DISTRICT COURT OF QUEENSLAND
CITATION: R v BC [2020] QDC 247 PARTIES: R
v
BC
FILE NO/S: 227/20 DIVISION: Criminal PROCEEDING: Judge Alone Trial ORIGINATING COURT: District Court of Queensland DELIVERED ON: 26 August 2020 DELIVERED AT: Townsville HEARING DATE: 13 July 2020, 14 July 2020 and 15 July 2020 JUDGE: Coker DCJ ORDERS: 1. Verdict for Count 1: Not Guilty
2. Verdict for Count 2: Not Guilty
3. Verdict for Count 3: Not Guilty
4. Verdict for Count 4: Not Guilty
5. Verