 119 -- [2024] SADC 165 13 ZQ denied this was a bracelet the accused had given her and said it was from her mother.38 There was no evidence to the contrary. The Video(s) 87 ZQ gave evidence that during the relationship, the accused recorded her engaging in sexual activity with him using a handheld mobile phone. She said she thought he had done this on two or three occasions. She noticed the accused was recording and asked him to stop recording but he did not stop recording. She tried to grab the accused’s phone to stop him from recording but was unsuccessful. 39 88 Exhibit P7 is a disc containing an audiovisual recording created on 21 August 2022 (the video).40 The video depicts ZQ and the accused in his bedroom at Newton and was obtained by police from the accused’s mobile phone.41 89 The video depicts ZQ putting her mouth on the accused’s penis. ZQ can be seen to try unsuccessfully to take the phone away from the accused and to use her finger and hand to try to cover the camera, both before and after the act of fellatio. It is apparent from the video, and I find, that ZQ was reluctant to be filmed, however, with the accused’s encouragement, she continued to engage in fellatio with him. 90 The voices of both ZQ and the accused speaking in Mandarin, can be heard on the video. However, there was no translation (or transcript) produced to the Court of the audio on that recording. 91 ZQ gave evidence during the second ZQ interview and at trial that she had never actually seen what was on the video (or videos).42 92 She thought the video was recorded in around late July or early August, being at a time when she still had happy, positive feelings about the relationship.43 The Break-up 93 During the first ZQ interview, ZQ stated that the relationship ended on 7 September 2022.44 She said she and the accused broke up because they were both unhappy in the relationship, as their characters did not match.45 94 In the second ZQ interview, ZQ said that she and the accused broke up at the end of September, nearly October.46 She said that she ended the relationship, over 38 T 155.4-156.35. 39 MFI P2 at lines 153-167; 182-192. 40 Exhibit P21 at [24]. 41 Ibid at [23]. 42 MFI P4 at lines 1220-1223; T 95.19-21. 43 T 94.21-36. 44 MFI P2 at line 32. 45 MFI P2 at lines 50-59. 46 MFI P4 at lines 160-164. -- 15 of 119 -- [2024] SADC 165 14 WeChat, because they were incompatible.47 The accused did not accept it at first, but after she told him multiple times, he finally agreed.48 95 At trial, ZQ gave evidence that it was her decision to end the relationship and she had told the accused ‘face to face’.49 She could not remember the exact date they had broken up.50 The Threats 96 ZQ gave evidence that after they broke up, she continued to have sexual intercourse with the accused, but that this was no longer consensual. She said, at first, that she could not recall how many times she had non-consensual sex with the accused but that it was more than once.51 97 In the first ZQ interview, ZQ said that she thought that the first time she had non-consensual sex with the accused was within a week of their break-up.52 98 When asked how this had happened, she explained that she was reluctant to do this, but if she did not, the accused had threatened to publish the videos he had made, during their relationship, of them engaging in sexual activity.53 When asked if there were consequences, in her culture, if he had sent the videos to others, she said, ‘that’s not gonna be good, that will be really bad.’54 99 In the second ZQ interview, ZQ said that the non-consensual sex started about two weeks after the break-up. When asked in cross-examination as to why this was different from what she had said in her first interview, ZQ said this was because of the large gap between the two interviews and she could not remember clearly. She said the non-consensual sex started within one to one and a half weeks after the break-up.55 Forced Sexual Activity (Uncharged Acts) 100 In the first ZQ interview, ZQ was asked if she could recall what had happened the first time she had non-consensual sex with the accused. 101 ZQ said that she could not remember everything but that it had started on WeChat. The accused had asked her to come over to his place and threatened to publish the videos if she did not come over.56 She remembered that she arrived at his place and he showed her a video.57 The accused had said words to the effect of, 47 MFI P4 at lines 1466-1491. 48 MFI P4 at lines 1493-1505. 49 T 42.12-18. 50 T 119.38-120.2. 51 MFI P2 at lines 106-113. 52 MFI P2 at line 121. 53 MFI P2 at lines 129-143. 54 MFI P4 at line 1554. 55 T 120.11-25. 56 MFI P2 at lines 217-228. 57 NB there is an error in the transcript of MFI P2 at line 238. The transcript says, ‘… I arrived at eight’. It is apparent from the recording, Exhibit P1, that the words said were, ‘I arrived at his place.’ -- 16 of 119 -- [2024] SADC 165 15 ‘I’ve got the video here and if you are disagreeing, I will publish it.’58 He then forced her to have sex.59 102 As to how the accused had forced her, ZQ explained that she had sensed this from his tone and from his aggression.60 He was agitated. He pulled her onto his bed and started undressing her.61 She told him, ‘I don’t want to have sex, don’t force me.’62 He had said something like, ‘once you get here you are not in control anymore.’63 He did not wear a condom, nor did he ejaculate inside her.64 103 ZQ explained that this had happened again over five times. She kept going back to the accused’s place for two reasons – namely his threat to publish the video(s) and because he knew where she lived and had made threats to go to her place.65 These threats had been made over WeChat and by telephone.66 104 In the second ZQ interview, ZQ said that after they broke up, the accused forced her to have sexual activity and that this had occurred more than one time, until she told the police about the alleged offending in mid to late November.67 She said the first time this had occurred was two weeks after they broke up.68 She could not remember anything about that first occasion.69 Although there was another time the accused had forced her to have sexual activity, between the first and last time, she could not remember what had happened, other than the fact that she did not want to do it.70 The Alleged Offending – 7 November 2022 105 During the first ZQ interview, ZQ gave evidence that the last time she had sexual intercourse with the accused was ‘Monday just gone’.71 On that occasion he had hurt her. She said, ‘I didn’t want to go I was forced to go … and I was forced to have sex with him’.72 106 ZQ said that she had told the accused, again, that she was not his friend and he threatened her. She described lying on her back on his bed. He stopped her from 58 MFI P2 at lines 238-243. 59 MFI P2 at line 247. 60 MFI P2 at line 251, noting these words are apparent from the recording, but marked partly as illegible in MFI P2. 61 MFI P2 at lines 253-259. 62 MFI P2 at line 268. 63 MFI P2 at line 274. 64 MFI P2 at lines 275-280. 65 MFI P2 at lines 288-299. 66 MFI P2 at lines 300-305. 67 MFI P4 at lines 205-235. 68 MFI P4 at line 1233. 69 MFI P4 at lines 1235-1244. 70 MFI P 4 at lines 1246-1277. 71 MFI P2 at line 102; see also lines 312-318. The Monday prior to the first ZQ interview was Monday 7 November 2022. 72 MFI P2 at lines 321-323. -- 17 of 119 -- [2024] SADC 165 16 making any sound by putting his hand over her mouth and nose. He started choking her.73 When asked to explain how the accused had choked her, ZQ said:74 … sometime he used both hands to choke me other time he used one hand to choke me and one hand over the other hand over my mouth. 107 Although she could not be sure, she thought he used both hands to choke her.75 She could not breathe. She tried to breathe through and to pull his arm away. At that time her nails were quite long and sharp. She said she scratched the accused’s arm and he let go.76 108 ZQ was asked if the accused had ejaculated inside her and she gave the following evidence:77 ZQ I’m not sure he he JP OK do you know if he ejaculated outside of you Interpreter (translating the question) JP So you’re just not sure if he ejaculated or not ok no worries. 109 When asked what had happened thereafter, ZQ said the accused had tried to take her phone away from her so that she could not contact anyone. They went outside to a courtyard area where there was a swimming pool. She was worried he would throw her phone in the pool. 110 She said the accused was making demands of her to take back what she had told her friends about his bad behaviour, about him threatening her and being physical. He wanted her to talk to them and say he had never done anything like that.78 She agreed to do ‘all the things’ and then he let her go home.79 She caught the bus into town at about 7:40pm and then a train home at about 8:30pm.80 111 The accused’s homestay host was home at that time.81 112 During the second ZQ interview, ZQ confirmed that the last time she and the accused had forced sexual intercourse was on the Monday, three days before she had reported the alleged offending to the police.82 73 MFI P2 at lines 326-340. 74 MFI P2 at line 344. 75 MFI P2 at line 348. 76 MFI P2 at lines 356-364. 77 MFI P2 at lines 520-523. 78 MFI P2 at lines 375-386, noting that although ZQ’s response was originally interpreted as the accused having said ‘take him back’, when this part of the evidence is carefully considered, I am satisfied that this response was misunderstood by the interpreter. 79 MFI P2 at lines 387-397. 80 MFI P2 at lines 405-416. 81 MFI P2 at line 401. 82 MFI P4 at lines 250-293. -- 18 of 119 -- [2024] SADC 165 17 113 ZQ was asked to describe, in more detail, what had happened at that time. She said that the accused had asked her to come to his house and when she got there, they argued about something and he had hit and held her, causing a bruise on her left upper arm. He had held her neck and covered her mouth with his hand so she could not breathe.83 114 When asked what had happened next, ZQ said that the accused’s homestay (host) was in the house, had heard ‘it’ and asked what was going on. She remembered it was around 6:30pm or 7:00pm and then she went home.84 115 When asked to describe what had occurred in terms of sexual activity on that occasion, ZQ explained that the accused had told her if she did not do ‘that’, he would give the video to another person. When asked what ‘that’ was, she responded ‘just regular sex’, and clarified this to mean penile vaginal intercourse.85 116 ZQ said that the accused grabbed her by the left arm to take her into his room and pushed her onto the bed. He told her that unless she did ‘the thing’ with him, that is, penile vaginal intercourse, he would show the video to her friends and someone would know her. She tried to take the phone from his hands but he took the phone back. He was angry. She saw that he had already sent the video on his social account and he deleted it after about two to three minutes.86 She gave the following evidence:87 Q Um and then he after two to three minutes he deleted the video, yep okay and what happened after he deleted the video? A Ah he said to me like he already sent to the video to his social account. Q Mm hmm. A If I don’t do the the thing with him he will send it to like more people. Q Okay, so he said if you don’t do the thing um did he tell you the, with his words what he wanted you to do? A Ah the sexual activity. 117 ZQ confirmed later in the second ZQ interview that she did not see the video. However, the accused told her it showed them engaging in sexual activity together. She knew that he had recorded them having penile vaginal intercourse, two or three times, during their relationship. She confirmed that at the time these recordings were made, she consented to that sexual activity, but did not consent to the recording of it.88 83 MFI P4 at lines 302-339. 84 MFI P4 at lines 343-377. 85 MFI P4 at lines 387-438. 86 MFI P4 at lines 462-552; lines 620-705. 87 MFI P4 at lines 554-566. 88 MFI P4 at lines 1077-1212. -- 19 of 119 -- [2024] SADC 165 18 118 ZQ told Officer Close that thereafter, she tried to scream, because she did not want to have sex with the accused. He put his hand over her mouth and held her neck. He used two hands to cover her mouth for five to ten or maybe 15 seconds. She could not breathe when he did that.89 ZQ said, ‘it was one hand or two hands to grab my neck’. His hands were on her neck for about five to ten seconds and she could not breathe. She tried to push him and grab his hand to get it off her neck but he was too strong. The accused stopped holding her neck when he saw that she could not breathe.90 119 ZQ said the sexual intercourse lasted for about half an hour. She was crying and trying to stop him by screaming and pushing his shoulder.91 She said it was uncomfortable and scary. It stopped because she was screaming so much.92 The following exchange occurred:93 Q Okay. Do you know what ejaculation means? No? Um. (inaudible) Q Yep. P Just show it… or. Q Do you know what that means? A Mm. Q Did- did that happen or not? A No. 120 She said the accused did not use a condom.94 121 The following exchange occurred:95 Q Okay. Um okay so um you were screaming so much that it stops. Okay and then he put his hands over your mouth to stop you screaming. Okay, I understand what you’re saying. Okay, um okay so you said the homestay person asked what was going on. Yep. Where, um where was the homestay person? A Out his door. 89 MFI P4 at lines 712- 793. 90 MFI P4 at lines 799-855. 91 MFI P4 at lines 908-963. 92 MFI P4 at lines 899-983; noting that prior to this exchange, ZQ said that the sex had occurred before she was held by the neck and mouth; line 881. After carefully reviewing this portion of the interview, I consider this is the result of a misunderstanding and what she was trying to say was that the sex had already started when accused was holding her neck and mouth. He did so because she was screaming. See in particular line 917 when ZQ responded, ‘that’s all’ when asked to describe what had occurred during sex (being after she had described having her mouth covered and neck held). 93 MFI P4 at lines 985-999. 94 MFI P4 at lines 1001-1011. 95 MFI P4 at lines 1013-1053. -- 20 of 119 -- [2024] SADC 165 19 Q Okay, outside his door? A Mm. Q Um. A So outside the room. Q Outside the room. Um did the person um see what was happening? A No. Q Okay. Um and was the door open or closed? A Closed. Q Okay. Um so the homestay asked what was going on through the closed door. A Mm. Q And what happened then? So the homestay said what’s going on and then what happened next? A He said nothing happened, just arguing. Q Okay, yep, he said nothing happened just arguing. Yeah? And then what happened? A And after that he, he half an hour. Q Mm hmm. A That I went back home. 122 In cross-examination, ZQ was asked if the homestay host had come to the door during the half hour when the accused was having sex with her and she was screaming. She said, ‘I think so’.96 She said he had enquired whether she was okay but she had not said anything.97 123 In cross-examination, it was suggested to ZQ that the reason she went to see the accused on 7 November was because she still had feelings for him and wanted to talk about their relationship. ZQ disagreed. She said:98 I had no feelings for him. I wanted to end that relationship – relationship entirely – so that he could leave me alone, not harass me anymore. 124 It was put to ZQ that once she arrived at the accused’s house that afternoon, he had cooked them dinner and they had then eaten that in his room. ZQ’s response, in each instance, was ‘maybe’. She could not remember if they had done any homework together. She agreed that they had argued and that the argument had 96 T 182.24. 97 T 182.25-29. 98 T 176.15-19. -- 21 of 119 -- [2024] SADC 165 20 continued outside in the pool area because they were too loud inside. She disagreed that the argument was because she was chasing another boy.99 She gave the following evidence:100 Q. Did he say that he told you he was going to contact the other boy to let him know that you were still in a relationship with him. A. Maybe he tried to contact the other boy, but we were not in a relationship. We ended our relationship long time ago. Q. And you also I suggest argued about the link you had sent to him of the Chinese girl the day before. A. Yes. 125 ZQ agreed that during the argument, the accused had taken her glasses from her head and thrown them in the pool.101 She agreed that she had screamed and that in response, the homestay host came outside and helped to get her glasses out of the pool. She went into the accused’s room to get her bag and then left.102 126 It was suggested to ZQ in cross-examination that the accused had left with her, that he caught the bus into town with her, they went to McDonalds together and that he walked her to the train station. She said she did not remember this and did not think the accused was with her in town, as she left his house by herself.103 Other Physical Violence 127 When ZQ was asked during the first ZQ interview to explain how the accused had filmed her during sex, she said it occurred during consensual sex. When asked if she would continue to have sex with the accused when he was filming, the interpreter translated ZQ’s response as follows:104 LIU Um when he was err when he was recording me I wanted to scream PERRY Mmhh ok and did you scream LIU (Interpreting the question) QU (Answering) LIU Um err yes I did and he used his hand to stop he places his hand on my mouth to stop me from making noise PERRY And when was that and when did that happen 99 T 177.5-178.14. 100 T 178.15-23, see discussion at [208] herein with respect to the ‘link’. 101 T 183.23-33. 102 T 183.34-184.18. 103 T 184.18-37. 104 MFI P2 at lines 196 -212. -- 22 of 119 -- [2024] SADC 165 21 LIU (Interpreting the question) QU (Answering) LIU Um it happened between mid of err October to end of October PERRY Mid of October to end of October. Ok and so him putting his hand over your mouth um that type of behaviour, did that happen just one (1) time or more than one (1) time LIU (Interpreting the question) QU (Answering) LIU Um err two (2) two (2) to three (3) times PERRY Two (2) to three (3) times and when did those other times happen LIU (Interpreting the question) QU (Answering) LIU It happened between mid October to early november 128 When asked if she had ever received any injuries from the accused, ZQ explained that in late to mid-October, the accused had grabbed her phone from her and would not give it back. When she tried to get it back from him, he used his phone to try to smash her hand away, causing her hand to become quite bruised and swollen.105 129 ZQ said that she had not sought medical attention at that time or at any time when the accused had strangled her.106 Social Media/Audio and Video Files - August to October 2022 130 ZQ and the accused exchanged numerous messages in Mandarin on WeChat and other social media platforms. None of the WeChat messages were in evidence. 131 ZQ had several Instagram accounts.107 She primarily communicated with the accused on an Instagram account under the name of ‘sXXX’.108 Occasionally, she communicated with him via other Instagram accounts under the names ‘linXXX’ and ‘zihXXX’.109 The messages in evidence were translated, but in certain respects, the translation was identified as containing inaccuracies. 132 The messages were relevant to demonstrate the nature of the relationship between ZQ and the accused (including when they broke up) and to corroborate 105 MFI P2 at lines 459-480. 106 MFI P2 at line 481. 107 The account names have been changed to maintain confidentiality. 108 Exhibits P5, P6, D8, D10, D12, D13 and D17. 109 Exhibit D9. -- 23 of 119 -- [2024] SADC 165 22 ZQ’s evidence about the accused threatening to publish the video(s) if she did not continue to have sex with him. 133 The messages show the relationship was volatile and unhealthy, marked by mutual jealousy and immature behaviour. The couple argued from as early as mid- August 2022. 134 ZQ acknowledged she tried to catch the accused talking to other girls by pretending to be someone else online. She tried to make the accused jealous when she believed he was seeing other girls. He fuelled her jealousy by taunting her about other girls. 135 Importantly, the messages demonstrate that from early in the relationship, the accused treated ZQ with disrespect, he bullied and taunted her and was most persistent in requests made of her. To put it another way, the accused would not take no for an answer. 136 ZQ was examined and cross-examined at length about the messages. Some of the questioning was to elicit from ZQ her understanding of messages sent by the accused and/or to explain what she had meant when she sent various messages to him. In addition, various propositions were put to ZQ as to the status of the relationship at various dates, by reference to the messages and to various video and audio files. 137 ZQ agreed that in early August 2022 she was upset with the accused after he told her that he had gone to an activity with a Vietnamese girl who attended her school and that he was intimate with that girl. She argued with the accused about this. 138 On 4 August 2022, ZQ sent the accused a message on her ‘linXXX’ account stating, ‘Why are you online!’.110 She disagreed with a proposition that she had sent this message as she was upset the accused was chatting to other girls on Instagram.111 139 ZQ agreed that she had posted on Instagram, an intimate photograph she had taken of the accused lying on his bed with his shirt off. She subsequently posted that the accused’s roommate had taken that photograph. ZQ and the accused argued, online, about this.112 It was suggested to ZQ that the accused was angry with her for posting the image. She denied this and said the accused had wanted her to post the image. Rather, he was angry with her for posting that it was his roommate and not her, who had taken that photograph.113 140 ZQ disagreed with a proposition put to her in cross-examination that the accused had told her he did not want people to know that they were sleeping 110 Exhibit D9 at p 3. 111 T 105.24-107.27. 112 Exhibit D8. 113 T 109.16-112.15. -- 24 of 119 -- [2024] SADC 165 23 together. She maintained that he had told her to post the image.114 She disagreed that the accused did not want his ex-girlfriend to see the photo or for their common friends to think they were in an intimate relationship. She maintained that the friends that they had in common, knew their relationship.115 141 During this series of messages, sent on 18 August 2022, ZQ told the accused that she was very apologetic. The accused described her as being ‘so fake’ and ‘shady’. At one stage during the argument, he sent her a message ‘Goodbye’ including an emoji of a hand waving goodbye. Later, after numerous apologies from ZQ wherein she stated, ‘I was really wrong, I knew it was wrong, I don’t mess around anymore’, he replied, ‘Delete your screenshot. I fucking let you take a screenshot.’ ZQ then confirmed it was deleted.116 142 It is impossible to determine, simply from reading the messages, whether the accused was angry with ZQ for posting the original photograph or for her subsequently posting that his roommate had taken it. However, midway through the exchange, the accused told ZQ she was being hypocritical and when she sought an explanation, he said, ‘Thanks for the photo his roommate sent…Never mind’. This lends some support for ZQ’s explanation as to the cause of the argument. 143 What is clear from this exchange of messages is that as early as mid-August 2022, the accused was the dominant person in the relationship. His message, ‘Goodbye’, read in context, was clearly intended as a threat to end the relationship because of what she had done. Irrespective of what precipitated the argument, ZQ’s responses to the accused were overly apologetic, with her almost begging for his forgiveness. On a separate Instagram account, that same day, ZQ sent the accused messages saying, ‘I don’t want to break up…I really don’t want to break up.’117 144 During cross-examination, ZQ agreed that during August 2022, she and the accused would sometimes behave jealously towards each other. However, she disagreed that she would talk to him about other boys she liked to make him jealous.118 145 On 22 and 23 August 2022, ZQ and the accused exchanged messages, which started with ZQ stating, ‘Don’t cry… I heard you crying’. She stated, ‘Didn’t tell you about the guy I saw…That’s the guy I liked before’.119 ZQ said she sent this message to the accused as he was having intimate relationships with the Vietnamese girl and his ex-girlfriend. They were arguing over this. It was suggested to ZQ that she had sent this message to taunt the accused and to make him jealous. She said it was possible she sent it to make the accused jealous but that she was not seeing anyone else while she was in love with the accused. When 114 T 112.31-35. 115 T 112.1-10. 116 Exhibit D8, various pages. 117 Exhibit D9 at p 4. 118 T 113.29-114.5. 119 Exhibit D10. -- 25 of 119 -- [2024] SADC 165 24 asked again if she had sent this to make the accused jealous, ZQ said, ‘It could be, but I don’t remember’.120 146 On 5 September 2022, ZQ used her third Instagram account, ‘zihXXX’, to message the accused, pretending to be someone else. She started by saying ‘Hello’ and when he replied, she wrote, ‘I’m just scrolling on Instagram…And a cute guy says hi…just curious…do you have a girlfriend’.121 The accused responded by texting ZQ’s name and shortly thereafter stated that he knew it was ZQ who was messaging him. They then argued about her being fake. He told her, ‘Don’t do that with me…You can’t play with me’.122 They discussed how he worked out it was her and he said that one reason was because, ‘…we fight these days’.123 147 ZQ agreed that she had done this as she was jealous of the accused talking to other girls and she believed he was talking to other girls.124 148 In cross-examination, ZQ agreed that although she and the accused argued on 5 September, they did not break up that day and that the next day, 6 September, they had gone to the Royal Show together.125 149 ZQ agreed that sometime on or before 7 September 2022, she had sent the accused a photograph of herself cutting her wrists. She denied she had cut herself because she was very homesick in Australia. She said she had done this as she was very upset and depressed because the accused was arguing with her.126 150 ZQ agreed that after this, the accused had sent her a message, ‘Don’t be…I’m scared…This is what scares me the most’ to which she replied, ‘Afraid of what…Afraid that one day I will disappear and not reply to your messages…Will you find me when I’m gone’. She denied that she had sent these messages as a threat to hurt herself. ZQ maintained that she sent these messages because the accused was annoying her and making her very upset.127 When it was pointed out that the accused had replied, ‘…Do what makes you happy…Other than self harm’, ZQ acknowledged that her comments were about self-harm.128 151 ZQ was shown a series of messages between the accused and her friend, C. She was then asked if she had found out that the accused had sent her friend, C, her messages about self-harm. She said, ‘No, this is my first time to see these messages’.129 120 T 114.24-115.1. 121 Exhibit D9 at pp 5-6. 122 Exhibit D9 at p 7. 123 Exhibit D9 at p 11. 124 T 118.3-12. 125 T 119.8-19. 126 T 120.38-121.26. 127 T 122.4-34. 128 T 123.1-124.7. 129 T 124.12-15, noting the messages between the accused and C were included in a bundle shown to ZQ, and marked as MFI D11, but that document was not tendered. -- 26 of 119 -- [2024] SADC 165 25 152 ZQ was then shown a series of messages she had sent to the accused on 12 September 2022: 130 ZQ What the fuck What did you say to C Accused What did I say? I didn’t fucking say anything I haven’t even talked to her ZQ You told her to check my wrist for knife wounds What do you want? You have to make it so everyone knows I’m depressed What are you doing? Accused ? sb I was afraid something would happen to you For your own good 153 ZQ then agreed with a proposition put to her that she had been angry with the accused for sharing this information with C.131 154 On 8 September 2022, ZQ used the Instagram account, ‘ZihXXX’ to send the accused the following messages:132 Nothing more to say about the two of us. WeChat is blocked I got sick again just now. 130 Exhibit D12 at pp 1-2. 131 T 125.17-18. 132 Exhibit D9 at p 14. -- 27 of 119 -- [2024] SADC 165 26 155 The accused replied; ‘?...What’s up’.133 156 ZQ was asked if her message, ‘I got sick again just now’, was a reference to her hurting herself again. She said she did not clearly remember but that she was depressed at that time.134 157 ZQ disagreed with a proposition that although she and the accused were arguing and occasionally blocking each other on social media, they had not broken up officially before 12 September 2022.135 She agreed that on 13 September 2022, she took some photos of the accused at a park near his house in Newton136 and that on 14 September 2022, she took a video of the accused at his house.137 158 ZQ also agreed that on 14 September 2022, she sent the accused a contact card containing the contact details for his ex-girlfriend. She could not remember why she did this but denied it was to taunt him with her jealousy. ZQ said she was curious to ask him if the girl was his ex-girlfriend, as she had been told by someone that she was. She denied that at that stage she still cared about having a relationship with the accused and that she was still in a relationship with him.138 159 On 15 September 2022, ZQ changed the subject of the chat to ‘love’. She said she had done this with her other friends as well, as it was a ‘good looking’ subject.139 160 On Friday 16 September 2022, the accused sent ZQ messages expressing his anger as she had blocked him on WeChat. ZQ gave evidence that she had blocked the accused on WeChat and they were fighting at this time.140 She said she was no longer in a relationship with the accused.141 In response to a proposition put to her in cross-examination, she said that on the day before this, she may have gone to Rundle Mall with another boy who was a good friend of hers.142 161 On 16 September 2022, and in the weeks that followed, ZQ and the accused exchanged numerous messages on Instagram.143 The prosecution relied on these messages to prove that the accused was threatening ZQ in the manner she alleged. They also relied on the messages to demonstrate the control that the accused had over ZQ during this period, which, on the prosecution case, was after the relationship had ended. The defence case was that these messages demonstrated 133 Ibid. 134 T 126.5-12. 135 T 126.20-35. 136 T 127.9-13; Exhibit D22, file 1863; Exhibit P21 at [26.6]. 137 T 127.17-20; Exhibit D22, file marked ‘14 September’; Exhibit P21 at [26.7]. 138 T 128.26-130.27; Exhibit D13. 139 T 131.13-132.5. 140 T 132.6-14; Exhibit D13 at p 2. 141 T 38.4-6. 142 T 133.1-6. 143 Exhibit P5 at pp 1-11. -- 28 of 119 -- [2024] SADC 165 27 the relationship remained on foot and that ZQ still cared for the accused, throughout September and October. 162 In cross-examination, ZQ agreed that at this time, she and the accused were accusing each other of seeing other people and that they had argued about this.144 163 During a lengthy exchange on 16 September 2022, the accused told ZQ, ‘Unfriend me?...Ok…I’ve said it many times…Can’t blacklist or unfriend me’, to which ZQ replied, ‘You have to know when to draw the line’.145 164 ZQ messaged the accused that she was a WeChat contact of his mum. She gave evidence that this was a warning to the accused that she was able to tell his mum about his abusive messages. She hoped that the accused’s mum would tell him not to continue to threaten her.146 165 The accused messaged back that he was also a WeChat friend with her mother. A proposition was put to ZQ in cross-examination that these messages should be understood to mean that the accused was threatening to tell her mother that she was talking to another boy. 147 ZQ initially disagreed with this. It was clear that ZQ was having difficulty understanding the line of questioning ZQ. Later she said:148 The issue was not whether I was seeing another boy or not, the issue was that he was trying to threaten to tell my mum I was seeing another boy but what he wanted to say to my mum I have no idea. 166 The accused sent a further message thereafter, ‘Then let’s see who’s more powerful…Even my mum won’t argue with me’.149 ZQ replied, ‘I mean it’. The accused responded:150 You reckon it helpful? I’ve already have one person sent off You did it first Unfriended me and blacklisted me for no reason (my emphasis) 144 T 136.3-6. 145 Exhibit P5 at p 2. 146 T 39.23-24, noting there is an error in the transcript, where the word ‘frighten’ appears instead of ‘threaten’; T 39.29-32. 147 T 137.32-138.7. 148 T 138.12-15. 149 Exhibit P5 at p 3. 150 Ibid. -- 29 of 119 -- [2024] SADC 165 28 167 ZQ gave evidence that when the accused said, ‘I’ve already have one person sent off’, this was a reference to him having already sent the video to one person.151 168 ZQ replied to these messages, ‘Well done’. The following exchange then occurred between 8:57pm and 9:44pm on 16 September:152 Accused You listen to me as I said I won’t do anything Provided that you behave yourself But you didn’t Posting one now I’ll keep posting if you do anything further in the future ZQ How could I possibly behave myself? Accused You’ve made all these happen ZQ You left me no choice again and again Really? Accused What you did yesterday I haven’t yet forgiven you I didn’t do that ZQ Why you get cross for no good reason. ? Accused You should consider yourself lucky 151 T 39.36-40.8. 152 Exhibit P5 at pp 4-8. -- 30 of 119 -- [2024] SADC 165 29 Say no more I’ve posted one ZQ Good job Accused I’ve told you long ago You can’t do things like blacklisting or unfriending But look what you have done? ZQ Who do you think you are? Who do you think you are to make such request? Are you mad? Accused You mad? You don’t know who is mad? What’s going on in your head? Acted like that yesterday when you knew you were wrong. ZQ What do you want? Accused Then changed again in the morning Blacklisted me in the afternoon Are you mental? ZQ Obsessed with the idea of fighting, aren’t you? Accused Fighting with whom? I’m F**king telling you once again, don’t ever f**king try messing around -- 31 of 119 -- [2024] SADC 165 30 Otherwise don’t blame me for being rude. ZQ So what Didn’t you just say Get someone to beat him Accused I’m annoyed to death by you What are you up to? What did I do? Up to what? You forgot? You don’t realize your mistakes again? ZQ You crack me up You believe you’re justified, right? Stop pretending to be nice. (my emphasis) 169 ZQ gave evidence-in-chief that these messages referred to the accused telling her that if she continued to go to his place and have sex with him, he would not send the video to anyone. The reference to him ‘posting’ referred to him sending the video to someone via text message. She said these messages meant that if she did not continue to do what the accused wanted, he would continue to send the video to other people. Where he said he had ‘posted one’, that meant he had already sent the video to someone.153 170 ZQ disagreed with a proposition put to her in cross-examination, that these messages had to do with her seeing another boy and specifically a boy with whom she had gone to Rundle Mall. She further disagreed with a proposition that the ‘post’ to which the accused was referring was the photos she had sent to him that showed her self-harming. She disagreed with a proposition that the reason the accused was making these threats was because he was upset that she had been seeing another boy. 154 171 Sometime later in cross-examination, counsel for the accused told ZQ that she needed to correct something that had been put to ZQ earlier. It had been put to 153 T 40.23-41.13. 154 T 138.38-139.11. -- 32 of 119 -- [2024] SADC 165 31 ZQ that the accused’s threat to post something online related to photos of her self-harming. This was said by counsel to have been an error on her part. Instead, it was suggested to ZQ that the threat the accused had made, in these messages, was to post the photograph of ZQ with the other boy in Rundle Mall. ZQ disagreed with this.155 172 Later, in cross-examination, ZQ gave the following evidence about this series of messages:156 Q. 'You've made all these things happen' and you responded 'You left me no choice again and again really' and on the next page he said 'What you did yesterday I haven't forgiven you', you see that. A. Yes. Q. And you replied 'Why you get cross for no good reason'. A. Yes. Q. And I suggest to you that 'what you did yesterday' was what I put to you a moment ago, that you had gone to Rundle Mall with a male friend. A. Yeah, I did go to Rundle Mall with male friend, however, I have no recollection as why he became upset. MRS POWELL: Would you mind repeating that. A. I have no recollection why he became upset, probably because I have a blacklisted him. MRS POWELL: I'm afraid I didn't understand that either. HER HONOUR: 'I had no recollection as to why he became upset', is that what you said? INTERPRETER: Yes. XXN Q. So are you now saying you don't know why he was so upset in this argument on 16 September. A. Probably he was upset because I blacklisted him. Q. Angry because you blacklisted him. A. Yes. 155 T 150.6-25, noting there is an error in the transcript at line 25. ZQ clearly said ‘Disagree’ not ‘It’s agreed’. 156 T 140.17-141.4. -- 33 of 119 -- [2024] SADC 165 32 173 ZQ was asked if when she said, ‘get someone to beat him’, this was a reference to a comment the accused had made, to beat up the boy with whom she had been with in Rundle Mall the day before. ZQ said that she did not recall.157 174 Although ZQ and the accused continued to message each other that same night, 16 September, the accused did not respond to the last message which had been sent by ZQ at 9:44pm. At 10:24pm, ZQ messaged the accused, ‘Why not reply? ...Feeling guilty, aren’t you?’. The accused did not reply. Between 10:35pm and 11:16pm, ZQ messaged the accused numerous times, endeavouring to continue the discussion. The accused did not reply until 11:17pm, at which time he said, ‘Haven’t you noticed I don’t reply to your blubbering anymore?’.158 175 ZQ asked the accused to think about whether he had hurt her and asked him if he was still meeting with his friend, A, for a drink.159 In evidence, ZQ explained that she knew this meeting was planned because she had spoken about it with the accused, face to face, earlier, before they broke up.160 176 The following messages were then exchanged:161 Accused What on earth have I done? ZQ You think What did you do Accused What did I do ZQ In the afternoon you Threatened me Accused Shouldn’t I? You didn’t come today. 157 T 143.3-14. 158 Exhibit P5 at pp 8-9. 159 Ibid at p. 9. It was agreed the message ‘Got hit by lightning?’ was incorrectly transcribed and in fact said, ‘Are you meeting A?”. It was also agreed the message ‘Do you guys fancy a drink?’ was incorrectly transcribed and in fact said, ‘Are you having a drink with A?’, T 43.8-11. 160 T 42.30-43.7. 161 Exhibit P5 at pp 10-11. -- 34 of 119 -- [2024] SADC 165 33 The thing you did on Thursday ZQ You Are Threatening me Just this one Accused Your deception Your betrayal (my emphasis) 177 ZQ gave evidence that when she wrote, ‘In the afternoon…you threatened me’, she was referring to his earlier message, sent that afternoon, wherein he threatened to send the video to someone else.162 178 In cross-examination, it was suggested to ZQ that when the accused wrote, ‘The thing you did on Thursday’ he was referring to her having met the boy in Rundle Mall that day. ZQ said she did not know.163 179 ZQ said she remained in contact with the accused thereafter on Instagram and WeChat because he was threatening to post the video (or videos).164 180 In cross-examination, ZQ was shown a recording taken of the accused near the Adelaide Casino on 22 September 2022. It was suggested to her that she was with him at that time and that she took that video. ZQ said she could not recall being with the accused on that day near the Casino, nor could she remember taking that video.165 There was no evidence to the contrary. 181 ZQ was asked if she visited the accused at an internet café on 23 September 2022. In response she said, ‘I often go to the internet café to play games’. She later clarified that she did see him at the internet café on that day. She said that she had brought herself flowers that day. She was asked if she had given the accused the flowers depicted in a photograph on a keyboard at the café taken that day. She said, ‘I don’t think so’.166 162 T 43.12-20. 163 T 146.4-8. 164 T 146.9-30. 165 T 151.13-152.16. 166 T 152.17-153.9. -- 35 of 119 -- [2024] SADC 165 34 182 ZQ denied seeing the accused at the internet café on 28 September.167 There was no evidence to the contrary. 183 On 28 September 2022, ZQ and the accused exchanged the following messages between 12:55am and 12:56am: 168 Accused WTF You better turn it on now No mutual following, right? ZQ ??? Accused Am I too nice to you? ZQ Mutual followed now Accused OK Go to sleep then If it’s me, I prefer PLP Just give it to me ZQ OK 184 ZQ gave evidence that she had both unfollowed and blocked the accused on Instagram, but she ‘refollowed’ him, after he asked her to do so.169 185 In cross-examination, she said that when the accused messaged her saying, ‘If it’s me I prefer PLP…Just give it to me’, this was an offer to help her with the subject, PLP.170 The following exchange occurred: 171 167 T 153.11-12. 168 Exhibit P5 at pp 12-13. 169 T 43.28-44.21. 170 T 153.25-36. 171 T 153.37-154.10. -- 36 of 119 -- [2024] SADC 165 35 Q. Do you agree that as at 28 September that you had made up from your earlier fight on 16 September. INTERPRETER: Sorry, Mrs Powell, do you say 'make up'? MRS POWELL: Yes, I'll perhaps use a different expression. XXN Q. The relationship had been repaired since the earlier argument on 16 September. A. I can't remember. I can't remember clearly. Q. I suggest that at that time, 28 September, that the relationship was back on foot. A. Yes. 186 There were no further messages exchanged between ZQ and the accused on the Instagram account ‘sXXX’ until 2 October. On 2 October 2022, the accused tried unsuccessfully to call ZQ at around 10:00pm. Thereafter, the following messages are reproduced on Exhibit P5:172 Accused Not answering OK 6 You go on ZQ Shit Collected Accused I’ll make you famous in XXX High ZQ ? Accused You’ll see 172 Exhibit P5 at pp 13-14. -- 37 of 119 -- [2024] SADC 165 36 187 ZQ gave evidence that she understood these messages to mean that the accused would send the video to her friends and other students at her school.173 188 In cross-examination, ZQ agreed that on that day, she had argued with the accused about a white boy and a Chinese boy. She disagreed that the threat the accused made, to make her famous, was about him threatening to post photographs of her with other boys.174 189 She was shown photographs of screenshots taken from the accused’s phone (and an accompanying translation) said to represent the same series of messages as those in Exhibit P5, albeit with a different translation. Immediately prior to the accused’s message, translated in this document as, ‘I made you famous at XXX High’,175 were four messages sent by ZQ translated as, ‘Shit…Took…Fuck…I follow a few from our school’.176 190 ZQ disagreed that those four messages were sent to make the accused jealous that she was following other boys at school on social media.177 191 ZQ was shown an image, in those same screenshots, of the accused with red hair, dated 9 October 2022. ZQ was asked if during the first week of October she had gone to the accused’s house and dyed his hair red. She said, ‘Maybe’.178 She agreed that she had gone to Ikea with the accused on 6 October 2022 and that on 11 October 2022, the accused came to see her play badminton with her friends.179 192 On 12 October 2022, ZQ sent the accused messages, ‘You f**king chatting with Bonnie, right? … You f**k don’t reply, right’.180 The accused did not reply. When asked during evidence-in-chief what she meant by these messages, ZQ could not remember.181 In cross-examination, she agreed that at this time she was not happy with the accused as she thought he was talking to other girls on Instagram.182 193 ZQ agreed in cross-examination that she met the accused for Hotpot in Hindley Street on 13 October 2022.183 The next day, when the accused sent her a message, ‘Then I go for that Vietnamese then’, she thought he was trying to make her jealous because he was talking to another girl.184 194 On 15 October 2022, ZQ and the accused exchanged numerous messages during which the accused was insistent that ZQ come to visit him at his house. 173 T 46.7-16. 174 T 158.13-27. 175 MFI D14. 176 MFI D14, noting those four messages were translated in Exhibit P5 as only two messages, namely ‘Shit…Collected’. 177 T 160.2-161.10. 178 T 168.2-4. 179 T 168.5-23. 180 Exhibit P5 at p 15. 181 T 46.22. 182 T 169.1-13. 183 T 170.2-12. 184 T 169.24-170.1. -- 38 of 119 -- [2024] SADC 165 37 ZQ told the accused several times that she was too busy to see him as she needed to study for exams. She suggested that he ask other girls. He replied, ‘Don’t want to come?...Didn’t you have fun?’. She replied, ‘Don’t feel like going’. He replied, ‘Say that again’.185 195 ZQ gave evidence that these messages related to the accused wanting her to go to his house to have sex with him, notwithstanding he did not mention ‘sex’.186 196 ZQ told the accused she could not see him on Monday but would see him on Wednesday. The accused said, ‘I gave you the opportunity…And you talk to me like that’. He told her to come to see him on both Monday and Wednesday. She reiterated that she could not come on Monday because she had an exam to revise for. The following exchange occurred:187 Accused You try I said already If you don’t come You’ll be sorry188 ZQ I really can’t go Are you my boyfriend? Accused Then don’t come I’m not your boyfriend ZQ It’s not I don’t want to go I can promise to come on Wednesday (my emphasis) 197 ZQ gave evidence that she understood, from these messages, that the accused was threatening her.189 She had sent him the message, ‘Are you my boyfriend’, as 185 Exhibit P5 at pp 18-20. 186 T 47.5-16. 187 Exhibit P5 at pp 23-24. 188 ZQ gave evidence that the correct translation of this and the previous message was – ‘if you try not to come then you will be sorry’; T 47.27-48.36. 189 T 47.17-23. -- 39 of 119 -- [2024] SADC 165 38 they had already broken up.190 She sent the message, ‘It’s not I don’t want to go’ because she wanted to see him in person to explain their relationship was finished and that she did not want him to threaten her in the future.191 198 Shortly thereafter, the accused messaged ZQ, telling her to come to his place on Wednesday and Thursday. ZQ said that she could not come on Thursday as she was playing ball, after finishing her revision, but she promised to come on the Wednesday. The accused then told her to come on Monday, Wednesday and Thursday. He said, ‘Come to exercise at my place.’ ZQ explained that what he meant by that was, come to my house to revise for your maths test.192 199 ZQ told the accused she did not want to argue and that she would see him on Wednesday. He replied, ‘1. 3. 4….If one day short, you’ll see’.193 200 ZQ understood this to mean that if she did not go to see him on those days, he would send the video to people.194 201 ZQ sent a message saying that she could only see the accused on Wednesday. He replied, ‘Say that again?...1.2.3.4…Come all these days.’ She implored him to stop it. He admonished her for playing ball when she was meant to be revising. The following exchange occurred:195 Accused I gave you opportunity ZQ Forgive me, all right? I feel awful Accused Must come on Monday …. 202 The accused told ZQ to choose two days and said, ‘Opportunity is given to you’.196 203 All of the above messages as outlined at paragraphs 194 – 202 were exchanged on 15 October 2022. In cross-examination, ZQ agreed with a proposition that on 16 October 2022, the accused sent her a video of a girl on a 190 T 48.37-49.3. 191 T 49.7-31; the word ‘stress’ at line 25 is an error – the word used was ‘threaten’. 192 T 49.32-37. 193 Exhibit P5 at pp 24-28. 194 T 50.6-17. 195 Exhibit P5 at p 31. 196 Ibid at p 32. -- 40 of 119 -- [2024] SADC 165 39 train that he said he had seen on another boy’s (Jae’s) Instagram account. He had done this to let her know that Jae liked other girls. She disagreed that they then had a fight about this.197 204 On 20 October 2022, the accused tried to call ZQ but she did not answer. He sent her the following messages:198 Online but refuse to answer, right? Well then You just wait Fool me Well done you You’re done F**king fool me 205 Thereafter there are no other messages, in evidence, sent between ZQ and the accused, until after the date of the alleged offending.199 206 ZQ gave evidence that the accused had asked her to celebrate his 18th birthday with him but that she declined. It was suggested to her in cross- examination that she declined because of the fight they had on 20 October. She said:200 No, because we broke up a long time ago, why would I go, I didn’t want to go. 207 In cross-examination, ZQ was shown a video depicting the accused near the Adelaide Casino on 31 October 2022.201 It was suggested to ZQ that she had taken that video. She said she had no recollection of taking that video or of going into town with the accused on that day.202 There was no evidence to the contrary. 208 ZQ was also shown a screenshot depicting a link to the profile of an attractive young woman.203 It was suggested she had sent this to the accused on 6 November 2022 at 10:05pm. ZQ’s response was, ‘Maybe’.204 She was then shown another screenshot of the accused with an expressionless face.205 It was suggested to ZQ that the accused had sent her that photo in response to her sending the earlier link 197 T 170.34-172.25. 198 Exhibit P5 at pp 34-35. 199 Exhibit P6. 200 T 173.16-17. 201 Exhibit D22, video file 31/10; Exhibit P21 at [26.14]. There is no evidence that ZQ took that video or that she was with the accused on that day. 202 T 173.20-37. 203 Included in Exhibit D22, file marked 6/11. 204 T 174.3-14. 205 Included in Exhibit D22, further file marked 6/11. -- 41 of 119 -- [2024] SADC 165 40 and in response to her also having sent him a photo of her cutting herself with a pink knife. ZQ denied this and said the expressionless face photo was meaningless.206 209 ZQ denied a proposition put to her in cross-examination that she then arranged to see the accused the next day to continue to talk about their relationship.207 Complaint 210 ZQ gave evidence that the first person she told about the alleged offending was her Chinese teacher, Ms Zhou. They had spoken in Mandarin after her Chinese class on Thursday 10 November 2022.208 She said:209 A I told Ms Zhou that [the accused] is forcing me to go to his house and have sex with him and if I – if I didn’t do that he will send the video to, like, my friends and yeah. Q Did you tell her anything else about the video A No. 211 ZQ clarified that this was a summary of what she had told Ms Zhou, not the exact words she had used. 212 When asked what words she remembered saying, she said that she had said ‘he tried to threaten me and to force me’.210 She did not then go on to say if she had told Ms Zhou what he had threatened and/or forced her to do. She could not remember anything more about what she told Ms Zhou. 213 ZQ gave evidence that Ms Zhou had asked her to report the matter to the police and she had done that, later that same day.211 214 She said she did not show Ms Zhou any alleged injuries she had sustained.212 Report to Police 215 ZQ agreed with a proposition that she attended a police station to report the alleged offending at about 3:00pm on Thursday 10 November 2022 and spoke to Officer Glasson.213 There was no evidence as to whether ZQ was assisted by an 206 T 175.5-28, noting there was no photograph of ZQ cutting herself with a pink knife in Exhibit D22 nor in evidence, nor was ZQ shown any such photograph. 207 T 175.33-176.2. 208 T 31.9-24. 209 T 30.21-26; noting the transcript contains an error and records the word ‘stressing’ instead of ‘forcing’. 210 T 30.27-31.5; noting there is an error in the transcript which records the word ‘frighten’ – the word ZQ used was ‘threaten’, not ‘frighten’. 211 T 31.34-32.2. 212 T 201.15-17. 213 T 195.20-24. -- 42 of 119 -- [2024] SADC 165 41 interpreter when she spoke to Officer Glasson at that time. She gave the following evidence in cross-examination:214 Q. When you first went to the police on 10 November at Hindley Street you had two visits on that same day. A. I can't remember clearly. Q. I suggest to you then the first visit to the police at 3 o'clock in the afternoon you didn't tell police that you had - that [the accused] made you have sex with him on the previous Monday. A. Maybe, but I don't remember. Q. And I suggest that what you referred to in your first time you went to the police was having a bruise on your right arm from Monday when you had an argument. A. Correct. Q. And when you returned to the police station later that afternoon you said that you had been pressured into having sex Monday week ago. A. It is the same Monday of the week, not the previous - not the Monday of the previous week. 216 ZQ said she did not show the police any alleged injuries that she had sustained.215 Contact with Accused between Alleged Offending and Report to Police 217 During the first ZQ interview, ZQ said that she had last had contact with the accused via WeChat on Thursday morning.216 When asked what had happened, she said:217 … it was Wednesday and he rang I have friends … we must have talked about him and somehow he found out … he contacted me on Thursday morning and he was angry … and he said he would come. 218 He had not come to her place. She told Officer Perry that she had not seen the accused in person since the previous Monday, that is, Monday 7 November 2022.218 219 ZQ’s evidence that she did not see the accused between the date of the alleged offending (7 November) and when she made the police report (10 November around 3:00pm), was challenged in cross-examination. It was the defence case that ZQ did see the accused in that period and, specifically on Wednesday 9 November 2022, at which time she allegedly inflicted knife wounds to his body when he tried 214 T 197.1-17. 215 T 201.9-11. 216 MFI P2 at line 424. This is Thursday 10 November 2022. 217 MFI P2 at lines 428-430. 218 MFI P2 at lines 431-444. -- 43 of 119 -- [2024] SADC 165 42 to stop her from self-harming in front of him. This was fundamental to the defence case that ZQ was lying about the alleged offending and had a motive to lie, namely that she was scared the accused would report her to the police for cutting him. 220 It was suggested to ZQ that on Wednesday 9 November 2022, she caught the bus to the accused’s house after school and arrived at around 4:20pm. ZQ denied this and was adamant that she did not go to the accused’s house on that day.219 221 It was suggested to ZQ that the accused made her a chicken stir fry dinner, which they then ate in his room. They did some homework together. The accused then showed her a picture of a boy who was similar in appearance to another boy she had previously been chatting to. It was suggested this prompted an argument between them. ZQ denied each of these propositions.220 222 It was further suggested to ZQ that during that argument, she took out a ‘little pink knife’ from her backpack and threatened to cut herself. In response, the accused had said words to the effect of, do you really dare to cut yourself in front of me’, he dared her to try and then said something like, ‘try cutting me instead’. ZQ denied each of these propositions.221 223 It was then suggested that ZQ cut at the accused’s arms, hands and stomach and then helped him bandage up his wounds. Thereafter, the accused changed his clothes and put on a Burberry plaid shirt/coat,222 and that after that they then caught the bus into Victoria Square and walked into Chinatown. ZQ denied each of these specific propositions.223 224 ZQ denied having seen the accused on Wednesday 9 November.224 225 ZQ was played a video recording depicting the accused, wearing a Burberry plaid shirt/coat, walking confidently through Victoria Square, into Chinatown. A female voice can be heard in that recording. The accused does not appear to be unhappy.225 226 ZQ was cross-examined as follows:226 Q. That was your voice. A. I don't know. 219 T 189.10-20. 220 T 189.21-190.26. 221 T 190.27-38. 222 Being that depicted in photograph 6 on p 3 of Exhibit D16. 223 T 191.1-192.3. 224 T 189.10-13. 225 Exhibit D22, file 9/11. 226 T 192.9-28. -- 44 of 119 -- [2024] SADC 165 43 Q. I suggest that was you taking that film of [the accused] walking on that second video through Chinatown and you said to him 'You walk like a gangster', or something like that. A. And? Q. That was you saying on that video something like 'You walk like a gangster' to [the accused] who was walking in front of you. A. I don't have any memory of that. Q. That is your voice, [ZQ], isn't it. A. I don't have any memory or recollection of that video. I don't remember taking it. Q. I suggest that what happened is that after you left Newton you got off the bus at Victoria Square and the first video saw was of [the accused] walking in Victoria Square. I suppose you disagree with that that you were there. You disagree with that, or you have no memory of that. A. I disagree with that I walked with him in Victoria Square - at Victoria Square. 227 It was further suggested to ZQ that on that night, she and the accused argued about his request for her to give him money in return for the gifts he had given her during their relationship. ZQ denied this.227 228 Finally, it was suggested to ZQ that at about 10:00pm that night, she and the accused had an argument, over the phone, during which they decided it was too hard to continue their relationship and broke up. ZQ said there was no such phone call.228 She said:229 Our relationship ended long before that. The reason I went to the police to report to the police is I want him to stop harassing me. Messages - 10 and 11 November 2022 229 There were numerous messages exchanged between ZQ and the accused on 10 and 11 November 2022 in evidence.230 230 On 10 November the accused sent the following messages to ZQ’s Instagram account:231 4:10:30 pm Blacklisted me 4:10:34 pm 227 T 192.32-193.1. 228 T 193.2-9; T 193.14-23. 229 T 193.10-12. 230 Exhibit P5 at pp 35-36 and Exhibit P6. 231 Exhibit P5 at pp 35-36. -- 45 of 119 -- [2024] SADC 165 44 Wait, I’m going to your home right now 4:10:38 pm Left me no choice 231 Exhibit P6 contains screenshots taken from the accused’s phone. It is important to set out these messages in full:232 Screenshot 1 10 November 2022 A: You’re in big trouble Wait for me at home (Audio Call) 16.50 Return the money Took my money and ran away? Pick up the phone A: Return my money B: I’ll have the things packed and return them to you. A: Pick up the phone I want the money Not return (the things) to me I don’t need Pick up the phone Screenshot 2 A: Pick up the phone I’m saying it one more time 232 Exhibit P6 contains a time stamp in the top left hand corner (14.50 on pp 1-3, 14.51 on pp 4-6). Notwithstanding the manner in which ZQ was questioned in cross-examination at T 195.30-33, I am satisfied this time stamp does not reflect the time the messages were sent. I am satisfied the time stamp reflects the time the photograph of that screenshot of the phone was taken. This explains why there are so many messages all seemingly time stamped either 14.50 or 14.51, including messages sent AFTER the missed audio calls at 16.50 (ie 4.50 pm) and 16.56 (ie 4.56 pm). -- 46 of 119 -- [2024] SADC 165 45 (Missed audio call Call back) A: Pick up the phone If this is what you want, then no one will have an easy time Pick up the phone, so (we can) communicate B: Wait a moment A: Now Immediately You really went to the police station? A: this is not a F*** joke B: I really did Screenshot 3 A: this is not a F*** joke B: I really did Both the interview and the statement were done A: ? What on earth are you up to? Pick up the phone and we talk A: Why just went without even talking to me? (Audio call) 16.56 (Missed audio call Call back) A: Talk Why you threaten me? Why you abuse me? Screenshot 4 -- 47 of 119 -- [2024] SADC 165 46 A: Why you threaten me? Why you abuse me? My body is covered with injuries you caused How many times you tried to kill me? Aren’t you clear? And you force me to say it one more time? You told me clearly not to get in touch with other girls, and it seems you were going to kill me for just chatting with a girl. Came to my home to beat me? Threatened me? Said you were going to say bad things about me to my friends? Said you were going to tell all my friends what kind of person I am? Slung mud at me? This matters has to be solved Otherwise I’ll call police Let’s go to the police station together Saturday morning I’ve made contact already. Screenshot 5 A: This matters has to be solved Otherwise I’ll call police Let’s go to the police station together Saturday morning I’ve made contact already. Surely you have to return the money I had an injury assessment at the hospital Once the result is out Let’s go to the police station I’m not joking I asked [X] to be my witness We will go to the police station after his class on Saturday -- 48 of 119 -- [2024] SADC 165 47 He knows I have injuries on the body If you want to have it solved properly, we can talk I’m not joking this time Screenshot 6 Surely you have to return the money I had an injury assessment at the hospital Once the result is out Let’s go to the police station I’m not joking I asked [X] to be my witness We will go to the police station after his class on Saturday He knows I have injuries on the body If you want to have it solved properly, we can talk I’m not joking this time 11 Nov 2022 A: Now it’s not the time to be emotional or personal, it’s up to the police station A: Please be cooperative, otherwise more time will be wasted. 232 ZQ gave evidence that she received the messages in Screenshot 1 of Exhibit P6 after she first reported the offending to police.233 233 She agreed in cross-examination that she felt bullied by the messages the accused had sent demanding compensation for the gifts he had given her.234 However, she denied that his demands for her to give him money had made her decide to go to the police. She said: 235 No, it’s because he threatened me to distribute the videos and then I decided to go to the police. 233 T 195.30-35. 234 T 193.25-35. 235 T 194.5-6, noting the word ‘dispute’ appears in error in the transcript. The word used was ‘distribute’. -- 49 of 119 -- [2024] SADC 165 48 234 She disagreed with a proposition put to her that the accused would have been equally as embarrassed if the video was seen by others. She said that she did not even know if he was depicted in the video as he was the one filming her.236 235 ZQ gave evidence that she did not know who had told the accused that she had been to the police station to report the case. However, she replied, ‘I really did’ so that he knew she had reported him to the police. She intended to warn him, she did not want him to come back and to disturb her.237 ZQ said she was unaware what he meant when he referred to an injury assessment. She denied the accused had any injuries and said, ‘No, he did not have any injury. Most of the time he hitted me.’238 She denied that the injuries to which the accused had referred in these messages were those she had inflicted upon him with a pink knife on Wednesday 9 November 2022. She said:239 I have never seen a pink knife and I have never left cuttings on his body. 236 She disagreed with a proposition that she had exaggerated the story about the accused threatening to post the video online because she was afraid he would go to the police and report her for cutting him.240 237 ZQ did agree that when she attended at the police station a second time on 10 November, she told them about having received the messages wherein the accused had requested they go to the police station together on the Saturday morning.241 Complaint Evidence – Ms Zhou 238 Ms Zhou is a teacher at XXX High School. 239 Ms Zhou first met ZQ in February 2022. ZQ was a newly arrived international student. Ms Zhou taught ZQ Chinese and also took on a pastoral role, assisting her to communicate with other subject teachers and providing her with wellbeing support associated with ‘home missing’.242 240 Ms Zhou described the concept of ‘home missing’ as something different to homesickness and more associated with missing things like the food at home, struggling with the language and general feelings of loneliness. However, Ms Zhou recalled that she had talked to ZQ from time to time about her missing her family.243 236 T 195.4-6. 237 T 54.26-55.14. 238 T 55.30-56.2. 239 T 198.37-38, noting the transcript contains an error where it says ‘…never let cutting up his body’. 240 T 199.7-16. 241 T 198.2-9. 242 T 208.14-209.12. 243 T 216.29-218.1. -- 50 of 119 -- [2024] SADC 165 49 241 Ms Zhou described ZQ as usually being a bubbly, happy and very talkative student. She said she noticed a change in ZQ at the start of Term 4 in 2022. ZQ was much quieter, occasionally appeared distressed and was misbehaving. She described ZQ’s behaviour as being ‘a bit off’. She was quiet and not as productive as she usually was. Ms Zhou gave evidence that she had a conversation with ZQ after class on a Tuesday during which she expressed to ZQ her concerns about her behaviour. Ms Zhou said that this ‘led to her disclosure to me’.244 242 In response to a leading question from the prosecutor, Ms Zhou confirmed that the ‘disclosure’ to which she had referred was in fact made on 10 November 2022 (a Thursday).245 Ms Zhou gave evidence that ZQ came to her office during lunchtime and asked to speak to her urgently. ZQ was accompanied by her friend, C. They went to a classroom to talk. ZQ spoke in Mandarin. The words spoken by her, when translated to English, were to the effect that she had been ‘bullied or taken advantage’ of.246 243 Ms Zhou asked ZQ some further questions to understand more clearly what her concerns were. She asked ZQ if she was safe and ZQ said she did not know. She asked her if she felt safe, and ZQ told her that at that time she did not feel safe. As to why, ZQ said her ex-boyfriend had been pressuring her to go back to the relationship. She gave the following evidence:247 Q: Did she say how. A: She did, she explained that he has been nagging her and bullying her online, I think using WeChat as their communication tool, and I believe - I can’t remember one or two nights before that day that [ZQ] was working in Chinatown or one of the restaurants in Chinatown, I think, and she said she was scared because she finished work at night-time and when she got out of the workplace, that he was there waiting for her. 244 Ms Zhou said that ZQ showed her some of the messages he had sent her, and a few derogatory words had been used.248 245 Ms Zhou gave evidence that ZQ told her that her relationship with the ex- boyfriend had been a sexual relationship. She asked ZQ if the sex was consensual. ZQ told her that ‘initially, the first time, it was consensual but then it was not consensual, she said she was forced.’249 Ms Zhou could not recall whether ZQ told her when the forced sex had occurred but she believed it was recent.250 ZQ had told her that the last time they had had sex it was forced.251 244 T 209.13-24. 245 T 210.15-18. 246 T 211.8-18. 247 T 211.37-212.7. 248 T 212.10-16. 249 T 212.25-27. 250 T 212.33-35. 251 T 214.26. -- 51 of 119 -- [2024] SADC 165 50 246 As to whether ZQ had told her anything else about abuse, Ms Zhou gave the following evidence:252 A. I remember that she was particularly scared that he was stalking her around her homestay place and workplace, especially workplace. I remember she told me that she sometimes work at night shift and might finish at around 9 or 10 p.m., so that's when she was really scared that she - he was waiting for her. And she also told me that that particular night - like I said, I can't remember it was one night or two nights before we had that conversation on Thursday - that she told me that he grabbed her and were pulling her around by grabbing her arm, stopping her to - stopping her leaving. Q. Did she say where that happened. A. I think it was around Chinatown. 247 Ms Zhou said ZQ showed her bruises on both arms. ZQ was very stressed and teary and kept saying she did not feel safe.253 248 Ms Zhou confirmed that at some time during this conversation she asked C to leave, but she could not recall precisely when. She also arranged for the assistant principal to join them and it was explained to ZQ that they had a mandatory duty to report the matter to police.254 Mr Colella’s Evidence 249 Mr Colella was the accused’s homestay host from about June 2022 until shortly after ZQ reported the alleged offending to police.255 250 The accused was one of three male international students living with Mr Colella at this time, at his home in Newton. Each of the students had their own separate room, with the accused’s bedroom being located at the opposite end of the house from Mr Colella’s room.256 One of the other students was a Chinese boy, A. The other student was a Cambodian boy.257 251 Mr Colella imposed various house rules on the students but no curfew as such, instead treating his students as adults.258 There was a rule in place prohibiting female visitors from staying overnight.259 252 Mr Colella worked fulltime, from Monday to Friday during the relevant period. He would generally arrive home from work between 5:30pm and 6:00pm. 252 T 212.38-213.12. 253 T 213.13-24. 254 T 215.25-37. 255 T 222.27-29; T 237.9-15. 256 See floorplan, Exhibit D15, noting that Mr Colella said there was another room that was missing from the plan, with that room being located between the accused’s room and the room marked ‘Cambodian boy 16’. This room was vacant at the time; T 240.14-18. 257 T 239.29-32. 258 T 223.23-34. 259 T 224.1-12. -- 52 of 119 -- [2024] SADC 165 51 He usually stayed at home on weeknights but would occasionally go out to socialise on a weekend, returning home by night-time.260 253 When Mr Colella was home, he had some, albeit limited, interactions with the students, including the accused. 254 Mr Colella described the accused as respectful and cooperative. He did not have any issues with him.261 He recalled the accused having a Chinese female friend, about the same age, who started visiting the house about a month or two after the accused first came to live with him. Thereafter, her visits were constant. She would always visit at the start of the week, usually on both Monday and Tuesday, although occasionally she might have ‘popped past’ another day or on a weekend.262 She never stayed overnight, to his knowledge.263 Mr Colella said:264 A. … My interaction with them, as with all the students, was they mainly stay in their room and they'd only come out for a drink or for food and that sort of thing. If I went into their room, it would be for a particular purpose so there would be an interaction then. But they don't sit with me in the lounge room and discuss things. 255 He said when the accused and this girl were in the accused’s bedroom, the door would always be closed. Occasionally he would go to the room to let the accused know that dinner was ready and he would see one of them sitting on the bed and the other on an office chair at a desk.265 He would always knock before he entered.266 256 On occasions, when he arrived home from work, the accused and the girl would be in the process of making their own dinner, although generally he (Mr Colella) would prepare dinner.267 257 Mr Colella was responsible for washing the sheets in the accused’s bedroom. He said he did this ‘maybe every three or even five weeks.’268 258 Mr Colella was asked if he had ever heard any noises or disturbances coming from the accused’s bedroom. He said he had not, but reminded the Court that his bedroom was at the other end of the house from the accused’s bedroom.269 260 T 224.13-21; T 228.25. 261 T 223.10-21. 262 T 224.28-225.11; T 226.29-227.5. 263 T 227.6-11. 264 T 225.14-20. 265 T 225.37-226.16. 266 T 226.22-28. 267 T 226.17-21. 268 T 239.23-27. 269 T 231.18-22. -- 53 of 119 -- [2024] SADC 165 52 259 Mr Colella said that he did not observe any conflict between the accused and the girl except on one particular occasion, which occurred earlier during a week in November 2022, on either a Monday or a Tuesday. He said:270 A. On that particular day when, I would have come home from work, I would have prepared a meal. They were outside in the pool area. [The accused] was sitting on the lounge and she was standing there. I observed that when, I didn't take too much notice but I observed that after her scream. I went out there and she was upset and said he threw the glasses, her glasses in the pool so I helped her retrieve it. After that she went back into the bedroom and got her things. I wasn't with her, I went back to the kitchen and they both left. 260 Mr Colella gave evidence that when he had arrived home from work around 5:40pm, the accused and the girl were in the accused’s bedroom. He did not hear anything from them while they were in the bedroom. From the kitchen, where he was, he did not see them move from the bedroom to outside. However, the back door was open and he heard the girl yelling and screaming.271 He recalled this being after about 7:00pm.272 261 Mr Colella described the girl as distressed and upset. The accused just sat on the lounge chair with his head down. The accused was very quiet and reserved, being different to his usual demeanour (very approachable and very friendly). Mr Colella gave evidence that he had jokingly said to the girl, words to the effect of, ‘if he gives you a hard time let me know and I’ll sort him out.’ He retrieved her glasses from the pool and went back inside. He said she then went back into the accused’s bedroom for a few minutes and then left and the accused ‘got up and left with her’. 273 262 He said he never saw the girl after this.274 263 Mr Colella gave evidence that he intended to speak with the accused later, to follow up about the incident, but ‘I didn’t get an opportunity to because I didn’t see him any other time.’275 264 Mr Colella gave evidence that he had not seen the girl acting in an unhappy way around the accused, other than on that occasion, nor had he heard any other arguments between them.276 He had never seen the girl behave in a way which suggested she was there against her will. She was always very polite to him.277 270 T 228.13-22. 271 T 227.33-37; T 228.23-229.4; T 229.27-230.21. 272 T 228.35-36; noting that in cross-examination, Mr Colella said he saw them in the pool area just after 6:00pm; T 239.3. 273 T 230.23-38; T 239.11-22. 274 T 227.27-28. 275 T 227.33-37. 276 T 237.25-31. 277 T 238.9-13. -- 54 of 119 -- [2024] SADC 165 53 265 Mr Colella gave evidence about some text messages sent to him by the accused on Thursday 10 November 2022 at a time when Mr Colella was in bed, and half asleep.278 It is important to reproduce these messages, as tendered, in full: < Saatudent Yibo Thursday, 10 November I’ll go to the hospital and the police station tomorrow afternoon MMS 9:57 pm What happened 9:58 pm My girlfriend did all this on Wednesday 9:59 pm What time are you coming home 10:00 pm maybe, 11:30 10:01 pm We had a fight on Wednesday, and then that night she stabbed me 10:02 pm If I hadn’t ducked, she would have stabbed me. She has depression. It’s not her first time 10:03 pm That’s no good hopefully I am awake when you get home otherwise will see you in the morning 10:05pm ok 10:05 pm Can I call the police? But she’s 16 11:10 pm 278 Exhibit P18. -- 55 of 119 -- [2024] SADC 165 54 I just learned it’s illegal to have sex with someone under 17 11:11 pm Don’t tell them 11:12 pm But what if the police ask? And what if my girlfriend tells them on purpose 11:13 pm I wouldn’t worry it’s got nothing to do with what has happened 11:15pm But I was afraid she’d get back at me, and then she called the police about the sex 11:17pm Friday, 11 November We quarreled and she wanted to commit suicide, I said you will commit suicide, you have the ability to kill me, she really got in my arm cut, then I hid in the past, she is going to stab my waist, fortunately I hid in time, otherwise the pain to the stomach 7:35 am (my emphasis) 266 Mr Colella said he was unaware of any previous occasion, nor did he see any conflict between the accused and the girl, relevant to what the accused had described in these messages. He explained that when he wrote, ‘Don’t tell them’, he was referring to the police. He said that this was a silly response but he was trying to process this information, which he was only hearing for the first time, when he was half asleep.279 267 Mr Colella gave evidence that he did not see the accused that Thursday night but that he saw him on the Friday morning. He went into the accused’s bedroom. The accused loosened a bandage and showed him wounds on his stomach and on 279 T 233.8-24; T 234.2- 235.12. -- 56 of 119 -- [2024] SADC 165 55 one arm. He thought the accused needed medical attention and made enquiries to organise this. However, it did not eventuate as the police attended at the home and took over the accused’s welfare from thereafter.280 268 Mr Colella described the accused’s wounds in the following terms:281 A. What I saw, it was just grazed or cut-type wound, I didn't see anything that actually was open or anything like that but it just seemed to be deep. Deep grazed cut, bloodied-type wound, which was bandaged, so - and I thought 'That's got to be looked at'. Q. When you say it was bandaged, was it like that before - when you first encountered [the accused], were the bandages already there. A. Yes. Q. That was to the stomach and the arm. A. Yes. 269 He could not remember the accused showing him any injuries on his leg, nor did he notice any injuries in between his hands.282 Police Evidence 270 The investigation officer, Officer Gracin, gave evidence. 271 He gave evidence that he attended at the accused’s homestay address on Thursday 10 November 2022 in order to speak with the accused, however he was not home. He did not say what time he attended but said that he spoke to Mr Colella at that time.283 This evidence was not challenged. 272 Officer Gracin said his colleagues returned to the house the next day and arrested the accused.284 As part of the custody process, police took photographs of the accused’s injuries.285 273 At that time, various photographs were taken of and inside the house by Detective Brevet Sergeant Dennis.286 The photographs include photographs of the accused’s bedroom, which was generally untidy. The accused’s bedsheets appear to be dirty.287 A forensic light was used on the bedsheets to determine the presence of bodily fluids.288 A sheet was taken from the bed into police custody.289 280 T 236.4-23; T 236.37-237.10; T 240.22-241.9. 281 T 236.26-36. 282 T 240.35-38; T 241.10-14. 283 T 242.18-24. This was not mentioned at all by Mr Colella. 284 T 242.25-31. 285 T 245.14-19, noting there were no such photographs in evidence. 286 Exhibit P19. 287 Ibid at photograph 13. 288 T 243.18-26; Ibid at photographs 14-17. 289 T 243.27-30; Ibid at photograph 19. -- 57 of 119 -- [2024] SADC 165 56 274 In addition, two mobile phones (including an Apple iPhone) and two laptops, identified as being owned and used by the accused, were seized. These devices were submitted to SAPOL Digital Evidence Section for their content to be extracted. Officer Gracin reviewed the iPhone and determined it contained two identical files of the video (Exhibit P7), with a creation date of 21 August 2022. The video was also found on one of the laptops.290 275 In cross-examination, Officer Gracin confirmed that at a proofing on 7 August 2023, ZQ was asked who she had told about the alleged offending, and she had provided him with the names of her friends, C, P and J. There was no evidence as to whether an interpreter was present at that proofing. Officer Gracin said he called ZQ four weeks later to obtain the contact details for those friends. At that time, ZQ told him that she had remembered that she had only told her friends about her feelings for the accused. She did not provide him with her friends’ contact details.291 Again, there was no evidence as to whether ZQ had the benefit of an interpreter during this conversation. 276 In cross-examination, Officer Gracin confirmed that ZQ had been given the option to attend at Yarrow Place but that she did not take up that option.292 He was not asked precisely when that option was made available to ZQ, nor if it was explained to ZQ, through an interpreter, as to the purpose of any such attendance. DNA Evidence293 277 A fitted sheet was seized from the mattress in the accused’s bedroom on 11 November 2022 and submitted to the Forensic Science centre for analysis. 278 Semen was found on the bed sheet.294 Two separate cuttings, each containing a blood-like, semen positive stain, were taken from the bed sheet. 279 The first cutting (1.01-01) contained a sperm fraction containing a partial single source DNA profile, which when tested, produced a statistical weighting of 4, in favour of the hypothesis that the accused was a contributor to that DNA profile. From an epithelial fraction, a mixed DNA profile was found, with three contributors. The statistical weighting in favour of the hypothesis that the accused was one of those contributors, compared to an unknown person, was greater than 100 billion. Similarly, the statistical weighting in favour of the hypothesis that ZQ was one of those contributors, compared to an unknown person, was greater than 100 billion. 280 The second cutting (1.01-02) contained a sperm fraction containing a mixed DNA profile with two contributors. The statistical weighting in favour of the 290 T 243.31-244.21. 291 T 244.22-245.13. 292 T 245.20-24. 293 This was the subject of agreement as set out in Exhibit P21 at [3]-[22]. I refer to that evidence for its full terms and effect. 294 Exhibit P20. -- 58 of 119 -- [2024] SADC 165 57 hypothesis that the accused was one of those contributors, compared to an unknown person, was greater than 100 billion. From an epithelial fraction, a mixed DNA profile was found, with three contributors. The statistical weighting in favour of the hypothesis that the accused was one of those contributors, compared to an unknown person, was greater than 100 billion. Similarly, the statistical weighting in favour of the hypothesis that ZQ was one of those contributors, compared to an unknown person, was greater than 100 billion. Defence Case A’s Evidence 281 A is now 20 years of age and is an international student from China, studying in Adelaide. He gave evidence that he arrived in Adelaide in 2019 and in that year started living with Mr Colella at his Newton house. He knows the accused because they both lived together for a period at that house.295 282 A had his own bedroom at the front of the house, adjacent Mr Colella’s room. As such, his bedroom was a considerable distance from the accused’s bedroom, which was located towards the rear of the house.296 283 A gave evidence that when he and the accused were living together, they would socialise together, both in and outside of the house. The accused would sometimes have friends visit at the house, including ZQ. A gave evidence that ZQ visited about one to two times a week and he saw ZQ and the accused interact in the living room (where they would be chatting or playing video games on their phones) or in the kitchen. The accused and ZQ would also spend time alone together in the accused’s bedroom.297 284 A said he never saw ZQ fighting with the accused, nor did he ever see ZQ acting unhappily towards the accused. He described their relationship as close.298 285 A recalled attending an 18th birthday dinner for the accused at Hot Pot in Chinatown. ZQ was not in attendance.299 BQ’s Evidence 286 BQ gave evidence that he met the accused in about August or September 2022, through his friendship with A. He studied with A at a Chinese school on Saturdays. 287 BQ gave evidence that he would spend time with the accused every one or two weeks and that he had visited the house at Newton.300 295 T 253.9-18; T 254.8-13. 296 T 254.18-24. 297 T 254.26-255.35; T 256.30-32. 298 T 255.36-256.12. 299 T 256.15-20. 300 T 258.8-259.9. -- 59 of 119 -- [2024] SADC 165 58 288 BQ knew ZQ because one of his friends went to the same school as her. He said that he saw ZQ when he went to a gym after school. They would have a quick chat to each other outside the gym before he went inside. He said this happened ‘many times.’301 He had also been at an e-bike shop with ZQ and a group of friends when ZQ had assisted to communicate with the salesperson because her English was better than some of the others. He had also been at a picnic in Belair with ZQ.302 289 BQ gave evidence that he had seen the accused and ZQ together. He did not say on how many occasions or in what circumstances he had seen them together. 290 He said he had never seen them fighting and they always seemed happy together. He was uncertain if ZQ had been present at a birthday dinner he had attended for the accused at Hot Pot in Chinatown in 2022.303 During his interactions with ZQ in 2022, he had never seen her unhappy.304 291 BQ gave evidence that he saw the accused on both the Wednesday and the Thursday in the week that the accused was arrested. He said that he arranged to catch up with the accused on the Wednesday to help him with his schoolwork. He called the accused at about 4:00pm to see if he was free to meet him somewhere near his home in Myrtle Bank. The accused called him again at about 7:30pm in order to get his address. He knew that the accused was with ZQ at that time, as shortly into the conversation, ZQ had grabbed the phone and started talking to him. He said, ‘She was happy, she even made a joke’.305 292 BQ said he saw the accused at around 9:00pm or 10:00pm that night at a park near his house in Myrtle Bank. They went to get food from the OTR. They sat down and chatted. He said he ‘accidentally’ touched the accused on his forearm, to which the accused had responded ‘no’ as it was hurting. He could not recall which arm he had touched.306 293 BQ gave evidence that he saw the accused the next day in Chinatown, at which time the accused showed him his wounds. He described these as a cutting on both of his arms which was starting to scar. The cuttings were not bleeding, nor were they bandaged. The accused also lifted up his shirt to show him cuttings on his chest and his tummy. He said there were one or two bandages on the tummy.307 294 BQ was played an audiovisual recording which depicted the accused walking in Chinatown on Wednesday 9 November, wearing a distinctive Burberry 301 T 259.16-260.20. 302 T 260.25-38. 303 T 261.2-22; T 262.20-23. 304 T 268.8-10. 305 T 262.30-263.38. 306 T 264.1-17. 307 T 264.24-265.17. -- 60 of 119 -- [2024] SADC 165 59 shirt/coat. He was asked if he recognised the voice of the female which could be heard in that recording. He said he recognised this as ZQ’s voice.308 295 In cross-examination, BQ gave hearsay evidence that the accused told him that ZQ had used a knife to cause his wounds. He could not recall if the accused said this had happened on the Monday, or if he had told him where it had happened.309 Closing Addresses of Counsel Prosecution Submissions General Observations 296 The closing address of the prosecutor was necessarily focussed on demonstrating why the Court could be satisfied that ZQ was both a credible and reliable witness, both by reference to her own evidence and other independent evidence which either supported aspects of her account or was consistent with her account. 297 The Court was urged to undertake its assessment of ZQ’s evidence having regard to her young age, both at the time of the prescribed interviews (16) and when giving evidence in Court (18), the difficulties posed by the language barrier and what were described as cultural insensitivities associated with her discussing intimate details of the alleged offending and other aspects of her relationship with the accused. 298 It was submitted that these factors, together with the natural frailties of human memory, readily explained why ZQ’s recollection of certain details had changed over time, thus providing an explanation for some apparent inconsistencies in her evidence. For example, precisely when the first occasion of forced sexual activity occurred or when it was that the couple broke up – given there was no dispute that they did remain in contact both online and in person after the break-up. 299 The prosecutor noted that ZQ had given evidence over several days and was subjected to rigorous cross-examination, albeit that questioning was focussed mainly on peripheral issues. It was submitted that ZQ had made appropriate concessions during that questioning – specifically, she had conceded that she was upset with the accused because he was seeing other girls during the relationship and she acknowledged that she had tried to catch him out, by pretending to be another girl online. 300 ZQ had also candidly agreed that she had been prepared to lie to her homestay mother, in order to stay overnight at the accused’s house. 308 T 265.23-32; Exhibit D22, file 9/11. 309 T 266.15-21; T 267.34-268.7. -- 61 of 119 -- [2024] SADC 165 60 301 As to the latter conduct, it was submitted that it was unremarkable that two teenagers who were romantically involved and wanted to see each other would make up excuses or lie, to make that happen. This was entirely different to making up a serious allegation of rape and then persisting with that lie over several years. It was submitted it was simply unfair to use that as a basis for having a reasonable doubt as to the reliability and credibility of ZQ’s account of the offending. 302 It was submitted that in several important aspects, ZQ’s evidence was either supported by, or consistent with, other cogent evidence. I will deal with each aspect of the evidence as identified in turn. The Video 303 ZQ claimed that she was forced to continue to have sex with the accused, as he had threatened to publish a video (or videos) of her engaging in sexual activity with him. 304 The video was proof of the existence of such a recording. The contents of the video demonstrated that the accused had continued to film the activity, notwithstanding ZQ had made it known to him that she wanted him to stop recording. This was consistent with how ZQ had characterised their relationship after they had broken up, namely, the accused had coerced her to continue to see him thereafter. ZQ had readily acknowledged she was ‘shy’ about being recorded but had continued with the sexual activity at that time, when they were still in relationship, as she wanted to please the accused. 305 The fact the accused kept the video, after their break-up, was consistent both with ZQ’s evidence as to his threats to publish it and with him continuing to have a sexual interest in ZQ, after, and notwithstanding, their break-up. 306 The accused cannot be seen in the video whereas ZQ is readily identifiable. Notwithstanding ZQ had not seen the contents of the video, she was aware that the accused had filmed them engaging in sexual activity and that he was the one filming her and using a handheld phone to do so. The Court was asked to reject any submission to the effect that the accused would have been equally embarrassed by the publication of the video. The Messages 307 The Court was asked to carefully consider each thread of the messages exchanged between ZQ and the accused. While these messages demonstrated, at times, immature and jealous behaviour on the part of both ZQ and the accused, what was the most dominant and constant theme from the messages, was the power imbalance between the accused and ZQ and the level of control exerted by the accused over ZQ. 308 The accused refused to accept it when ZQ blocked him as a contact or friend on WeChat and/or Instagram and demanded she ‘unblock’ him and ‘re-friend’ him – being requests she immediately complied with. -- 62 of 119 -- [2024] SADC 165 61 309 He persisted in his demands for her to visit him and told her that she would ‘be sorry’ if she did not. 310 He demanded she pay him money to reimburse him for gifts he had given to her, rather than simply accept the relationship was over and move on. 311 The fact of these conversations and the language used by the accused in his communications with ZQ was consistent with her description of him bullying her online and refusing to accept that she may no longer wish to have contact (either in person or online) with him, being an integral component of her account of the alleged offending. 312 ZQ’s evidence that she had sent the accused a photograph of her engaging in self-harm was consistent with her evidence as to the volatility of the relationship and demonstrated the hardship she had endured throughout the relationship. 313 There was ultimately no dispute that the accused and ZQ had seen each other and communicated online after they had broken up. As such, the fact that ZQ and the accused continued to message each other after ZQ had said they had broken up, was irrelevant. 314 Further, the text messages demonstrated that by mid-September, consistent with ZQ’s evidence, the relationship was, at the very least, struggling. The fact the accused had sent ZQ the message on 15 October, ‘I’m not your boyfriend’ was consistent with them having broken up before then and consistent with ZQ’s claim she was forced to have sex with the accused about five times from mid-October to November.310 This was also consistent with ZQ’s evidence, elicited in cross- examination, that they had broken up well before 20 October 2022. 315 Most importantly, there were specific messages sent by the accused to ZQ consistent with ZQ’s evidence that the accused had threatened to publish the video(s). Those messages included those sent on 16 September 2022, which were sent by the accused in the context of ZQ trying to block him on social media, namely, ‘I’ve already have one person sent off’, followed shortly thereafter by, ‘I’ll keep posting if you do anything further in the future’ and, ‘I’ve posted one’. 316 It was submitted that the only available inference from the accused’s messages sent on 2 October 2022, namely, ‘I’ll make you famous in XXX High…You’ll see’, was that as described by ZQ - this was a threat by the accused to publish the video(s) to students at ZQ’s school. It was submitted that the suggestion that this was in fact a threat by the accused to release a photograph of ZQ with another boy in Rundle Mall was implausible having regard to all of the 310 Noting it was also submitted that this evidence, of other occasions of forced sexual activity, put the alleged offending in context, it explained why she continued to visit the accused and submitted to the sexual abuse on the occasion of the alleged offending. -- 63 of 119 -- [2024] SADC 165 62 circumstances. This had been invented to try to provide an innocent explanation for what was a damning message in the context of the allegations. Implied Admission 317 The accused sent Mr Colella a series of text messages late on Thursday 10 November 2022, wherein he accused ZQ of having stabbed him the night before and said, ‘But she’s 16…I just learned it’s illegal to have sex with someone under 17’.311 318 It was submitted that the only available inference from this message was that the accused knew ZQ was 16 when they were having sexual intercourse and that the sexual acts extended after he turned 18 on 24 October. In other words, it was submitted that by this message, the accused was admitting he had recently had sex with ZQ when she was aged 16. It was submitted that if the accused had stopped having sex with ZQ before his birthday, why bother mentioning it to Mr Colella over two weeks later on 10 November? 319 It was the prosecution case that the accused said this to Mr Colella, at this time, as he was concerned that ZQ may report him to the police for having recently forced him to have sex with her.312 DNA Evidence 320 It was submitted that the DNA evidence was consistent with a finding that there had recently been sexual activity between ZQ and the accused, in the accused’s bed, consistent with ZQ’s account of the alleged offending. 321 However, the prosecutor acknowledged that it was agreed fact the sheets appeared dirty and unwashed, and that Mr Colella gave evidence that he was responsible for washing the sheets, and only did so every three to five weeks. In other words, the DNA evidence was also potentially consistent with the accused and ZQ having had sexual intercourse in that bed before 24 October 2022, when the accused was still only 17. Mr Colella’s Evidence 322 ZQ’s account of what had happened in the courtyard, near the pool, after the alleged offending had been corroborated by Mr Colella’s evidence. What Mr Colella had observed was an example of how the accused acted towards ZQ – that is, in a controlling and intimidating manner. 323 Further, the fact Mr Colella did not see ZQ after the night of that incident was inconsistent with any suggestion that ZQ had visited the accused, at the Newton 311 Exhibit P18 at p 4. 312 Noting that notwithstanding this submission, the prosecution expressly disavowed any reliance on consciousness of guilt reasoning. -- 64 of 119 -- [2024] SADC 165 63 house, on the afternoon/evening of Wednesday 9 November and consistent with ZQ’s evidence that she did not go there that night. Complaint Evidence 324 The evidence of initial complaint was said to be compelling evidence which demonstrated a high degree of consistency in ZQ’s account. 325 The complaint had been made shortly after the alleged offending to a trusted teacher, someone in whom ZQ had previously confided about missing home and someone with whom she could communicate in Mandarin. 326 ZQ had been distressed and teary throughout the conversation with Ms Zhou. She had complained of her ex-boyfriend bullying her online and recently forcing her to have sex, notwithstanding they had broken up. A consistent theme of the conversation was that ZQ was not feeling safe and felt pressured by her ex- boyfriend. She had also shown Ms Zhou the bruises on her arms. The fact she had not gone into detail about the sexual offending was indicative of her demonstrated discomfort in talking about that topic. 327 Further, it was submitted that Ms Zhou’s observations of a change in ZQ’s behaviour at the start of Term 4, when she noticed her to be quiet and occasionally distressed, was also consistent with ZQ’s evidence about the nature of her relationship with the accused at that time. The fact that Ms Zhou thought it necessary to talk with ZQ after class on the Tuesday, that is, the day after the alleged offending, was also compelling evidence which lent support to ZQ’s account. The Audio/Video Files 328 It was submitted that rather than detract from ZQ’s reliability and credibility, the various audio and video files in evidence supported ZQ’s account that she continued to see the accused, after the break-up, because of his ongoing threats to publish the video. It was submitted that even if ZQ was with the accused on Wednesday 9 November, which she categorically denied, that was not inconsistent with her having been raped two days earlier, in the context of her feeling pressure to see the accused because of his continued threats. Motive to Lie 329 The prosecutor referred to two potential suggested motives for ZQ to lie about the alleged offending. 330 The first related to the allegation made by the accused in his phone message to Mr Colella on Thursday 10 November 2022 that ZQ had stabbed him the night before. 331 The prosecutor submitted that the accused had lied to both Mr Colella and BQ by making up a self-serving and false allegation about being stabbed by ZQ, -- 65 of 119 -- [2024] SADC 165 64 to portray ZQ in a negative light (and as the aggressor) and to paint himself as the victim.313 332 The photos of the wound on the accused’s arm, sent by the accused to Mr Colella, were said to be more consistent with ZQ having scratched the accused, during forced sex on the Monday night, as claimed by ZQ, rather than having been caused by a deep knife wound. 333 Further, BQ said that when he (allegedly) spoke to ZQ on the Wednesday night at around 7:30pm, she sounded happy and had made a joke with him. It was submitted that the female voice that can be heard on the video/audio file, depicting the accused walking in Chinatown on Wednesday 9 November, was a happy voice. This simply did not fit with an allegation that ZQ was so distressed that night that she was threatening to self-harm and in fact stabbed the accused several times. 334 Further, when BQ apparently saw the accused’s wounds on the Thursday, he described the arm wound as starting to scar, more consistent with it having been caused several days earlier, not the day before. 335 It was submitted that if ZQ had made up the allegations, as she was worried the accused would report her to the police, she could have gone straight to the police to do so, rather than first seek out Ms Zhou, to tell her about the offending. Further, the fact of ZQ making the allegations to police would, of itself, achieve that intended goal – that is, to deflect attention away from any bad conduct on her part, onto the accused. If ZQ was lying for that purpose, there was simply no need for her to go down the very difficult and traumatic path of continuing that lie, through multiple police statements (which were clearly awkward for her), and then give evidence at trial, which included a requirement for her to travel from interstate on two separate occasions. 336 Another potential motive to lie was said to relate to ZQ’s jealousy and distress at the fact the accused had been seeing other girls during the relationship. However, it was submitted that this simply did not fit with the other evidence including her attempts to block the accused on social media, her rejection of his requests for her to visit him on multiple consecutive days and her clear reluctance to talk about their sexual relationship to the police. 337 It was submitted that the Court could safely reject any alleged motive to lie.314 Accused’s Submissions General Observations 338 The defence case was that the accused did not have sexual intercourse with ZQ at, at any time after he turned 18 on 24 October 2022 and specifically that he 313 As previously stated, this alleged lie was not relied upon as demonstrating any consciousness of guilt. 314 Noting the prosecutor made it clear that by these submissions, he was not inviting the Court to reason as to why ZQ would lie, rather he sought to argue why the Court could not be satisfied as to the existence of any specific motive(s) for her to lie; T 322.29-323.1. -- 66 of 119 -- [2024] SADC 165 65 did not have sexual intercourse (whether forced or otherwise) on 7 November 2022. 339 It was submitted that ZQ’s evidence was vague and unconvincing, and in many important aspects, ZQ had simply resorted to saying, ‘I can’t remember’. During cross-examination she appeared at times to be bored and disinterested, with many of her answers being unresponsive and/or non-sensical. This was something that could not simply be explained by reference to ZQ’s age and/or any language issues. 340 Counsel for the accused was particularly critical about ZQ’s evidence as to the supposed ‘uncharged acts’ of other occasions of alleged forced sexual activity. These were said to be wholly unparticularised to the point that there was no evidence of some of these alleged acts, such that they were incapable of supporting the inferences as alleged by the prosecution.315 341 It was submitted that ZQ’s evidence was rife with internal inconsistencies and had been discredited by both prosecution and defence witnesses. 342 Simply put, it was submitted that ZQ’s evidence was neither credible nor reliable, such that the Court could not be satisfied of the accused’s guilt as to either count, beyond reasonable doubt. Internal Inconsistencies in ZQ’s Evidence 343 Counsel for the accused identified numerous apparent inconsistencies in ZQ’s evidence, namely: • in the first ZQ interview, ZQ said her relationship with the accused ended on a specific date, namely 7 September 2022,316 whereas in the second ZQ interview, she said the relationship ended at ‘end of September, nearly October’.317 It was submitted that this response was possibly indicative of the relationship lingering in a bad state, with no obvious ending, until ZQ made her report to police. • In the first ZQ interview, ZQ said that she thought the first act of forced (non- consensual) sexual intercourse occurred within a week after they broke up.318 In the second ZQ interview, she said it occurred two weeks after the break- up.319 • In the first ZQ interview, ZQ provided details of the first forced occasion of sexual intercourse, including that the accused had showed her the video.320 At 315 T 319.36-320.5. 316 MFI P2 at line 36. 317 MFI P4 at line 164. 318 MFI P2 at line 121. 319 MFI P4 at line 1233. 320 MFI P2 at lines 232-284, noting that at line 244, ZQ nodded in response to Officer Perry saying ‘OK so he showed you the actual video you saw it, yup ok…’. -- 67 of 119 -- [2024] SADC 165 66 the time of the second ZQ interview, ZQ could not remember any of the details of this alleged first occasion of forced sexual activity.321 Further, in the second ZQ interview, ZQ said, on more than one occasion, that she had never seen the video.322 • It was submitted that in the first ZQ interview, ZQ said that on the first occasion of forced sexual activity, ‘I remember I arrived at eight and then…’.323 This was said to be inconsistent with the evidence she gave in cross-examination that she never needed to tell her host mother where she had been, as she always arrived home prior to her 9:00pm curfew. However, although the transcript of the first ZQ interview, MFI P2, records the words ‘I remember I arrived at eight and then’, in fact, the words used were ‘I remember I arrived at his place and then’. As such, there was no inconsistency. • During the second ZQ interview, when describing what had occurred at the time of the alleged offending, ZQ said the accused threatened to give the video to her friends. She tried to grab his phone from his hand, he sent the video to his social account but then deleted it two to three minutes later.324 None of this detail was included in the first ZQ interview. Further, it was submitted that if the video had in fact been posted to others, it was surprising that there was no evidence of any fallout having occurred from this. • It was also submitted that what ZQ had said in the first interview about this was that the accused had grabbed her phone, causing swelling and bruises to her hand.325 However, what ZQ said about her hand being bruised and swollen in the first ZQ interview was in reference to an incident she said occurred in mid to late October when she tried to take back her phone from him.326 It was not in reference to what occurred during the alleged offending. There was no such inconsistency. • In the first ZQ interview, ZQ had said, variously: (a) that the first time the accused forced to have sex with her, being within a week of their break-up, he videotaped it;327 321 MFI P4 at line 1240. 322 MFI P4 at lines 1102-1106 and line 1223. 323 MFI P2 at line 238. 324 MFI P4 at lines 451-566. 325 T 301.28-32. 326 MFI P2 at lines 459-480. 327 MFI P2 at lines 121-129, noting that when asked for clarification, ZQ later said the videos were made earlier, when they were going out; lines 130-143. -- 68 of 119 -- [2024] SADC 165 67 (b) the videos of her and the accused engaging in sexual activity were made ‘when we were going out’328 (and therefore, in other words, when they were having consensual sex); (c) when asked if the accused had ever recorded her when they had sex without her consent, she said, ‘He may have done so, he may have done so once’;329 (d) when asked if she would continue to have consensual sexual intercourse with the accused when she knew he was recording, she said, ‘when he was recording me I wanted to scream’330 and then described him putting his hand over her mouth to stop her from making noise. When asked when this had happened she said ‘it happened between mid...October to end of October’.331 • During the first ZQ interview, when asked if the accused had ejaculated at the time of the alleged offending, ZQ had said she was not sure if he had ejaculated.332 In the second ZQ interview, she said he did not ejaculate at that time.333 It was submitted that as ZQ had acknowledged that she understood this line of questioning, any purported language barrier did not account for this inconsistency. • It was submitted that in the second ZQ interview, ZQ had only mentioned the last occasion of forced sexual activity on the Monday (7 November) in response to a leading question at line 379. However, this is not an accurate description of that evidence. From lines 211-259 of the second ZQ interview, ZQ stated that the last time she had forced sexual activity with the accused happened on the Monday. She then went on to discuss, in more detail, what had happened at that time. • It was submitted that ZQ told Officer Glasson on 10 November 2022 that she sustained bruising to her right arm, above the elbow, when the accused grabbed it during the alleged offending, whereas she had said in the first ZQ interview that the bruising was to her left arm.334 Although Ms Zhou observed bruises to both of ZQ’s arms on 10 November, the fact ZQ could not consistently recall which arm was bruised was said to be due to her not telling a truthful story as to how the bruising was sustained. That is, in fact the 328 MFI P2 at line 143. 329 MFI P2 at line 175. 330 MFI P2 at line 196. 331 MFI P2 at line 204. 332 MFI P2 at lines 520-523. 333 MFI P4 at line 999. 334 This is an inaccurate description of the evidence. There is nothing in the first ZQ interview about any bruising having been sustained by ZQ to either arm at any time during the alleged offending. ZQ talked only of bruising to her hand having occurred during an incident in late October when the accused took her phone and she tried to take it back; MFI P2 at lines 459-480. It was during the second ZQ interview that ZQ said the accused had slapped (or beat) her on her arm during the alleged offending, causing a bruise on her left arm; MFI P4 at lines 302-313. -- 69 of 119 -- [2024] SADC 165 68 bruises were sustained when she was struggling with the accused at his house on 9 November, when she was in possession of the pink knife and had cut the accused. This was said to be an explanation supported by the evidence of the video taken on 9 November, BQ’s evidence and Ms Zhou’s evidence that ZQ had seen the accused in Chinatown the day or two prior to making the complaint.335 • It was submitted that ZQ had simply not told the truth when she denied having seen the accused on Wednesday 9 November. ZQ’s Evidence not supported by other Evidence 344 Counsel for the accused submitted that ZQ’s evidence as to what occurred on 7 November 2022 received no support from the other evidence heard at trial. 345 ZQ had variously claimed the relationship had ended by 7 September (and or late September/early October). However, the text messages and video files demonstrated that ZQ and the accused remained in contact, both online and in person, throughout September and October. During this period, they had taunted each other to provoke jealousy, with them being friends one day and seemingly ‘frenemies’ the next. It was submitted that ZQ’s apparent jealousy at the accused for communicating with other girls on Instagram demonstrated that she still cared for him, and cared about maintaining the relationship, until at least mid-October 2022. 346 Counsel for the accused acknowledged that the text messages demonstrated that the accused and ZQ had a big fight on 20 October 2022. It was submitted that although ZQ did not attend a celebration for the accused’s 18th birthday she was with him, near the Casino, on 31 October, when they made a TikTok together.336 There was then contact between them via social media late on 6 November. ZQ had agreed in cross-examination that the accused had invited her over on 7 November to talk about repairing the relationship.337 347 Counsel for the accused submitted that as such, there was at least a reasonable possibility that ZQ had attended at the accused’s house on 7 November simply to discuss the state of what was clearly a tumultuous relationship.338 348 It was submitted that importantly, ZQ’s evidence about the ‘timeline’ of the relationship was simply not borne out by the evidence in the text messages and in 335 T 310.25-311.37. 336 T 306.34-307.3. Noting this is not an accurate description of the evidence. ZQ said she did not remember being with the accused at that time (T 173.20-37) and there was no evidence to support a finding that she was. It was however agreed that the accused was near the Adelaide Casino on that day, Exhibit P21 at [26.14]. 337 T 176.24-26. Noting again, this is an inaccurate description of the evidence. ZQ expressly denied that that on 6 November, she made arrangements with the accused to see him the next day to talk about their relationship; T 175.29-176.2. 338 T 307.22-29. -- 70 of 119 -- [2024] SADC 165 69 the audio and video files, which demonstrated her continued engagement with the accused, in what was an ongoing relationship. 349 Further, it was submitted that Mr Colella had only ever seen ZQ and the accused happy together and no sign of ZQ ever being at the Newton house against her will. He had seen them in the kitchen together preparing meals, being something ZQ denied. Most importantly, Mr Colella gave no evidence that at any time on 7 November 2022 he had gone to the accused’s bedroom door in response to hearing ZQ screaming, as claimed by ZQ. It was submitted that ZQ’s evidence to this effect was an outright falsehood.339 350 The Court was also reminded of the fact that in the first ZQ interview, ZQ had told Officer Perry that the accused took her phone and had threatened to throw it in the pool. Mr Colella said he retrieved ZQ’s glasses from the pool. ZQ agreed in cross-examination that her glasses were retrieved from the pool. It was submitted that by mentioning the phone to Officer Perry, and not the glasses, ZQ was simply embellishing her story about the threatened posting of the video.340 351 Further, there was no evidence from anyone that they had ever heard screams or other sounds of distress coming from the accused’s bedroom, being inconsistent with ZQ’s evidence that she would scream and cry and the accused would beat and slap her, during the occasions of forced sexual activity.341 There was similarly no evidence to support ZQ’s evidence as to the various acts of physical violence she attributed to the accused. The Video/The Threats 352 The Court was asked to carefully consider the video to determine if it could be correctly described as showing that the accused did, in fact, record ZQ without her consent. It was submitted that the very fact ZQ continued to undertake the activity, while knowing it was being filmed, vitiated against such a finding and that instead it was more accurate to describe ZQ as being coy about the fact of the filming. As such, it was submitted this evidence was not circumstantial evidence from which it could be inferred that the accused had the ability to coerce or control ZQ.342 353 It was submitted that there was a material inconsistency in ZQ’s evidence as to whether she had, or had not, seen what was on the video, which was an important part of ZQ’s narrative about how she came to be coerced to have sex with the accused after their break-up. 354 In addition, although there were some text messages, of a threatening nature, sent by the accused, none of those threatening messages made reference to any sex video. It was submitted there were several other ways the accused could threaten 339 T 313.7. 340 T 313.15-29. 341 T 313.30-314. 342 T 319.19-35. -- 71 of 119 -- [2024] SADC 165 70 to embarrass ZQ, by either posting photographs of her with other boys or of her self-harming. It would have been similarly embarrassing for the accused if the video was published, and ZQ must have known that, given how angry he was for her posting the photograph depicting him shirtless. His voice could be heard on the video and his bedroom was clearly visible. People knew he was in a relationship with ZQ. ZQ must have known that the accused was unlikely to carry through with any alleged threat. 355 Further, it was submitted that when the messages on 16 September were sent – being the first which included any threats to post - the relationship was still on foot, being inconsistent with ZQ’s evidence about the nature of the threats. These messages were also sent at a time when ZQ had been with another boy in Rundle Mall. 356 It was submitted that the only evidence that there were threats made to deploy the videos proximate to the date of the alleged offending, was ZQ’s evidence. There was nothing in the text messages or audio/video files to support that evidence. Further, the evidence that did exist, supported a finding that ZQ voluntarily sought out the accused’s company. 357 It was not enough for the court to find that the accused had threatened to publish the video(s) – rather the Court would need to be satisfied beyond reasonable doubt that ZQ acquiesced to have sexual intercourse with the accused on 7 November because of such a threat. Complaint Evidence 358 It was submitted that the circumstances of the complaint made to Ms Zhou were that it related to bullying, being taken advantage of and of being pressured to take the accused back. It was Ms Zhou who first raised with ZQ the issue of sexual assault and this was not something ZQ had volunteered to her. This impacted on what probative weight could be given to this evidence. 359 Further, the fact Ms Zhou observed ZQ to be quiet during the relevant period could have been attributable to many causes, including ZQ being generally dissatisfied with the state of the relationship. Motive(s) to Lie 360 The first alleged motive for ZQ to lie about the offending related to her having inflicted knife wounds on the accused on 9 November, the day before she reported the alleged offending. 361 Notwithstanding ZQ denied having caused the accused’s injuries, there could be no doubt that the accused did sustain injuries – as described by both Mr Colella and BQ. There had been no suggestion these were self-inflicted by the accused. There was evidence to support a finding that ZQ was with the accused on 9 November, despite her repeated denials. -- 72 of 119 -- [2024] SADC 165 71 362 ZQ admitted she had self-harmed because she was frustrated with the accused. As such, she must have had access to a knife. It was therefore at least reasonably possible that she threatened to again self-harm and did cut the accused with the knife on 9 November in response to her continuing frustration with him and the relationship.343 363 Further, the fact ZQ remained silent and did not respond with alarm to the accused’s text messages sent on 10 November wherein he outlined his injuries, was consistent with her having knowledge of their existence and the fact she had caused those injuries. 364 It was submitted that there was simply no basis for the prosecutor’s suggestion that the accused’s injuries were caused during the alleged offending.344 365 This was relevant not only to a potential motive for ZQ to lie about the offending, but if ZQ returned to see the accused on 9 November, this was inconsistent with the alleged offending having occurred two days earlier. 366 Another potential motive related to the accused having demanded ZQ give him money in return for the gifts he had bought her during the relationship. It was submitted that it was at least reasonably possible that the messages the accused sent to ZQ on 10 November about this were the bullying messages which she complained about to Ms Zhou (and showed Ms Zhou), noting Ms Zhou gave no evidence of having seen or been told about a threat made to publish the video(s). It was therefore reasonably possible that it was these messages that were the catalyst for ZQ to go to the police.345 Implied Admission 367 It was submitted that the accused’s message to Mr Colella, namely, ‘I just learned it’s illegal to have sex with someone under 17’ did not incriminate the accused with respect to either count. Rather, an available inference from the comment was simply that at some time, he had engaged in sex with ZQ when she was under 17. It was not illegal for the accused to have consensual sexual intercourse with ZQ when he was 17 and she was 16.346 DNA Evidence 368 It was submitted that the DNA evidence did not advance the prosecution case. 369 There was no evidence the DNA was obtained from ZQ’s vaginal fluid nor any evidence as to when the DNA had been deposited. The sheets were dirty and had not been washed for up to five weeks before the date they were seized 343 T 315.31-316.17. 344 T 316.26-34, however there was such a basis, namely ZQ’s evidence in the first ZQ interview that she scratched the accused on the arm with her long fingernails during the alleged offending. 345 T 317.21-318.13. 346 T 318.14-38. -- 73 of 119 -- [2024] SADC 165 72 (11 November), meaning that DNA could have been deposited well before 24 October. Summary 370 It was submitted that when the Court carefully scrutinised ZQ’s evidence, it simply could not be satisfied her evidence was either credible or reliable, such that it could not be satisfied beyond reasonable doubt as to the accused’s guilt with respect to either count. Assessment of Lay and Police Witnesses and associated Findings Officer Gracin’s Evidence 371 Officer Gracin’s evidence was essentially unchallenged. I have no reason to doubt the credibility or reliability of his evidence. I accept that evidence. Ms Zhou’s Evidence 372 Ms Zhou was a patently honest witness, who was very careful to ensure that the evidence she gave accurately outlined her recollection of events. 373 Ms Zhou’s role as a teacher included the pastoral care of international students from China, such as ZQ. As such, it may be anticipated that in that role, Ms Zhou has had cause to speak to other students about matters of personal concern to them, which may impact her ability to now accurately recall and differentiate between the details of her discussions with various students, over time. 374 However, Ms Zhou appeared to have a clear recollection of both ZQ and the details of her conversation with ZQ on 10 November 2022. She did not seek to refresh her memory from any notes made by her of that conversation. 375 I accept Ms Zhou’s evidence as being both credible and reliable. As such, I accept and prefer her evidence, to the evidence given by ZQ, insofar as there is any difference as to their recollection of the content (or timing) of their discussion on 10 November. 376 I accept Ms Zhou’s evidence that during Term 4 of 2022, she noticed a change in ZQ’s behaviour and demeanour. I accept her evidence that her concern was such that she spoke to ZQ after class on the Tuesday prior to ZQ speaking to her about the alleged offending. 377 I further accept Ms Zhou’s evidence that ZQ came to her, at lunchtime, on Thursday 10 November, during which she disclosed to her the fact that her ex- boyfriend (the accused) had been bullying her online and taking advantage of her. I accept Ms Zhou’s evidence that ZQ told her that she did not feel safe because of the accused’s behaviour towards her. -- 74 of 119 -- [2024] SADC 165 73 378 I accept Ms Zhou’s evidence that ZQ showed her some of ‘bullying’ messages the accused had sent her. 379 I reject the submission, made by counsel for the accused, that it is reasonably possible the messages that Ms Zhou saw were the messages sent by the accused to ZQ asking for her to refund him the money for the presents he had given her during the relationship. Those are the messages in Screenshot 1 of Exhibit P6. I am satisfied those messages were sent after the accused tried to unsuccessfully call ZQ at 16:50pm on 10 November, that is, after 4:50pm that day. As previously stated, I am satisfied and find that the time stamp on the top left corner of each screenshot in Exhibit P6 (14:50 and 14:51) reflects the time the photograph of the screen was taken, not the time the messages depicted on the screen were sent/received. 380 ZQ spoke to Ms Zhou during lunchtime on Thursday 10 November. This was well before these messages were sent. There were plenty of other messages containing derogatory words which were sent by the accused to ZQ prior to ZQ meeting with Ms Zhou on 10 November and therefore available for Ms Zhou to see. 381 I accept Ms Zhou’s evidence that she enquired of ZQ as to whether her relationship with the accused was a sexual one and that it was in response to that specific question, that ZQ disclosed to her she had engaged in both consensual sex and non-consensual sex with the accused and that non-consensual sex had occurred recently. 382 Ms Zhou recalled ZQ being particularly concerned about the accused waiting outside of her place of work in Chinatown at night, one or two nights earlier and of ZQ telling her that the accused had grabbed her by the arm to stop her from leaving. 383 As Ms Zhou is a Chinese teacher and assisted ZQ to communicate with other teachers, it unlikely that Ms Zhou misunderstood what ZQ told her about this, due to any language issue. Although it is possible that Ms Zhou is now mistaken in her recollection of that incident having occurred only one or two nights before the conversation on the Thursday, I consider this unlikely, particularly as Ms Zhou connected the bruises she saw on ZQ’s arms, with that incident. 384 I accept Ms Zhou’s account as to her recollection of her discussion with ZQ on Thursday 10 November as being both reliable and credible.347 Mr Colella’s Evidence 385 Mr Colella gave his evidence in a very straight forward and down to earth manner. 347 See further discussion below with respect to this evidence. -- 75 of 119 -- [2024] SADC 165 74 386 He made appropriate concessions when giving his evidence (for example, by emphasising the relatively limited opportunity he had to observe the accused and ZQ in each other’s company, and the fact that the distance between his bedroom and that of the accused impacted on his ability to hear what may have been going on in that room). In this respect, it was quite clear from Mr Colella’s evidence that he did not socialise with any of the international students he was hosting. 387 He said the accused, and the other students, generally spent most of their time in their rooms. When the accused was in his room with ZQ, the door would always be closed. 388 I accept Mr Colella’s evidence that he would engage with the accused (and ZQ) when the accused ventured into the kitchen or other common areas of the house. He would knock on the accused’s door to tell him dinner was ready and make what must have been fleeting observations at that time. 389 ZQ only visited the Newton house about once a twice per week, after school. Mr Colella did not get home from work until around 5:30-6:00pm. ZQ was required to be home by her 9:00pm curfew. There was no evidence that ZQ ever actually breached that curfew,348 meaning she routinely must have left the Newton house by around 8:00pm to get home to Hove via bus and train before 9:00pm. 390 As such, I am satisfied that Mr Colella’s actual personal interactions with ZQ at the Newton house were limited. As a result, his evidence that, in general, ZQ appeared to be happy and not at the house against her will, can be afforded very little, if any, weight. Further, on Mr Colella’s evidence, ZQ was certainly not happy, and distressed to the point she was screaming, on the evening of the alleged offending. 391 He made observations of ZQ and the accused near the pool, consistent with them having engaged in an argument and of ZQ being in distress, screaming. Indeed, he was required to retrieve her glasses from the pool, after they were thrown in the pool by the accused. I accept Mr Colella’s evidence as to those observations. 392 However, there is an aspect of Mr Colella’s evidence which causes me concern. 393 Officer Gracin gave his evidence immediately after Mr Colella. Officer Gracin gave unchallenged evidence that he had attended at the house at Newton on Thursday 10 November, looking for the accused, at which time he spoke to the homestay host, as the accused was not present. I accept that evidence. 348 See my previous discussion of the error in the transcript of the first ZQ interview (MFI P2) at line 238. -- 76 of 119 -- [2024] SADC 165 75 394 Although Officer Gracin did not say what time he attended at the Newton house, however it is likely, and I find, that it was before 9:57pm on Thursday 10 November. 395 Mr Colella gave evidence about the text messages he received from (and exchanged with) the accused late on the evening of Thursday 10 November from around 9:57pm. Specifically, he was asked to explain why it was that he had responded to the accused’s message, ‘I just learned it’s illegal to have sex with someone under 17’, by saying, ‘Don’t tell them’. Mr Colella paused for some time before answering this question. He said this was the first time he became aware that the accused and his girlfriend had had sex. He said ‘maybe’ he was referring to the police in that message. He acknowledged it was a silly response but that he was trying to process the information, for the first time, when he was half asleep. In other words, in hindsight, he would have responded differently, had he had more time to properly consider the situation as presented to him. 396 The impression given by Mr Colella’s evidence, was that he had no idea, before receiving these messages, that there was anything about the accused’s behaviour, or his relationship with his girlfriend, of any real cause for concern. Put another way, the messages had ‘come out of the blue’ to Mr Colella. 397 I was therefore extremely surprised to learn, from hearing Officer Gracin’s evidence, that when Mr Colella received these messages, he already knew that the police were looking for the accused. 398 When the accused told Mr Colella, in the messages, that he had been stabbed by his girlfriend, Mr Colella’s response was simply, ‘That’s no good hopefully I’m awake when you get home otherwise will see you in the morning’. This is a bizarre response from the adult charged with the responsibility of being the accused’s homestay host (irrespective of the fact the accused had recently turned 18 and was, himself, an adult). 399 Mr Colella said that he took the accused’s messages about having been stabbed ‘with a grain of salt’ as he had not observed any conflict between the couple, going to such an extreme. However, he had observed conflict between the couple, as recently as the Monday or Tuesday night, earlier that week. In addition, the police had been at his house that day looking for the accused. 400 Even if Mr Colella had no knowledge, prior to receiving these messages, as to why the police were looking for the accused, once he received the messages, he must have realised that the police were looking to speak to the accused about something involving his girlfriend. 401 Mr Colella’s off hand and seemingly unconcerned response, to hearing the news the accused had been stabbed, viewed in this context, simply does not make sense, absent some other explanation. Mr Colella was a prosecution witness. -- 77 of 119 -- [2024] SADC 165 76 That possible explanation was not elicited during his evidence-in-chief and was quite sensibly ignored during cross-examination. 402 Mr Colella’s evidence was not challenged, on an important issue, namely whether, as contended by ZQ, he had been outside of the accused’s bedroom door at the time of the alleged offending and made enquiries, from behind that closed door, as to what was going on in that room. Notwithstanding the concerns I have outlined above, I accept this evidence. I accept Mr Colella’s evidence that what he observed (and/or heard) as between the accused and ZQ on the date of the offending was confined to what he heard and observed from around the pool area. A’s Evidence 403 A’s evidence was extremely brief and effectively unchallenged. 404 I accept his evidence, which was of limited assistance, in any event, to the matters in issue. 405 A did not give any evidence of any observations he had made of the accused and ZQ together at a time proximate to the alleged offending. 406 A described having had limited interactions with the accused and ZQ in the ‘common’ areas of the house at Newton. If the accused’s bedroom door was shut, (noting Mr Colella’s evidence that the door was always closed) A had no ability to see what went on behind that closed door. As A’s bedroom was a significant distance from the accused’s bedroom, it is unlikely he would have been able to hear what was going on in the accused’s bedroom, particularly if his door was also closed (as Mr Colella said was the usual case with all of his students). BQ’s Evidence 407 BQ’s evidence was important as the defence case relied upon his evidence to establish that ZQ was with the accused on Wednesday 9 November 2022. This was relevant not only to ZQ’s credibility in general but to the specific alleged motive for her to lie, as she had caused injuries to the accused’s chest, stomach and arms when she stabbed him the day before making the complaint to Ms Zhou and the report to police. 408 BQ identified ZQ’s voice as being that of the female voice heard in the background of the recording made of the accused in Chinatown on 9 November 2022. 409 That recording was played to ZQ, who denied the female voice was her voice. She denied having seen the accused on Wednesday 9 November. 410 BQ gave evidence that he had spoken to ZQ on several occasions, outside the gym and that he had also heard her speaking at an e-bike store and during the phone call he had with the accused on 9 November. This evidence provided the foundation for him to then (purportedly) identify ZQ’s voice on the recording. -- 78 of 119 -- [2024] SADC 165 77 411 ZQ was not cross-examined as to whether she had met BQ. She was not cross-examined about whether she had spoken to him, at all, or specifically during a phone call made by the accused to BQ at about 7:30pm on Wednesday 9 November. However, given ZQ denied seeing the accused on 9 November, it must follow that she would have similarly denied being with the accused during an alleged phone call he made to BQ on that day (and therefore of having spoken to BQ during any such alleged phone call). 412 BQ did not go to school with ZQ. He knew her through friends who went to her school. Further, BQ gave evidence that he had never seen ZQ unhappy, when there was evidence she was unhappy to the point she had attempted self-harm. 413 I find that BQ had only limited interactions with ZQ. It follows that he had only a limited opportunity to hear (and remember) ZQ’s voice. 414 I have watched and listened to the various files tendered as part of Exhibit D22, one of which ZQ acknowledged was an audio file made by her. I have listened carefully to the recording depicting the accused in Chinatown on 9 November. I have listened to those files numerous times and to carefully compare the voice heard on each file. In addition, I have had the benefit of hearing ZQ give evidence over several days and of watching the recordings of the two prescribed interviews. 415 As the trier of fact, it is for me to determine whether the female voice that can be heard on the recording made of the accused in Chinatown on 9 November, is that of ZQ. The entire duration of that file is some eight seconds. The female voice can be heard for just less than two seconds. While it is possible it is ZQ’s voice, I simply cannot make that finding on balance. It could equally be the voice of any Mandarin speaking young female. Notwithstanding BQ claimed to be able to identify ZQ’s voice on that recording, given his limited interactions with her, some two years ago, and the brevity of the audio on that recording, I am unable to make a finding that the female voice heard on that file is ZQ’s voice. 416 BQ also gave evidence that he spoke to ZQ for about 20 to 30 seconds during a phone call made to him by the accused at about 7:30pm on 9 November. Although that evidence was not challenged, I have difficulty accepting, and do not accept, this evidence. 417 BQ described ZQ as sounding happy on the phone and said she even made a joke. This simply does not fit with the defence case as to ZQ’s alleged actions and demeanour on that evening – namely she was so distressed about the state of her relationship with the accused, which effectively ended that evening, that she threatened self-harm and then lashed out violently at the accused with a knife and stabbed him multiple times. 418 BQ also gave unchallenged evidence that he saw the accused later that night and that when they were together, he accidentally touched the accused’s arm and -- 79 of 119 -- [2024] SADC 165 78 the accused complained that it hurt. Again, notwithstanding this evidence was not challenged, after carefully considering the evidence, I cannot accept it. 419 The timeline of events as described by BQ does not sit well with the defence case as to what occurred on 9 November. On BQ’s version of events, he spoke to the accused at around 4 pm to ask if he was free to catch up that night, near BQ’s house in Myrtle Bank, to have a chat about his schoolwork. The accused called him back at about 7:30pm to get his address. He then met the accused, in a park, near his house in Myrtle Bank at around 9:00 or 10:00pm. 420 It was an agreed fact that Exhibit D22 contains a video file depicting the accused in Chinatown on 9 November 2022. 421 The recording does not include a time stamp and there was no evidence as to when the video was created. However, it is clearly dusk and just before sunset. Daylight saving commences in Adelaide at the start of October. From my own experience, I am satisfied the recording was made between about 7:00pm and 7:45pm on 9 November 2022. 422 The accused was clearly in the company of a female at that time. He is dressed up in his distinctive Burberry jacket. It is inherently unlikely that he dressed this way for the purposes of meeting BQ for a chat in a suburban park about his schoolwork. 423 The accused was in the city, a considerable distance from Myrtle Bank, at around 7:00pm to 7:45pm. To meet BQ in the park, he would have needed to travel from the city to Myrtle Bank and then find his way home to Newton. I know from my experience that there are limited public transport options between Myrtle Bank and Newton that run at night. Many (if not all) require the user to travel via the city. If BQ was imposing on the accused for his assistance, as claimed, a far easier option would have been for BQ to travel by bus to the city and meet the accused there, particularly as the accused was doing a favour for BQ. 424 It makes no sense for the accused to have met BQ in Myrtle Bank at around 9:00 to 10:00pm that night, particularly, if, as is the defence case, he had already been stabbed multiple times that evening by ZQ. 425 There is another aspect of BQ’s evidence which does not fit with the defence case. It was suggested to ZQ that she and the accused had arranged to meet on Wednesday 9 November to talk about their relationship and that the relationship effectively ended that night. If that is so, it is difficult to accept that the accused would have also agreed to meet up with BQ that night. He was already meeting ZQ. Further, even if he had initially planned to meet both ZQ and BQ, at different times that evening, it is implausible that he would have then fulfilled that prior agreement to meet BQ, if, in fact, he had been stabbed multiple times by ZQ in the hours before. -- 80 of 119 -- [2024] SADC 165 79 426 It is also extremely unlikely that if BQ accidentally knocked the accused’s wounded arm that night, as he claimed to have done, the accused would not have taken the opportunity then to show BQ his bandaged wounds and/or to explain to BQ what had happened that evening. 427 In these circumstances, I simply cannot accept BQ’s evidence as to his alleged interactions with either the accused or ZQ on Wednesday 9 November. In my view, BQ’s evidence was tailored to assist his friend, the accused. ZQ’s Evidence – Assessment/Findings General Observations 428 ZQ’s evidence is critical to the prosecution case and as such I must scrutinise her evidence with care.349 I must be satisfied that ZQ is both a credible and reliable witness and I must be satisfied beyond reasonable doubt that she is telling the truth about the alleged offending. 429 As previously stated, ZQ’s evidence-in-chief comprised that she gave in two prescribed interviews on 12 November 2022 and on 28 March 2023, together with further evidence-in-chief at trial. She was also cross-examined at trial. 430 ZQ was 16 when she gave each prescribed interview and 18 at the time of trial. Although she had some understanding of English, she required the assistance of a Mandarin speaking interpreter. At times, it is apparent that ZQ and the interpreter provided were having difficulty understanding each other. 431 There were portions of the first ZQ interview where, in my view, the answers given by ZQ were likely the result of a miscommunication between ZQ and the interpreter (or the interpreter and the interviewer). A relevant example is the evidence which ZQ gave during the first ZQ interview, when asked whether she would continue to have consensual sex with the accused, notwithstanding he was recording her.350 The evidence given by ZQ in response was that she would scream and the accused would put his hand over her mouth. She said this happened two to three times from mid-October to early November. 432 However, this evidence is at complete odds with what ZQ also said in the first interview, namely that the accused filmed her when they were having consensual sex during the relationship, that is, before they broke up. She said they broke up on 7 September. Further, when asked in that same interview if the accused had recorded them having non-consensual sex, she said that he may have done so once.351 433 When all of this evidence is considered, it seems likely that there was some misunderstanding between the interpreter and ZQ and what ZQ was describing in 349 Murray v R (2002) 211 CLR 193. 350 MFI P2 at lines 193 to 212. 351 MFI P2 at line 175. -- 81 of 119 -- [2024] SADC 165 80 this passage of the evidence was not her screaming when being recorded but screaming during the times she had forced sexual activity with the accused after they broke up because of his threats to release the recordings. 434 This evidence was also highlighted by defence counsel as an example of where there were significant internal inconsistencies in ZQ’s evidence. 435 Another example where language issues may have impacted the evidence, is the evidence ZQ gave in cross-examination when she agreed with a proposition that as at 28 September, ‘the relationship was back on foot’,352 being at odds with her other evidence as to the status of the relationship at that time. 436 In his closing address, the prosecutor identified language issues as providing a possible explanation for some of the inconsistencies identified in ZQ’s evidence. However, ZQ was not questioned during her evidence-in-chief at trial about whether any potential inconsistences or anomalies in the first and second ZQ interviews were because of language issues, nor was she re-examined to (possibly) explain any potential inconsistencies or anomalies which arose during cross- examination. 437 Indeed, ZQ was not re-examined at all. As a result, some inconsistencies and anomalies in ZQ’s evidence, which could have been the result of language issues, remain unexplained on the evidence. 438 Further, the Court is unaware whether ZQ was assisted by an interpreter when she spoke to Officer Glasson on 10 November 2022, or when she returned to speak to the police later that same day or when she attended the proofing on 7 August 2023 or when she subsequently spoke to Officer Gracin when he sought to obtain the contact details of her friends. There were potential inconsistencies (and omissions) identified arising from what was said on each of these occasions. 439 Throughout her evidence, ZQ was clearly reluctant to describe the occasions when she had engaged in sexual activity with the accused. During the second ZQ interview, in particular, there were often long delays between the question and answer given (albeit it is of note that ZQ answered most of the questions during that interview without the assistance of the interpreter, which could potentially explain some of the delay). 440 There was an approximate two-month delay during ZQ’s evidence at trial, immediately prior to cross-examination. When the trial resumed, ZQ was cross- examined over two days. On both days she presented as being extremely tired and, for the most part, disinterested in engaging in the process. She spoke very quietly, and mostly directed her responses to the interpreter, rather than the Court. 441 There were some occasions when ZQ did properly engage and/or displayed emotion. Relevantly, this included when ZQ was being cross-examined about 352 T 154.8-9. -- 82 of 119 -- [2024] SADC 165 81 allegedly cutting the accused with a knife on Wednesday 9 November 2022 (an allegation she vehemently denied) and when being challenged on her claim that the accused had threatened to release the video(s) if she did not continue to engage in sexual activity with him. In other words, on matters which went to the very heart of the allegations. 442 ZQ was also more focussed and engaged when she was presented with video files relevant to alleged contact she had with the accused, in person, after the alleged offending but prior to her report to police, being contact she denied. 443 It was certainly my impression that ZQ was frustrated by the process and by the focus on peripheral issues during cross-examination. That frustration may well be the product of many matters including cultural issues, language difficulties and an incomplete understanding of the court processes utilised. Nevertheless, she was, at times, seemingly, deliberately evasive in terms of her responses. 444 The combination of all of the above matters did impact, negatively, on ZQ’s overall presentation as a witness. Evidence Supporting ZQ’s Account The Video 445 The very fact the video exists and was retained by the accused on his mobile phone, supports ZQ’s credibility and reliability. 446 There was at least one video in existence depicting the accused and ZQ engaging in sexual activity and this video was on the accused’s phone when it was seized on 11 November. 447 Defence counsel submitted that the fact ZQ continued to engage in the sexual activity with the accused, notwithstanding she knew he was recording it, was inconsistent with her claim that she was being recorded without her consent. 448 I disagree with that submission. 449 ZQ gave evidence that she continued to engage in sexual activity with the accused, notwithstanding he was recording that activity without her consent, because their relationship was still on foot at that time and she wanted to make him happy. 450 The video depicts ZQ attempting to put her hand over the camera on numerous occasions. She was clearly trying to prevent the accused from filming her. They both communicated verbally in Mandarin at the time. What they said was not translated. After carefully considering the video, I disagree that what can be viewed therein is inconsistent with ZQ’s claims that she did not consent to be filmed at that time. -- 83 of 119 -- [2024] SADC 165 82 451 In my view the video is an item of circumstantial evidence from which it can be inferred that the accused had the ability to coerce or control ZQ. 452 The video needs to be considered in context. 453 The messages exchanged between ZQ and the accused demonstrate that the accused had the upper hand in the relationship (and its aftermath). He had the ability to control and did control ZQ’s actions, at times. An example is that when the accused responded angrily (and aggressively) to ZQ blocking him on social media, she immediately took steps to ‘unblock’ him, to placate him. Another example is ZQ’s profuse apology associated with her actions relating to the ‘shirtless photograph’ of the accused and her similarly profuse apology during the conversation where the accused demanded he visit her at his house. 454 Another is ZQ’s response to the aggressive messages the accused sent her demanding reimbursement for the presents he had given her during the relationship, namely, ‘I’ll have the things packed and return them to you’. These were gifts. She had every right to keep them. 455 A consistent theme from the messages is that of the accused making demands upon ZQ, with ZQ responding either in accordance with those demands, or in a way to placate him. 456 I am satisfied that the fact ZQ continued to engage in sexual activity with the accused, notwithstanding she knew the accused was filming her and she did not want to be filmed, is another example of his ability to control and/or coerce her. The Threats 457 The messages exchanged between ZQ and the accused in evidence demonstrate that the accused was threatening ZQ from at least 16 September.353 The issue for determination was, what was the nature of those threats? What did they relate to? Is it reasonably possible that the threats were of a different character to those described by ZQ, namely that the accused would publish/post the video(s) if she did not continue to have sex with him? 458 It was the defence case that the threats related to the accused threatening to post or send to others, a photograph of ZQ with another boy in Rundle Mall.354 ZQ denied this, albeit she agreed that she may have gone to Rundle Mall with another boy, who was a good friend of hers, the day before the threatening messages were sent on 16 September. 459 One of the messages sent by the accused to ZQ on that day stated: …What you did yesterday 353 Noting that none of the WeChat messages were in evidence. 354 There was no such photograph in evidence, nor was ZQ ever asked if, to her knowledge, such a photograph existed. -- 84 of 119 -- [2024] SADC 165 83 I haven’t forgiven you I didn’t do that 460 Later, that same day, other messages were exchanged namely: ZQ In the afternoon You threatened me Accused Shouldn’t I You didn’t come today. The thing you did on Thursday (my emphasis) 461 A proposition was put to ZQ that when the accused wrote ‘the thing you did on Thursday’ he was referring to her being in Rundle Mall with another boy. She said she did not know. 462 15 September was a Thursday. Although there was no evidence that ZQ did go to Rundle Mall with another boy on that specific day, having regard to ZQ’s evidence, I consider it likely and find that she did go to Rundle Mall with another boy on or about Thursday 15 September. 463 It is possible that the accused was upset about ZQ meeting up with another boy, and that this was a reason for some of the anger apparent throughout the messages he sent on 16 September. 464 I have carefully considered the threatening messages sent on 16 September, and the subsequent threatening messages, namely: • ‘I’ll make you famous in XXX High…You’ll see’ sent on 2 October. • ‘If you don’t come… you’ll be sorry’ – sent on 15 October in the context of the accused demanding ZQ visit him at the Newton house. 465 Having done so, I consider it is implausible that that the threats made by the accused, related to a threat to publish a photograph of ZQ with another boy in Rundle Mall. 466 If there was such a photograph in existence, it is fanciful to suggest that its publication would make ZQ famous at her (co-educational) high school. -- 85 of 119 -- [2024] SADC 165 84 467 Further, it is clear from the messages that ZQ was upset about the threats. It is inconceivable that ZQ would be upset or concerned about a threat to publish a photograph of her in Rundle Mall with another boy. 468 The context of the threatening messages is also inconsistent with such a conclusion. When ZQ reminded the accused that he had threatened her, the first thing he said in response was, ‘Shouldn’t I…You didn’t come today’. Particularly when considered in the context of the later messages sent on 15 October, this is consistent with ZQ’s claim that the threats related to her not going to the accused’s house to have sex with him. 469 Ancillary to this, it was suggested that what ZQ wrote immediately prior to the accused sending the ‘I’ll make you famous at XXX High…’ message, namely, ‘Shit…Took…Fuck…I follow a few from our school’ was a message sent by ZQ to the accused to make him jealous that she followed other boys at school on social media. ZQ disagreed with this. In my view, a far more plausible (and the likely) explanation for ZQ’s message, in the context of all of the evidence, was an expression of concern by ZQ that as she followed people from her school on social media, who were also friends or followers of the accused on social media, they would recognise her if the accused posted the video(s) on social media. 470 It was also suggested that the Court could not exclude as a reasonable possibility that the accused’s threat related to a threat to post the photograph of ZQ engaging in self-harm. 471 However, this simply does not fit with the other evidence on this topic. 472 The accused had already sent that photograph to C. In other words, at least one other person already knew of this issue. Further, the messages sent by the accused relevant to ZQ engaging in self-harm are some of very few messages where the accused demonstrated care and concern for ZQ. It does not make sense that the accused would then use the fact of ZQ having engaged in self-harm, to threaten her. 473 Counsel for the accused also submitted that the Court should reject ZQ’s claim that that the accused had threatened to publish the videos, because such publication would have resulted in equal embarrassment to the accused and ZQ knew this. 474 Fundamental to this submission were the propositions put to ZQ in cross- examination that the accused was upset with her for posting online an intimate photograph she had taken of him, without his shirt on. While ZQ agreed she had posted such a photo, she denied the accused was upset about posting the image. She maintained that he was upset about her subsequent post where she claimed that the accused’s roommate had sent her the image. 475 I refer to my discussion of this evidence at paragraphs 139 – 143 herein. It is clear that the accused was upset with ZQ. However, I am unable to determine, on -- 86 of 119 -- [2024] SADC 165 85 balance, whether that anger was about her posting the photograph or because of her later explanation. Indeed, the very fact the accused referred to that later explanation when explaining why he called ZQ a hypocrite, favours the latter. 476 I therefore disagree with defence counsel’s submission that ZQ knew the accused did not want others to know of the status of their sexual relationship, such that she must have known the accused would not publish the videos. I do not consider the evidence supports such a finding. 477 There is also evidence to the contrary. The accused, without prompting, raised the issue of his sexual activity with ZQ in his messages to Mr Colella on 10 November.355 478 The accused not only recorded ZQ having sex with him, but he retained the recording on his phone. There was therefore always the risk that someone would see the video, irrespective of whether he deliberately posted it online or sent it to others. If he was so concerned about someone knowing about his sexual relationship with ZQ, why film it for posterity? And if he simply filmed it for his own sexual gratification, why keep the recording after the relationship had imploded – which on the defence case was no later than 9 November. 479 Further, I accept ZQ’s evidence that she did not actually see the content of the video(s). I refer to my observations at paragraph 608 herein. 480 The footage exists. It makes no sense for ZQ to lie about whether she had seen it. 481 The accused was the one holding the phone/camera during the recording(s). ZQ could not have known if the accused was able to be seen in the footage (or heard). She could not have known if the accused’s bedroom was identifiable in the footage. 482 The quality of the video is such that it is, in any event, very difficult to make out personal features of the room in the background. The accused had only been living at the Newton house since June 2022, meaning it is unlikely his friends or acquaintances were familiar with his room as at September to November 2022. 483 Further, as is, unfortunately, a matter of common knowledge, a young female is far more likely to experience shame and derision from others for engaging in sexual activity, whereas a young man in similar circumstances is likely, for the most part, to be lauded and revered by his friends for doing so. 484 I reject the submission that ZQ’s claims with respect to the threats should be rejected on this basis. 355 See discussion below. -- 87 of 119 -- [2024] SADC 165 86 485 It was submitted that another reason to reject ZQ’s evidence as to the nature of the threats was that there was no evidence to support a finding that the accused had ever sent the video(s) to anyone. As such, when the accused said things like, ‘I’ve posted one’, he could not have been referring to the video. For the same reason it was submitted that the Court should reject the evidence ZQ gave in the second ZQ interview, that at the time of the alleged offending, she saw the accused send the video to his social account, and then delete it shortly thereafter. 486 ZQ did not give any evidence that she saw the accused send the video to another person. Rather she saw him send it to his social media account and quickly delete it thereafter, within a matter of seconds. 487 A fundamental component of the allegations was that the accused threatened to publish the video(s) to force ZQ to continue to have sex with him. Whether he did, in fact, ever publish the videos is irrelevant. ZQ knew he had the videos and therefore was in a position to carry out the threat. 488 The accused sent several messages which, if they refer to a threat to publish the video, suggest he has already published it. For example, ‘I’ll keep posting’ and ‘I’ve already one person sent off’. The absence of evidence to demonstrate that the video was ever published to others, does not mean that it cannot reasonably inferred from those messages, having regard to all of the evidence, that what the accused was threatening to do was to publish the video(s). The purpose of the threat (as claimed by ZQ) was to manipulate ZQ to continue to do what he wanted. It suited the accused to make ZQ think he had already sent the video to someone as this reiterated that he was willing (and able) to make good on his threat. 489 None of the threatening messages refer to the existence of a sex video. 490 However, the message sent on 2 October, namely ‘I’ll make you famous in XXX High…You’ll see’, in the context of all of the evidence, is particularly damning. 491 The messages are circumstantial evidence from which the Court is required to make inferences, having regard to all of the evidence, that it accepts. The evidence under consideration obviously includes the fact of the video and, importantly, ZQ’s evidence. I have taken the criticisms of ZQ’s evidence into account when carefully considering what is a reasonably possibly interpretation (or interpretations) of the threatening messages. 492 ZQ gave evidence that the only place she and the accused had sex was at his house at Newton. 493 The messages sent on 15 October contain numerous and persistent demands by the accused for ZQ to visit him at the Newton house. Further, the message the accused sent to ZQ on 16 September justifying his threats, ‘Shouldn’t I…You didn’t come today’ is consistent with the accused’s threats being connected to ZQ’s refusal to come to his house. -- 88 of 119 -- [2024] SADC 165 87 494 As such, a reasonable inference that can be drawn from the messages, in combination with the video and all of the evidence, is that the accused was threatening to post, on social media, or otherwise publish, a recording or recordings of ZQ engaging in sexual activity with him, unless ZQ attended at his house and engaged in sexual activity with him. 495 However, there is another reasonably possible interpretation available. 496 On 16 September, after ZQ and the accused exchanged the messages about being friends with their respective mothers on social media, the accused sent the following message:356 You reckon it helpful? I’ve already have one person sent off You did it first Unfriended me and blacklisted me for no reason 497 Notwithstanding some issues I have identified hereunder with aspects of ZQ’s evidence, I accept ZQ’s evidence and find that when the accused sent the message, ‘I’ve already have one person sent off’ what she thought he meant was that he had already sent the video to another person. I further find it is unlikely that he had done so, rather he was telling her he had, to emphasise that he was prepared to carry through the threat. 498 The further messages ‘You did it first’ and ‘Unfriended me and blacklisted me for no reason’, strongly suggest that the threats related to more than just a continuation of the couple’s sexual relationship. Similarly, the accused’s explanation sent much later that same day, ‘Shouldn’t I?...You didn’t come today… The thing you did on Thursday’ indicate that the threat is somehow related to ZQ behaving in any way which upset the accused. For example, blocking him on social media, seeing other boys, telling her friends bad things about him and refusing to come to his house to have sex with him. 499 As such, I am satisfied that another reasonable inference that can be drawn from the messages, in combination with the video and all of the evidence, is that the accused was threatening to post, on social media, or otherwise publish, a recording or recordings of ZQ engaging in sexual activity with him, unless ZQ did what he wanted her to do, which included attending at his house and have sex with him. 500 I am satisfied there is no other reasonably possible inference available from the messages, having regard to all of the evidence. 356 Exhibit P5 at p 3. -- 89 of 119 -- [2024] SADC 165 88 Ms Zhou’s Evidence as to ZQ’s Behaviour 501 Ms Zhou’s observation as to the change in ZQ’s behaviour from about the start of Term 4 is consistent with ZQ’s evidence that from about mid-October, she had forced sex with the accused in the context of the threats. Further, the fact that Ms Zhou saw fit to talk to ZQ about her concerns on the Tuesday, the day after the alleged offending, is consistent with ZQ being quiet and unproductive, on that particular day, given what had happened to her the night before. 502 However, another reasonably possible explanation for ZQ’s apparent change in behaviour was her unhappiness generally in her relationship with the accused. ZQ acknowledged that some time prior to 7 September, she sent the photograph of herself engaging in self-harm to the accused, because of that unhappiness. This was before ZQ claimed to have first had forced sex with the accused. The DNA Evidence 503 The DNA evidence is consistent with a finding that there had been recent sexual activity between the accused and ZQ in the accused’s bed. 504 However, it was an agreed fact that the sheets appeared dirty and unwashed. Mr Colella gave evidence that he was responsible for washing the accused’s bed linen and that he did so every three to five weeks. The DNA sample was collected on 11 November. The sheets may not have been washed since approximately 7 October. As such, the DNA evidence is also consistent with the accused and ZQ engaging in sexual activity prior to 7 November and prior to the accused turning 18 on 24 October 2022. 505 Mr Colella also gave evidence that on those occasions when he entered the accused’s bedroom, albeit briefly, when both the accused and ZQ were in there, he observed one of them sitting at the desk and one on the bed. As such, it is possible that ZQ’s DNA may have been deposited on those sheets simply by the act of her sitting on the accused’s bed sheet. 506 As such, while the DNA evidence is consistent with ZQ’s version, it does not otherwise amount to proof that the alleged offending occurred. Complaint Evidence 507 There are some aspects of the complaint evidence which lend support to ZQ’s account. 508 I accept Ms Zhou’s evidence that the conversation with ZQ occurred at lunchtime at school on Thursday 10 November, rather than after ZQ’s Chinese class and that during the conversation, ZQ showed her bruises on both of her arms. 509 I repeat my findings of fact as outlined at paragraphs 375 – 384 herein. 510 As such, I accept that Ms Zhou now recalls ZQ telling her in that conversation; that she was scared of her ex-boyfriend who had been stalking her -- 90 of 119 -- [2024] SADC 165 89 at her homestay house and outside of where she worked in Chinatown, that he had bullied her and taken advantage of her, that he had been nagging and bullying her online to pressure her to return to the relationship, he had grabbed her arm to try to stop her leaving one or two nights before in Chinatown, that she had initially engaged in consensual sex with him but then it was non-consensual (forced) sex and that the last time she had forced sex with her ex-boyfriend had occurred recently. 511 Defence counsel submitted that very limited probative weight could be given to that evidence as the content of the complaint was that ZQ was being bullied and taken advantage of by the accused. ZQ had only complained about having had non- consensual sex with the accused in response to a specific question by Ms Zhou. 512 In assessing this evidence, and the extent to which it may demonstrate a degree of consistency of conduct of ZQ, there are several relevant matters to consider. 513 The first is the timing of the complaint. This was relatively proximate to the alleged offending, being only three days thereafter. It was also two days after Ms Zhou had spoken to ZQ about her concerns regarding observed changes in ZQ’s behaviour, evident since the start of Term 4. 514 Another relevant consideration is to whom the complaint was made. ZQ never told her host mother about the accused or her relationship with him. She had no family in Adelaide. Ms Zhou was her trusted teacher, to whom she turned for support dealing with ‘home missing’ and who assisted her to communicate with other teachers at school. Ms Zhou is the very person one would expect ZQ to have complained to about the alleged offending. 515 Of course, ZQ could have complained to Ms Zhou earlier, including during the earlier conversation on the Tuesday. The fact she waited until the Thursday to complain feeds into the defence proposition that she complained then, and lied about the alleged offending then, because of what had happened the night before on Wednesday 9 November. 516 However, it is important to remember that ZQ was only 16. She was separated from her family, living in a foreign country, with limited command of English. She had been in Australia for less than a year. She was clearly struggling with her mental health, as evidenced by her earlier attempts at self-harm. 517 The messages demonstrate that ZQ was in a toxic relationship with the accused, who was bullying her and threatening her online and was persistent in his demands of her to visit him at her home. 518 On ZQ’s evidence, she was continuing to do what the accused wanted her to do out of fear he would publish the videos to her friends – something particularly -- 91 of 119 -- [2024] SADC 165 90 traumatic for a teenage girl to deal with.357 Even if the threat was simply one to release the video(s) (without more), this would have been extremely stressful for ZQ. Further, it was abundantly clear from all of ZQ’s evidence that she was very reluctant to talk about sexual activities with anyone. 519 Having regard to these circumstances, it is readily understandable why ZQ did not make the complaint earlier, or specifically during the conversation she had with Ms Zhou on the Tuesday. I am satisfied this was a very difficult conversation for her to have. The conversation on the Tuesday was initiated by Ms Zhou because she was concerned that ZQ was quiet and distracted. I am satisfied that the very fact of that conversation prompted ZQ to make the complaint to Ms Zhou two days later on the Thursday. From the Tuesday conversation, she knew Ms Zhou was someone concerned for her welfare. She was an adult in a position of authority who could offer her guidance as to what to do about the situation she found herself in. 520 For reasons I will outline further below, I reject the submission that the complaint was made on the Thursday as the allegations were concocted by ZQ in response to her having stabbed the accused on the Wednesday night. 521 As such, I am satisfied that both the timing of the complaint and the person to whom the complaint was made, demonstrate consistency of conduct on the part of ZQ. 522 As to the content of the complaint, ZQ had a limited memory of what she told Ms Zhou during that conversation. 523 She thought the exact words she had said to Ms Zhou, was that the accused had tried to threaten and force her. She could not recall anything more about what she told Ms Zhou. She did not recall showing Ms Zhou any injuries. 524 Ms Zhou’s recollection of aspects of that conversation is somewhat different. 525 Although there were some differences in the content of the complaint, insofar as its details were recalled by Ms Zhou and the circumstances of alleged offending as described by ZQ, there were also some components which were consistent. 526 Importantly, Ms Zhou recalled ZQ telling her that initially she had consensual sex with the accused, but that recently she had been forced to have sex with him, being consistent with what ZQ maintained throughout her evidence. 527 Ms Zhou recalled ZQ telling her that she was scared of the accused who had been taking advantage of her and bullying her.358 Ms Zhou did not give evidence as to if and how ZQ had described the accused was ‘taking advantage of her’. She 357 I will outline my findings as to this aspect of the evidence later in these Reasons. 358 Being Ms Zhou’s translation of the words spoken in Mandarin by ZQ. -- 92 of 119 -- [2024] SADC 165 91 did not describe ZQ telling her anything about any threats involving publication of the videos. 528 However, the phrase she recalled ZQ using, ‘taking advantage of’, is consistent with ZQ’s evidence that the accused was taking advantage of the fact that ZQ knew he had the video(s) and could publish them, if she did not do what he wanted. The word ‘bullying’ is also consistent with ZQ’s description of the accused’s behaviour towards her. 529 I will outline in further detail below, those aspects of the complaint evidence which detract from, rather than support, the credibility and reliability of ZQ’s account. The Implied Admission 530 The prosecution case is that in his messages to Mr Colella, sent on 10 November 2022, the accused admitted that he had recently had unlawful sexual intercourse with ZQ. The defence case is that the messages contain no such admission, rather they can reasonably be interpreted as an acknowledgement by the accused that at some stage, he had engaged in sexual intercourse with ZQ. 531 The relevant messages commenced with the accused telling Mr Colella that ZQ had stabbed him on the previous night, that is, Wednesday 9 November. These messages followed:359 Accused Can I call the police? But she’s 16 (sent at 11.10 pm) I just learned it’s illegal to have sex with someone under 17 (sent at 11.11 pm) Mr Colella Don’t tell them Accused But what if the police ask? And what if my girlfriend tells them on purpose (sent 11.12 pm) Mr Colella 359 Exhibit P18 pp 4-5. -- 93 of 119 -- [2024] SADC 165 92 I wouldn’t worry it’s got nothing to do with what has happened (sent 11.15 pm) Accused But I was afraid she’d get back at me, and then she called the police about the sex (sent 11.17 pm) … 532 These messages were sent by the accused to Mr Colella at a time when the accused knew ZQ had been to the police, having regard to the messages exchanged between him and ZQ earlier that day.360 533 As the trier of fact, I must determine whether an admission was made by the accused and if so, what was the subject matter of the admission. This involves a consideration of other reasonably possible explanations for what was said by the accused. I must also determine whether the admission was true, in whole or in part.361 534 ZQ was aged 16 when the accused first met her and therefore when they engaged in consensual sex, during their relationship. The accused was aged 17 during the relationship and only turned 18 on 24 October 2022. 535 It was not illegal for the accused to have consensual sexual intercourse with ZQ when he was aged 17. It was illegal for the accused to engage in sexual intercourse on or after 24 October 2022. 536 I am satisfied these messages contain admissions made by the accused and that those admissions were true. 537 The first such admission is that the accused knew ZQ was aged 16. 538 I am also satisfied, that by these messages, the accused admitted to having engaged in sex with ZQ. The accused was clearly concerned about ZQ telling the police ‘about the sex’. The clear inference from these messages is that the concern expressed by the accused related to the fact that he had engaged in sex with ZQ when she was under 17. 539 A reasonably possible inference from these messages is that the accused’s concern was relevant to him having had illegal sex with ZQ when she was 16, that is, sex when she was 16 and he was 18. However, there is another reasonably possible explanation, namely that the accused thought it was simply illegal to have 360 Exhibit P6. 361 R v MMJ [2006] VSCA 226 at [70]-[92] per Ashley JA. -- 94 of 119 -- [2024] SADC 165 93 sex with someone under 17, irrespective of his age and that he was concerned about ever having engaged in sexual intercourse with ZQ. 540 In these circumstances, I am not satisfied the messages constitute an implied admission that the accused had sexual intercourse with ZQ when he was 18, either on the day of the alleged offending, or at all. Motive(s) to Lie 541 There was evidence led to suggest a specific motive (or motives) for ZQ to lie about the offending. 542 The first alleged motive to lie related to the accused’s allegation, made in his communications with Mr Colella on 10 November 2022, that ZQ had stabbed him multiple times with a pink knife on Wednesday 9 November. The substance of the submission made was that ZQ had concocted the allegations to deflect attention away from her own criminal conduct towards the accused. 543 I have already made several observations and findings about the evidence given by BQ which was led in support of this hypothesis. 544 I do not accept BQ’s evidence that he spoke to ZQ during an alleged phone call he had with the accused at around 7:30pm on Wednesday 9 November. 545 Notwithstanding BQ purported to identify the female voice heard on the video taken of the accused in Chinatown on 9 November, I am unable to make a finding, on balance, that the voice is that of ZQ. ZQ denied it was her voice. 546 I accept Mr Colella’s evidence that he did observe various injuries on the accused on Friday 11 November, being after ZQ reported the offending to police. In Mr Colella’s words, these wounds were to the accused’s stomach and arm, and were ‘deep grazed cut bloodied-type’ wounds which were bandaged.362 547 As such, I find the accused did have wounds of this type on his body on Friday 11 November. 548 BQ gave evidence he observed wounds on the accused’s body on Thursday 10 November, the day ZQ reported the offending to police. He said he saw the accused in Chinatown. He described the wounds as being ‘cutting on his arms starting to scar’ and described seeing cutting on the accused’s chest and stomach.363 549 I have already expressed concerns as to BQ’s credibility. If he did see the accused’s wounds on 10 November, this must have been after the school day had finished and most likely in the early evening. 362 T 236.24-36. 363 T 264.24-33. -- 95 of 119 -- [2024] SADC 165 94 550 ZQ gave unchallenged evidence that she attended at the police station to report the offending at around 3:00pm on Thursday 10 November. Ms Zhou gave evidence that ZQ told her at lunchtime that day that she had recently been forced to have sex with the accused at that time. 551 Further, although there is no evidence as to precisely what time ZQ attended the police station on the second occasion on 10 November, there was no dispute that it was later that same afternoon and that she told the police she had been forced to have sex with the accused ‘Monday week ago’. I am satisfied from ZQ’s evidence that what she meant by this was, Monday of that same week, not the previous Monday. 552 Further, I am satisfied that the accused sent ZQ a message on 10 November after 4:50pm (being the time of the missed call as evident from Screenshot 1 of Exhibit P6) but prior to 4:56pm (being the time of the audio call as evident from Screenshot 3 of Exhibit P6) stating ‘You really went to the police station?’, to which ZQ replied, ‘I really did…Both the interview and the statement were done’. These responses were sent immediately before the audio call made at 4:56pm. 553 ZQ gave evidence she did not know how the accused became aware she had been to the police station that day. Although there was no specific evidence on that topic, it is certainly likely, and I find, that the accused became aware of this from Officer Gracin’s visit on that day to the house at Newton. 554 From ZQ’s response, namely ‘both the interview and statement were done’, I am satisfied this means the second attendance at the station was before 4:56pm that day. 555 I accept ZQ’s evidence that she received the messages in Exhibit P6 after she attended at the police station. 556 I find that she reported the offending both to Ms Zhou and the police before she received the messages from the accused in Exhibit P6. 557 If BQ saw the accused’s wounds on Thursday 10 November, he only saw them after the accused was already aware that ZQ had been to the police station. There was therefore no evidence from any witness that they saw the accused’s wounds before either ZQ reported the offending and/or the accused became aware that she had reported the offending. 558 If ZQ received the wounds when he was stabbed by ZQ on the Wednesday afternoon/evening, it simply makes no sense that he would wait until Thursday 10 November at around 9:57pm to tell Mr Colella about this. 559 Further, if the accused was stabbed multiple times by ZQ on the Wednesday, notwithstanding he claimed to have bandaged the wounds thereafter, it is implausible he would then put on his smart Burberry plaid jacket (and wear what was a predominantly white outfit), get on the bus and go into town with ZQ. It -- 96 of 119 -- [2024] SADC 165 95 makes even less sense that ZQ would happily record him walking down the street in Chinatown shortly thereafter. 560 Mr Colella did not see ZQ at the Newton house after 7 November. There was no evidence from anyone that they saw ZQ at the Newton house after 7 November. ZQ denied she attended the Newton house on 9 November. 561 I reject as simply fanciful the allegation that ZQ stabbed the accused multiple times on Wednesday 9 November. 562 How then did the accused receive the wounds? 563 It was submitted that there was no suggestion by the prosecution that the accused’s wounds were self-inflicted. However, the accused did not give evidence and as such there was not the opportunity for such a proposition to be put to him by way of cross-examination.364 564 BQ’s evidence that the accused told him that ZQ inflicted the wounds is hearsay. 565 I acknowledge that at some time ZQ must have had access to a knife to cause herself harm. I am further mindful that Ms Zhou’s evidence was that ZQ told her that she was scared because the accused had been waiting for her, after she finished work, outside of the restaurant where she worked in Chinatown. She believed ZQ told her that the accused had grabbed her arm to try to stop her from leaving, one or two nights before their discussion on the Thursday. She thought this had occurred in Chinatown. She also recalled that ZQ often worked late, finishing around 9:00 or 10:00pm. 566 Ms Zhou’s evidence is consistent with ZQ and the accused being together at some point in time, earlier that week, in Chinatown. However, her evidence was that ZQ was particularly scared about the accused stalking her this way. This simply does not fit, as to timing, with BQ’s evidence of the alleged phone call with the accused and ZQ at around 7:30pm on Wednesday 9 November, and that ZQ apparently sounded happy and was making a joke at that time. Nor does it fit with ZQ being the girl whose voice can be heard in the video made that evening around dusk in Chinatown and who was happy to both walk with and record the accused, using his phone, while engaging in light-hearted banter with him. 567 While Ms Zhou’s evidence is important generally in my consideration as to the credibility and reliability of ZQ’s evidence as to the alleged offending, in my view it does not support a finding that ZQ stabbed the accused multiple times, at the Newton house, sometime on the late afternoon/early evening of Wednesday 9 November. 364 Noting of course it is not for the accused to prove or disprove anything. -- 97 of 119 -- [2024] SADC 165 96 568 When ZQ was being cross-examined about allegedly stabbing the accused multiple times on Wednesday 9 November, ZQ denied ever causing any cuttings to the accused’s body or any harm.365 569 As previously stated, during the first ZQ interview, ZQ said that she had long fingernails at the time of the alleged offending and that she scratched his arm with her nails at that time. 570 Towards the end of the second ZQ interview, the following exchange occurred:366 Q …when…you said there…were more than one time that he forced you to have sexual activity um did he ever have any injuries on his body? A [Chinese] Q No? Okay… 571 Having regard to how the questioning unfolded in the second ZQ interview and the specific words used in that question, I am satisfied that ZQ interpreted this question to mean, did the accused ever have any injuries on his body after he had forced her to have sexual activity on any other of the other times, that is, other than the last time. 572 The copy of the photograph the accused sent to Mr Colella at 9:57pm on Thursday 10 November, depicting injuries to his arm, is not of particularly good quality. However, it is possible the injury was caused by ZQ when she scratched the accused’s arm with her long fingernails when she was trying to get them her neck during the alleged rape on Monday 7 November. Further, given what ZQ described in terms of that occasion of forced sexual intercourse, it is possible that the other injuries observed by Mr Colella were caused at the same time, during that activity. 573 Alternatively, the injuries could have many other potential causes, including that they were self-inflicted. 574 It was submitted that ZQ’s failure to respond to the messages sent to her by the accused on 10 November wherein he referred to his injuries and going to the hospital, constituted some sort of admission by silence, in the sense that it was consistent with her knowing the accused had these injuries and that she had caused them. I reject that submission. 575 As previously stated, I am satisfied that ZQ had already been to the police and reported the offending by the time she got the messages in Exhibit P6. Her only contribution to that series of messages was her stating she would pack up the 365 T 198.34-199.4. 366 MFI P4 at lines 1585-1591. -- 98 of 119 -- [2024] SADC 165 97 gifts the accused had sent her and return them to him and her confirmation that she had been to the police station and done both the interview and statement. 576 ZQ did not otherwise engage with the accused during that message exchange, notwithstanding the volume of messages the accused sent to her that afternoon. This is consistent with ZQ seeking to sever all ties with the accused – given the steps she had taken on Thursday 10 November to stop the accused from threatening and harassing her. There was simply no purpose to be gained in her responding to the accused’s messages. 577 It is also of note that ZQ was not cross-examined as to why she did not respond to those messages. 578 By way of final observation, I agree with the prosecution submission that if ZQ lied about the alleged offending to deflect blame away from her arising from her purported conduct, there was simply no need for her to persist with the allegations beyond the initial report. The simple act of reporting the allegations would have achieved the stated purpose, that is, to deflect the blame away from her onto the accused. 579 I reject the first alleged motive to lie. 580 The second alleged motive to lie related to the accused’s demands for ZQ to refund him the money he had spent on gifts for her during the relationship. It was suggested that ZQ had felt bullied by the accused’s requests and that it was these messages which were the catalyst for her to go to the police. 581 The relevant messages are in Screenshot 1 of Exhibit P6. There was no evidence of any other earlier similar messages, nor any evidence of any earlier similar request being made by the accused. 582 As previously stated, I find that the messages in Exhibit P6 were received by ZQ after she reported the offending to the police and well after she spoke to Ms Zhou on Thursday 10 November. I find that the bullying messages that Ms Zhou saw during her conversation with ZQ at lunchtime on Thursday 10 November were not the messages in Exhibit P6. 583 I reject the second alleged motive to lie. 584 However, the fact that I have rejected there being a motive for ZQ to lie does not strengthen the prosecution case, nor does it mean ZQ must necessarily be telling the truth. People can lie for many and varied reasons, none of which may be readily apparent from all of the circumstances.367 367 Noting that although not expressly relied upon by the defence, another potential motive could have been jealousy and/or revenge in the context of a failed relationship. -- 99 of 119 -- [2024] SADC 165 98 585 I must carefully consider whether I can be satisfied beyond reasonable doubt that ZQ is telling the truth. Potential Reasons to Doubt the Credibility and Reliability of ZQ’s Account Preparedness to Lie 586 ZQ’s admitted that she was prepared to lie to her host mother in order to see the accused. I am satisfied from the evidence that ZQ and the accused did discuss using another person to provide an excuse for ZQ to attend a party and stay overnight at the accused’s house. There was, however, no evidence that ZQ had, in fact lied to her host mother (or to anyone else). 587 ZQ was 16 years old and involved in a sexual relationship with her then boyfriend. Many teenagers in similar circumstances lie to their parents or guardians about their activities and whereabouts. Indeed, it is a matter of common experience that most teenagers, at some stage in their teenage years, lie to their parents or guardians, for them to undertake activities which may otherwise be disallowed (or frowned upon) by their parents/guardians. 588 Even if ZQ lied to her host mother about seeing the accused, that of itself, would not otherwise impact negatively on my overall assessment of the credibility and reliability of her account of the alleged offending. Internal Inconsistencies in ZQ’s Evidence 589 As outlined earlier in these Reasons, there were several apparent inconsistencies in the evidence given by ZQ highlighted by defence counsel. 590 I have previously addressed those parts of the evidence which, in my view, were not correctly stated and/or did not, in fact amount to an inconsistency (or omission). I will address the remaining aspects of the evidence as identified, in turn. In doing so, I have not considered the inconsistencies in isolation but in combination with the various other matters raised by defence as going to the assessment of ZQ’s credibility and reliability. 591 In the first ZQ interview, ZQ said her relationship with the accused ended on a specific date, namely 7 September 2022,368 whereas in the second ZQ interview, she said the relationship ended at ‘end of September, nearly October’.369 Further, in cross-examination, ZQ disagreed with a proposition that they had not broken- up as at 12 September (from which it must be inferred that ZQ claimed they had already broken up as at that date).370 592 On 8 September, ZQ sent the accused an Instagram message, ‘Nothing more to say about the two of us…WeChat is blocked’. This was around the time that ZQ 368 MFI P2 at line 36. 369 MFI P4 at line 164. 370 T 126.20-35. -- 100 of 119 -- [2024] SADC 165 99 had sent the accused the photograph of her self-harming. On 12 September, ZQ contacted the accused, upset that he had told C about her self-harming. 593 I am satisfied therefore that on or about 7 September the accused and ZQ had at least discussed breaking-up, with ZQ’s message sent on 8 September ‘Nothing more to say about the two of us’ being indicative of her seeking to terminate the relationship. 594 This explains why ZQ may have specified 7 September as the date of the break-up during the first ZQ interview. 595 However, thereafter ZQ continued to see the accused and communicate with him online. The very fact the two continued to see each other and communicate demonstrates that they maintained a relationship ‘of sorts’ even if it was not a typical boyfriend/girlfriend relationship, after 7 September. 596 Further, when she gave the second ZQ interview, ZQ was clearly under the impression that she had reported the offending to the police at the end of November.371 This is simply an error on her part as there is no dispute she reported the offending to police on 10 November. It may well be that this error then infected the ‘timeline’ of events as outlined by ZQ in that second interview, insofar as she was describing events before then and may well have been using that erroneous date as the ‘anchor’ to recall other relevant dates.. 597 In addition, during the second ZQ interview, ZQ said she had to tell the accused multiple times that they had broken up, before he accepted it. This is therefore consistent with the first such time being on 7 September and the other multiple times occurring in the weeks thereafter. 598 As such, there are several reasonable explanations for why there was this apparent inconsistency in ZQ’s evidence as to precisely when they broke up. 599 This inconsistency does not impact on my assessment of the credibility and reliability of ZQ’s account of the alleged offending. 600 I am mindful that in cross-examination, ZQ gave the following evidence:372 Q. Do you agree that as at 28 September that you had made up from your earlier fight on 16 September. INTERPRETER: Sorry, Mrs Powell, do you say 'make up'? MRS POWELL: Yes, I'll perhaps use a different expression. XXN 371 MFI P4 at line 225. 372 T 153.37-154.10. -- 101 of 119 -- [2024] SADC 165 100 Q. The relationship had been repaired since the earlier argument on 16 September. A. I can't remember. I can't remember clearly. Q. I suggest that at that time, 28 September, that the relationship was back on foot. A. Yes. 601 ZQ’s response, when she agreed the relationship was ‘back on foot’ is seemingly inconsistent with her evidence given, at trial, that they had officially broken up by 12 September. ZQ gave no other evidence to the effect the relationship was ‘back on foot’, in the sense that the couple were happy and in a boyfriend/girlfriend relationship, as at the end of September. 602 The interpreter clearly had difficulty translating the concept ‘make up’. The fact this evidence is at odds with all of the other evidence given by ZQ at trial, strongly suggests that the interpreter had similar difficulty translating what was meant by defence counsel when she used the words ‘repaired’ and/or ‘back on foot’ in the context of the relationship. One can readily see why those concepts would be difficult to interpret without some meaning being lost in translation. Notwithstanding ZQ was not re-examined to confirm if any potential misunderstanding may have led to this apparent inconsistency, from my own observation of that evidence, I consider it likely there was some misunderstanding and therefore have placed minimal weight on this evidence. 603 ZQ gave evidence that she initiated the break-up, essentially as she and the accused were incompatible. However, in the second ZQ interview, she said she ended the relationship over WeChat. At trial, she said she told the accused, ‘face to face’. 604 It is likely, and I find, that this inconsistency reflects the fact that this was a topic discussed multiple times by ZQ and the accused, both online and in person. 605 This inconsistency does not impact on my assessment of the credibility and reliability of ZQ’s account of the alleged offending. 606 In the first ZQ interview, ZQ said that she thought the first act of forced (non- consensual) sexual intercourse occurred within a week after they broke up.373 In the second ZQ interview, she said it occurred two weeks after the break-up.374 ZQ explained this inconsistency on the period of time which had lapsed between the first and second interviews. I accept that explanation, given the very minor difference in the evidence given on the two occasions. This minor inconsistency does not impact on my assessment of the credibility and reliability of ZQ’s account of the alleged offending. 373 MFI P2 at line 121. 374 MFI P4 at line 1233. -- 102 of 119 -- [2024] SADC 165 101 607 In the first ZQ interview, ZQ said that on the first occasion she had forced sex with the accused, he showed her the video. In the second ZQ interview and at trial, ZQ maintained that she had never actually seen what was on the video. 608 ZQ’s evidence was that the accused used his phone to record them having sex. The fact that ZQ was quite adamant that she had not actually seen what was on the recording, is not necessarily inconsistent with the accused showing her his phone, opened to a file on that phone, while simultaneously telling her that he had the video(s) and could publish them. She knew he had recorded them having sex. ZQ could have been ‘shown’ the recording, without ever actually watching what was on it. 609 Insofar as there is any inconsistency in this evidence, it does not impact on my assessment of the credibility and reliability of ZQ’s account of the alleged offending. 610 During the second ZQ interview, when describing what occurred during the alleged offending, ZQ said the accused threatened to give the video to her friends. She said she tried to grab his phone from his hand, he sent the video to his social account but then deleted it two to three minutes later.375 These details were not included in the first ZQ interview, although she did say the accused had threatened her at that time. 611 The purpose of the second ZQ interview was to provide more detail in terms of ZQ’s recollection of the offending. It is not surprising therefore, that additional detail of this type was included in that interview. Further, when ZQ gave the first ZQ interview, she was only 16, she was separated from her family and being asked questions in a foreign language. She was talking about extremely sensitive and personal matters. She had already told Officer Perry that she had engaged in forced sexual activity with the accused because he threatened to publish the video, prior to giving the details of the occasion of the alleged offending. 612 Her failure to go into this detail, at the time of the first ZQ interview, does not impact on my assessment of the credibility and reliability of ZQ’s account of the alleged offending. 613 It was submitted there was an inconsistency in the evidence given by ZQ as to whether the accused had ejaculated during the alleged offending. It was submitted that during the first ZQ interview, ZQ had said she was not sure if the accused had ejaculated376 but in the second ZQ interview, she had said he did not ejaculate.377 375 MFI P4 at lines 451-566. 376 MFI P2 at lines 520-523. 377 MFI P4 at line 999. -- 103 of 119 -- [2024] SADC 165 102 614 I am satisfied that during both interviews ZQ understood what was meant by the word ejaculation insofar as it was interpreted to her. 615 However, whether there is this alleged inconsistency in the evidence is not so straight forward. The way in which ZQ was questioned on this topic in the first interview was fraught having regard to the fact she was using an interpreter and at times ZQ and the interpreter appeared to have difficulty understanding each other. 616 The relevant portion of the first ZQ interview is as follows: PERRY The previous Monday, but did he ejaculate inside of you. LIU (Translating the questions) QU (Answering the question) LIU I’m not sure he he PERRY Ok do you know if he ejaculated outside of you LIU (Translating the questions) PERRY So you’re just not sure whether he ejaculated or not ok no worries. Um alright so just to go over a little bit to recap so you um started a relationship with Hugo on the fifteenth of July (15/07) LIU (Translating the questions) QU (Answering the question) LIU Yes 617 What is not apparent from the transcript but is evident on the actual recording is that ZQ shook her head during the interpretation of the question ‘do you know if he ejaculated outside of you.’ 618 When watching that portion of the interview, my immediate impression was that what ZQ was conveying was that the accused had not ejaculated outside of her, rather than her intending to convey that she did not know if he did, or did not. 619 I am mindful that ZQ appeared to nod her head when Officer Perry said, ‘So you’re just not sure…’. However, it is possible that was not interpreted to ZQ, given that her answer ‘yes’ at line 526, appears to be a response only to the second part of the question at line 523, namely that the relationship started in mid-July. 620 After carefully considering this evidence, I am not satisfied that it demonstrates any real inconsistency. However, insofar as it did, on ZQ’s account, there were multiple occasions of forced sexual activity. If that account is accurate, it explains why ZQ may, over time, become confused as to the details of each separate occasion. -- 104 of 119 -- [2024] SADC 165 103 621 A further purported inconsistency related to ZQ’s evidence as to which arm was bruised in the alleged offending. ZQ told Officer Glasson on 10 November 2022 that she sustained bruising to her right arm, above the elbow, whereas she said in the second ZQ interview that the bruising was to her left arm. 622 However, Ms Zhou observed bruises to both of ZQ’s arms on 10 November. This, of itself, may explain this apparent inconsistency. As ZQ had bruises on both of her arms as at that time, it is not unexpected that her evidence, over time, may contain this difference as to which of those bruises was in fact caused during the alleged offending. 623 None of the above-mentioned evidence negatively impacts on my overall assessment of ZQ’s credibility and reliability. 624 However, there were other internal inconsistencies in ZQ’s evidence which do give me cause to doubt her reliability and credibility generally. 625 In the first ZQ interview, ZQ described the accused as recording them engaging in consensual sexual activity during their relationship, in other words, before the break-up. When she was asked if the accused had ever recorded her when they had sex without her consent, she said, ‘He may have done so, he may have done so once’.378 However, later in the first ZQ interview, ZQ gave evidence that when the accused was recording her, she wanted to scream and the accused put his hand over her mouth. She said this occurred between mid-October to the end of October. 626 On a strict interpretation of this evidence, it demonstrates significant internal inconsistencies in ZQ’s evidence, as in the same interview she said the accused made the recordings before the break-up, that is, before 7 September. The video depicts ZQ continuing to engage in fellatio with the accused while he records them (and not screaming). 627 As previously stated, it is certainly possible that this evidence arose out of a misunderstanding between the interpreter and ZQ. It is possible that what ZQ was describing was not her screaming when being recorded but screaming during the times she had forced sexual activity with the accused, after the break-up, because of the threats he had made to publish the recordings. This fits with ZQ’s description of this having occurred from mid-October to the end of October. Such an interpretation is also consistent with what ZQ said later in the first ZQ interview. That is, when Officer Perry asked ZQ if the accused had strangled her on any occasion, other than at the time of the alleged offending, she said he had done it two other times, during mid-October, early November, at his place.379 It is also 378 MFI P2 at line 175. 379 MFI P2 at lines 445-448. -- 105 of 119 -- [2024] SADC 165 104 consistent with ZQ’s evidence that she was uncertain if the accused had ever recorded her when they had non-consensual sexual activity.380 628 However, the prosecutor did not seek to clarify any apparent ambiguity or inconsistency in this evidence, during the further evidence-in-chief elicited at trial. The precise evidence given was:381 Officer Perry So would you still continue having consensual sexual intercourse with him while you knew he was recording. ZQ …when he was recording me I wanted to scream. Officer Perry OK and did you scream ZQ …Yes I did and he used his hand to ….stop me… 629 If this evidence did not accurately represent ZQ’s evidence because of a miscommunication arising from the use of the interpreter, then this ought to have been clarified by further questioning from the prosecutor, given the significance of this line of questioning. 630 In the absence of that explanation, this is evidence which must factor, in a negative sense, in my overall assessment of ZQ’s reliability and credibility. 631 Another example of an important inconsistency arises from ZQ’s evidence about the first occasion of forced sexual activity. 632 In the first ZQ interview, ZQ provided quite extensive detail as to the circumstances of the first such occasion, however at the time of the second ZQ interview, ZQ could not remember any of the details of this occasion. 633 The details recalled by ZQ during the first ZQ interview included that the accused had shown her the video and threatened to publish it if she did not agree to have sex with him. She also recalled the accused saying something like, ‘Once you get here you are not in control anymore.’ 634 Those details are important as they go to the crux of why ZQ said she did, in fact, have sexual intercourse, with the accused after the break-up. 635 The second ZQ interview was conducted on 28 March 2023, so within about six months of any alleged first occasion of forced sexual activity. Given the significance of this occasion, one would ordinarily expect a complainant such as ZQ to have a recollection of at least some of the details of that occasion, particularly when asked about it only six months later. Her inability to recall any of the details of that first occasion of forced sexual activity during the second ZQ 380 MFI P2 at line 175. 381 MFI P2 at lines 193 to 200. -- 106 of 119 -- [2024] SADC 165 105 interview, is of some importance in terms of my overall assessment of ZQ’s evidence. 636 Another inconsistency arises from ZQ’s evidence as to the number of times she had forced sexual intercourse with the accused. In the first ZQ interview, ZQ said this occurred over five times.382 I have interpreted her evidence that she was strangled two times by the accused during sexual intercourse from mid-October to early November as being relevant to some of the other occasions of forced sexual activity. 637 In the second ZQ interview, Officer Close asked ZQ to tell her about another occasion of forced sexual activity (that is, other than the first or last such occasion). ZQ said:383 I think that another time is between the first time and the last time. 638 ZQ could not remember that time. 639 Again, given the fact the second ZQ interview was provided on 28 March 2023, and, on ZQ’s evidence, she was engaging in forced sexual activity with the accused in October and early November 2022, it is most unusual that she was no longer able to say, with more certainty, how many further times the forced sexual activity had occurred, and/or have any recollection of any of the details associated with such activity. 640 Another significant inconsistency in ZQ’s evidence relates to what she reported to Officer Glasson at around 3:00pm on Thursday 10 November. ZQ agreed that ‘maybe’ she had not told him about being forced by the accused to have sex with him on the Monday. She agreed that she did tell him about having a bruise on her right arm, caused in an argument with the accused on the Monday. She did not tell the police about the alleged offending until her second attendance on that same day. 641 There may be several explanations for this. It is possible that ZQ did not have the assistance of an interpreter when she spoke to Officer Glasson. I simply do not know. It may be that she was reluctant to discuss with him details of sexual activity. However, a potential explanation for this apparent and significant omission was not explored in re-examination. Inconsistencies in ZQ’s Evidence with Other Evidence On General/Ancillary Matters 642 Counsel for the accused identified numerous alleged inconsistencies between ZQ’s evidence and that of the other witnesses. 382 MFI P2 at line 288. 383 MFI P4 at line 1249. -- 107 of 119 -- [2024] SADC 165 106 643 It was submitted that ZQ’s evidence that she attended the Newton home, under duress, after the break-up and out of fear that the accused would make good on his threat to publish the video(s), was not supported by the evidence given by the other witnesses. 644 Mr Colella and A both gave evidence that they had never seen ZQ at the house apparently against her will, nor had they (or BQ) seen her unhappy while in the company of the accused. 645 As previously stated, I am satisfied that both Mr Colella and A had only limited and brief interactions with ZQ at the Newton house. Neither gave evidence as to precisely when those observations were made, such that they could have been made during July and August before the relationship started to turn sour. 384 Further, as previously discussed, Mr Colella did see ZQ in distress while in the accused’s company on 7 November, the day of the alleged offending. 646 Although BQ said he had seen ZQ and the accused together, he did not say when, where or how many times. 647 As such, this evidence, that is, that others did not see ZQ unhappy around the accused, nor did she appear to be at the Newton house against her will, carries very little weight. 648 ZQ gave evidence that on the occasions she had forced sex with the accused, she would scream and cry and the accused would beat and slap her. It was submitted that the absence of there being any evidence from anyone that they had ever heard screams or other sounds of distress coming from the accused’s bedroom, was inconsistent with this. 649 However, Mr Colella said that when the accused was in his bedroom with ZQ, the door would always be closed.385 Mr Colella’s bedroom and the kitchen were at the other end of the house. A’s bedroom was also located a considerable distance from the accused’s bedroom. Mr Colella said all his students would keep their bedroom doors closed. These circumstances may well explain why no such noises or disturbances were heard. 650 In addition, ZQ gave evidence that when she screamed, the accused put his hand over her mouth to stop her screaming (and/or to stop her screams from being heard). 651 As such, the absence of evidence that others heard ZQ scream or sounds of a struggle coming from the accused’s bedroom does not impact on my assessment of the credibility and reliability of ZQ’s account. 384 Albeit Mr Colella said that ZQ’s visits to the house were ‘constant’ from about a month after the accused came to live with him. 385 T 226.2. -- 108 of 119 -- [2024] SADC 165 107 652 It was submitted that there was another inconsistency in ZQ’s evidence with that of Mr Colella’s, arising from Mr Colella’s evidence that he had seen the accused and ZQ in the kitchen together preparing meals, being something ZQ had denied. 653 ZQ was never asked if she and the accused would prepare meals together in the kitchen at Newton. Rather, she denied a proposition that the accused would cook her a meal in the kitchen and she specifically denied he would cook her a chicken and rice meal.386 I am not satisfied there is a strict inconsistency in this evidence. If there is an inconsistency, and ZQ’s recollection is inaccurate, that does not otherwise impact of my assessment of the reliability and credibility of her account of the alleged offending. 654 It was submitted that similarly, there was no evidence to support ZQ’s evidence as to the various acts of physical violence she attributed to the accused. 655 ZQ gave evidence that the accused choked and strangled her during occasions of forced sex. However, she did not describe any injuries as arising from these actions and it is well understood that an absence of any observable physical injury from such an act or acts is common. 656 ZQ also gave evidence her hand was bruised and swollen following an incident in mid to late October when the accused took her phone and then hit her hand with his phone when she tried to take it back. She did not seek medical treatment. The absence of evidence from another witness to support this allegation does not, in my view, detract from ZQ’s evidence that this injury was caused or how it was caused. This may be different if ZQ had reported multiple, vicious beatings or the like. 657 What is more important is that ZQ claimed to have suffered a bruise to her left arm sustained during the alleged offending. Although Ms Zhou saw bruises on both ZQ’s arms on 10 November, she equated them with having been caused when the accused grabbed her outside the restaurant in Chinatown one or two nights before. There was no suggestion from Ms Zhou that ZQ had told her those bruises were caused during an alleged rape on the Monday. 658 Further, ZQ told Officer Glasson the bruise on her right arm was ‘from Monday when [they] had an argument.’387 She did not tell him the bruise occurred during the alleged rape. 659 These differences in the evidence insofar as they go directly to the circumstances of the alleged offending are of significance. 386 T 87.37-88.3. 387 T 197.9-12. -- 109 of 119 -- [2024] SADC 165 108 As to the Relationship Generally 660 ZQ was cross-examined at length about the messages and various video and audio files. Some of the evidence she gave was inconsistent. Some of the evidence she gave was evasive. 661 For example, ZQ initially denied that she had found out that the accused had sent C her messages about self-harm.388 She later acknowledged that she had sent the accused messages wherein she told him how upset she was for him having done so.389 It is possible that ZQ’s first response was the result of a misunderstanding as to what she had been asked, given the questioning was in the context of her being asked to look at the messages the accused had sent C about self-harm, and the actual response ZQ gave when asked if she had ‘found out’ that the accused had sent those message, namely, ‘No, this is my first time to see these messages’. 662 However, the reason for this apparent inconsistency was not clarified in re- examination. 663 ZQ was shown certain messages she sent the accused on 22 and 23 August where she told him about seeing a guy she had liked before.390 The clear inference from the fact she sent these messages, considered in context, was that she was trying to make the accused jealous. Rather than acknowledge this, ZQ said, ‘It could be, but I don’t remember’.391 664 ZQ was asked if she had dyed the accused’s hair red in the first week of October. Her response was, ‘Maybe’.392 665 While it is possible that ZQ’s response to this question is the result of a miscommunication due to language issues, and that ZQ may have said the word ‘Maybe’ to indicate that she did not remember, this was not sought to be clarified in re-examination. It is also unlikely that ZQ would not remember if she had (or had not) dyed the accused’s hair red, albeit she may not now remember precisely when she did so. However, the response she gave to this question, absent any further explanation, was evasive. 666 When ZQ was asked if she had sent the accused a link to the profile of an attractive woman on 6 November at 10:05pm, she again responded, ‘Maybe’.393 667 There is a screenshot on Exhibit D22 from ZQ’s ‘sXXX’ Instagram account of a message sent from that account to the accused on 6 November containing a link to the profile of an attractive woman. I find that ZQ sent that link to the accused on that day. Although it is possible ZQ answered ‘maybe’ because she could not recall the precise time she sent that link, she was shown the screenshot of this 388 T 124.12-15. 389 T 125.17-18; Exhibit D12 at pp 1-2. 390 Exhibit D10. 391 T 114.24-115.1. 392 T 168.2-4. 393 T 174.3-14. -- 110 of 119 -- [2024] SADC 165 109 message. Insofar as her response ‘maybe’ was meant to mean that she agreed she had sent the accused the link but now could not remember what time she sent this on 6 November, this was not clarified in re-examination. I consider her response to this question was evasive. 668 It was submitted that the messages and audio/video files demonstrated that contrary to her evidence, ZQ was still involved in a relationship with the accused until November and that her actions demonstrated she still had feelings for him up until then. 669 None of the WeChat messages were in evidence and therefore only some of the online communications between ZQ and the accused during the relevant period are in evidence. 670 Further, although those messages were translated, the accuracy of that translation is questionable. While obvious errors were identified, the fact is that some of the messages in Exhibit P5 were identical to the screenshots shown to ZQ (MFI D14). Both series of messages were apparently translated by an appropriately accredited interpreter, however the translation differed in many instances. The differences were subtle but where the Court is required to draw inferences from the words exchanged between two people, even a subtle difference, or the use of a different tense, may make a significant difference in the potential inference or inferences that can be drawn therefrom. 671 Cultural issues also play a significant role. 672 However, the Court can only act on the evidence which is before it. 673 The messages demonstrate there were obvious issues in the relationship from very early on. As at 22 and 23 August, ZQ was trying to make the accused jealous because he was talking to other girls (and, in her evidence, had told him he was intimate with those other girls, notwithstanding he was in a sexual relationship with ZQ). 674 The accused sent a message to ZQ on 5 September (in the context of her pretending to be another girl online and trying to catch him cheating), ‘…we fight these days’.394 It is likely and I find that the reason the accused sent the photograph of ZQ engaging in self-harm to C, was to ask her to look out for ZQ in the context of him having less to do with her in the future, because their relationship was either over or close to ending, consistent with ZQ’s initial evidence that the relationship ended on 7 September. 675 ZQ and the accused continued to interact with each other, both on social media and in person, after 7 September. 394 Exhibit D9 at p 11. -- 111 of 119 -- [2024] SADC 165 110 676 I consider it likely and I find that although ZQ ended the relationship with the accused on or around 7 September as she told Officer Perry, she was still attracted to the accused at that time and wanted to remain involved with him in some way. She ‘unblocked’ him from WeChat on 8 September. She visited his Newton house on both 13 and 14 September, on the first occasion taking photos of him at a park near his house and on the second taking a video of him at his house. 395 If, on those two occasions, she attended the home to have forced sexual activity with the accused as a result of the threats, it is unusual that she would also take those photos or make that video, using the accused’s phone. 677 On 16 September, the accused sent ZQ several threatening messages. The tone and content of most of the messages he sent ZQ that day, and many of the messages he sent to her thereafter, was aggressive, condescending, demanding and bullying. However, ZQ continued to engage with him. She tried to keep the conversation/argument going on 16 September, despite the accused stepping away from it for several hours. When he returned to the conversation, he continued to berate her, ‘Haven’t you noticed I don’t reply to your blubbering anymore?’. 678 On 15 October, the accused sent a message to ZQ stating ‘I’m not your boyfriend’. He could not have been clearer. There can be no doubt the relationship was over then, as it most likely was weeks before, yet they still continued to communicate with each other online and see each other thereafter. 679 On the prosecution case this was because of the threats. 680 However, the threats were being made from as early as 16 September and the ‘I’ll make you famous in XXX High’ message was sent on 2 October. 681 The evidence demonstrates and I find that ZQ continued to see the accused in various different social settings, not just at the house at Newton, thereafter. There was no evidence that ZQ gave the accused the flowers depicted in a photograph dated 23 September, or that ZQ visited the accused at an internet café on 28 September or that ZQ was with the accused near the Adelaide Casino on either 22 September or on 31 October. 682 However, ZQ agreed she went to Ikea with the accused on 6 October and that she met the accused for Hotpot on 13 October. In all likelihood she dyed his hair red sometime in early October. 683 The fact that ZQ was unhappy with the accused because he was chatting with other girls on Instagram as of 12 October, demonstrates that she still had feelings for him at that time, rather than simply being relieved that he had shifted his attention away from her and onto another girl or girls. 395 T 127.9-13; T 127.17-20; Exhibit P21 at [26.6] and [26.7], Exhibit D22, files marked 1863 and ’14 September’. -- 112 of 119 -- [2024] SADC 165 111 684 Further, I am satisfied that on 6 November, that is, the day before the alleged offending, ZQ did send the accused a link to the profile an attractive young woman. Although the context in which that link was sent is unknown, this behaviour suggests that ZQ was still interested in engaging with the accused at that time and, consistent with some of her earlier behaviour, likely still jealous about his interest in other women (or at the very least, interested at his reaction to being sent this link). 685 As previously stated, I am conscious of the fact that not all of the communications between ZQ and the accused are in evidence. It is difficult to make inferences from isolated ‘snapshots’ from those communications. 686 However, when looked at in combination with the audio and video files, the messages demonstrate, and I find, that ZQ was still interested in maintaining a relationship of sorts with the accused beyond 7 September, up to, at least 6 November. While it is possible she did so simply to placate him and in response to his threats to publish the videos, some of her behaviour is simply inconsistent with this. Rather, it is consistent with her still having some positive feelings for the accused, notwithstanding that he was treating her appallingly (the latter being amply demonstrated by his social media communications with her). What occurred on 7 November 687 It was submitted that there were several differences in ZQ’s evidence and that of Mr Colella, relevant to the circumstances of the offending, which should cause the Court to have at least a reasonable doubt as to the reliability of ZQ’s account. 688 One such difference related to what had occurred next to the pool. 689 Mr Colella’s evidence was that he was in the kitchen when he heard ZQ screaming. He went outside to where ZQ and the accused were, near the pool. He retrieved ZQ’s glasses from the pool at that time. In cross-examination, ZQ agreed that her glasses were retrieved from the pool. 690 In the first ZQ interview, ZQ told Officer Perry that the accused took her phone and had threatened to throw it in the pool. She did not tell Officer Perry anything about the glasses. Mr Colella did not notice either ZQ or the accused holding anything. 691 It was submitted that by mentioning the phone to Officer Perry, and not the glasses, ZQ was simply embellishing her story about the threatened posting of the video.396 In other words, she was adding detail to make her version of the alleged offending sound more plausible. 396 T 313.15-29. -- 113 of 119 -- [2024] SADC 165 112 692 I reject this submission, as it simply does not make sense. The video was on the accused’s phone, not on ZQ’s phone. 693 ZQ gave no evidence that the accused did, in fact, throw her phone in the pool. The fact Mr Colella did no see the accused holding a phone is unremarkable. It would be unusual if he did recall such a minor detail. Although ZQ was not re- examined as to why she did not mention the accused throwing her glasses in the pool, before it was raised with her in cross-examination, it may well be that she had simply forgotten that detail, which was insignificant in the context of what she says had occurred to her, in the accused’s bedroom, shortly prior to this. 694 Another potential difference in ZQ’s account and Mr Colella’s evidence related to whether ZQ left the house alone, or with the accused, after the alleged offending. 695 Mr Colella gave evidence that after he retrieved ZQ’s glasses from the pool:397 … She was very polite and said, ‘thank you’, and I went back inside and she went back into the room and, into the bedroom and was there for so many minutes and left, and he got up and left with her. (my emphasis) 696 A proposition was put to ZQ that the accused had caught the bus into the city with her from Newton after the alleged offending. She said initially, ‘I don’t recall’ and then said, ‘No, I don’t think so.’398 697 If ZQ and the accused did, in fact, catch the bus into the city together thereafter, this is seemingly inconsistent with him having raped ZQ shortly beforehand. However, there was no evidence that they did, in fact, catch the bus into the city together thereafter. Although Mr Colella described the accused leaving with ZQ, he did not see where the accused (or ZQ) went after they left the house. They could have gone entirely separate ways. 698 However, there was an important difference in ZQ’s evidence, compared to that of Mr Colella, as to what occurred at the Newton house on 7 November. 699 In the first ZQ interview, ZQ said that the accused’s homestay family were home at the time of the alleged offending. She did not say anything about any interactions with them at that time.399 700 In the second ZQ interview, ZQ said the homestay host was in the house and ‘heard it’ and asked, ‘what’s going on’.400 When asked where the homestay host 397 T 230.34-38. 398 T 184.20-25. 399 MFI P2 at line 401. 400 MFI P4 at lines 343-352. -- 114 of 119 -- [2024] SADC 165 113 was at this time, ZQ said, at first, ‘out his door’ and then said, ‘outside the room’. She said the door was closed and he did not see what was happening.401 701 In cross-examination, ZQ was asked if the homestay host had come to the door when the accused was having sex with her and she was screaming. She said, ‘I think so’.402 She said he had enquired whether she was okay but she had not said anything.403 702 Given what she said in cross-examination, the only possible interpretation of what ZQ said in the second ZQ interview on this topic is that she recalled Mr Colella being on the other side of the accused’s bedroom door while the accused and her were having sex on 7 November. As the door remained closed, he did not see what was happening at that time. He enquired what was happening, but she had not said anything. 703 If, in fact, this evidence was the product of some misunderstanding due to language issues, either at the time of the second ZQ interview or during cross- examination, this was not clarified by way of ZQ’s further evidence-in-chief or in re-examination. 704 Mr Colella did not give evidence that he had gone to the accused’s bedroom door in response to hearing ZQ screaming on the day of the alleged offending. He said he had never heard any noises or disturbances coming from the accused’s bedroom. His only evidence of any interaction with the accused and ZQ on 7 November related to his observations of them in the courtyard near the pool (and hearing them in the courtyard). 705 This is an important difference in the evidence as it goes to the circumstances incidental to the offending. It is unlikely that either ZQ or Mr Colella could be mistaken as to this. While there were aspects of Mr Colella’s evidence which caused me some concern, there is no basis for me to reject his evidence on this important issue. Ms Zhou’s Evidence –As to the Complaint and Generally 706 As previously stated, the timing of the complaint and the fact it was made to Ms Zhou demonstrates some degree of consistency in ZQ’s conduct. 707 However, the content of the complaint as described by Ms Zhou differs from (and omits) important details compared with ZQ’s account of the alleged offending. 708 Ms Zhou did recall ZQ telling her she had recently engaged in forced sex with the accused which is consistent with ZQ’s account. 401 MFI P4 at lines 1019-1035. 402 T 182.24. 403 T 182.25-29. -- 115 of 119 -- [2024] SADC 165 114 709 However, Ms Zhou gave no evidence that ZQ told her that the accused had threatened her prior to her engaging in that sexual intercourse, and/or how he had threatened her. Importantly, Ms Zhou made no mention of the video(s). 710 Much was made of the fact that ZQ only told Ms Zhou about engaging in non-consensual sex with the accused after this was raised by Ms Zhou. However, as stated, ZQ was very reticent to discuss anything relating to sex or sexual activity in the prescribed interviews. It was necessary for the interviewers to consistently probe ZQ for more detail to understand precisely what she was claiming had happened. It was only after she was pressed for detail, that she provided it. I consider this aspect of Ms Zhou’s conversation with ZQ falls into the same category – it was only when she was specifically asked about their sexual relationship, that ZQ discussed it. 711 However, a significant feature of what Ms Zhou recalled ZQ telling her was her concern that the accused was stalking her at her homestay house and workplace and that she did not feel safe. 712 These matters did not specifically form part of ZQ’s allegations, albeit she did tell Officer Perry that the accused had threatened to go to her house. Of course, ZQ was being specifically questioned by Officer Perry (and Officer Close, and in court) about her specific allegation of rape and there was limited questioning about other aspects of the accused’s behaviour that may have been of concern to her. 713 However, Ms Zhou’s recollection was that ZQ’s particular concern was that the accused was stalking her outside the restaurant where she worked and at her home. Notwithstanding ZQ’s reluctance to discuss sexual matters, she did tell Ms Zhou about the fact the relationship was a sexual one. If the accused had raped her three days earlier and had raped her several times over the previous weeks as ZQ claims, it is unusual that those events would not have been (or become) the focus of the discussion. 714 Perhaps ZQ was endeavouring to find a solution to her problem from Ms Zhou without having to go into too many details about her sexual activity with the accused. Perhaps she was simply too ashamed or embarrassed to talk about this openly with Ms Zhou (or Officer Glasson – noting she did not tell him about being raped on the Monday). However, ZQ did not give any evidence about withholding details about the alleged offending from either Ms Zhou or Officer Glasson because of embarrassment or similar. 715 The fact that Ms Zhou’s ‘takeaway’ from the conversation was that ZQ’s primary concern was the accused stalking and harassing her, rather than the fact she had been aggressively raped by him three days earlier, does cause me to have some doubts about precisely what did occur on Monday 7 November at the Newton house. -- 116 of 119 -- [2024] SADC 165 115 716 Similarly, the fact ZQ did not tell Officer Glasson about the rape but did tell him her arm was bruised in an ‘argument’ on the Monday, contributes to those doubts. 717 Another important difference in Ms Zhou’s recollection of the conversation, and ZQ’s evidence, is Ms Zhou’s recollection that ZQ told her that the accused was waiting for her outside of her work in Chinatown, one or two nights earlier. Ms Zhou appeared to correlate the bruises she saw on ZQ’s arms as having been caused at that time, when the accused grabbed her. 718 I have considered the possibility that Ms Zhou’s recollection of what ZQ told her may now be confused and that ZQ told her about two entirely different incidents – her fear of the accused stalking her outside the restaurant in Chinatown and an entirely unrelated and separate incident that had occurred one or two nights before, when he grabbed her on the arm. It may be that the latter incident was ZQ describing the accused grabbing her arm when they were arguing by the pool at the Newton house on Monday 7 November. 719 However, this was not Ms Zhou’s evidence. She had a much more detailed recollection of the conversation, than ZQ. She was confident in that recollection and what was ZQ’s primary concern about the accused’s behaviour. 720 I have no reason to doubt the reliability and credibility of that evidence. 721 Further, ZQ was adamant she had not seen the accused between the date of the offending and reporting the offending to police. If the accused was waiting for ZQ outside the restaurant one or two nights before she spoke to Ms Zhou, then that must have been on either the Tuesday or Wednesday night, that is, after the offending. This immediately raises a concern as to both the reliability and credibility of ZQ’s evidence. 722 I have previously outlined in detail why I have rejected the proposition that ZQ stabbed the accused with a knife on Wednesday 9 November 2022. However, it remains possible that the female voice heard in the background of the recording made of the accused walking near Chinatown at dusk on Wednesday 9 November 2022, is ZQ’s voice. The fact Ms Zhou recalled ZQ telling her she had seen the accused one or two nights earlier in Chinatown lends some support to that conclusion (albeit for the reasons I have previously expressed, Ms Zhou’s recollection of what ZQ told her and how she felt at the time the accused was waiting for outside her workplace, does not accord with what can be seen, heard and inferred from that recording). 723 However, if that is ZQ’s voice on that recording, then, in my view, what can be seen, heard and inferred from that recording, is inconsistent with ZQ having been raped by the accused two days earlier. -- 117 of 119 -- [2024] SADC 165 116 Summary 724 While I am conscious of ZQ’s young age and potential language and cultural issues, I am not satisfied those issues fully explain why, in terms of both her demeanour and willingness to answer questions, she presented so poorly, particularly during cross-examination. 725 On its face, this was a strong prosecution case. However, the combination of ZQ’s poor presentation as a witness and some important inconsistencies (and omissions) in her account, does impact negatively on my overall assessment of her reliability and credibility as a witness. Conclusion 726 There are aspects of the evidence which provide strong support for ZQ’s account of the alleged offending, specifically the fact the accused was still in possession of the video on 11 November and the damning messages the accused sent to her. 727 I am satisfied beyond reasonable doubt those messages relate to a threat by the accused to publish/post the video(s) and not to publish/post something else, whether that be a photograph of ZQ with another boy, or of ZQ self-harming, or something entirely different. 728 I reject the two alleged motives to lie. I am satisfied the accused lied to Mr Colella about ZQ stabbing him. I consider it likely BQ’s evidence was untrue and tailored to provide support to his friend, the accused. 729 While there is every possibility the accused’s injuries were in fact sustained during his rape of ZQ on Monday 7 November, I cannot be satisfied of that beyond reasonable doubt. 730 I have no doubt the accused was bullying, harassing and threatening ZQ. He treated her appallingly. 731 I am satisfied that a reasonable inference that can be drawn from the messages, in combination with the video and all of the evidence, is that during September and October 2022, the accused was threatening to post, on social media, or otherwise publish, a recording or recordings of ZQ engaging in sexual activity with him, unless ZQ did what he wanted her to do and that this included her attending at his house and having sex with him. 732 I am satisfied threats of that type were made to ZQ up to and including 20 October. 733 However, I am also satisfied that ZQ continued to see the accused for purposes other than sexual activity in October, notwithstanding these threats. I am satisfied that despite how badly the accused was treating her, ZQ was still jealous about the accused’s interest in other girls as at 15 October (when she sent -- 118 of 119 -- [2024] SADC 165 117 the ‘chatting with Bonnie’ message) and even as late as 6 November when she sent the accused the link to the profile of an attractive girl. 734 In the absence of there being evidence of any threatening message proximate to the day of the alleged offending, I cannot exclude as a reasonable possibility that ZQ did have sexual intercourse with the accused on 7 November 2022 but that she did so because she still held romantic feelings for him, notwithstanding the fact that he treated her badly throughout the relationship and not because of the threats. 735 ZQ cannot be mistaken about what occurred on that day. It must follow, that I cannot exclude as a reasonable possibility, that ZQ is not telling the truth about what occurred at the Newton house on 7 November 2022. 736 The accused and ZQ certainly argued by the pool on that day. The fact ZQ told Officer Glasson about an argument having caused the bruise on her arm, and did not tell him about the rape, together with the other important inconsistencies (and anomalies) in ZQ’s account identified above, do cause me to have a reasonable doubt as to the accused’s guilt with respect to either count. 737 As such, I cannot exclude, as a reasonable possibility, that no sexual intercourse occurred at the Newton house between ZQ and the accused on the relevant date, and that rather than attend there to have sex with the accused, because of the threats, ZQ attended for another reason, such as discussing the state of their relationship and/or imploring him to stop harassing and threatening her. 738 As such, while I consider it likely the accused did engage in sexual intercourse with ZQ on 7 November 2022, when he was 18 and he knew she was 16, and, in all likelihood, raped her on that day, I cannot be satisfied of that beyond reasonable doubt. 739 I find the accused not guilty of both counts. -- 119 of 119 --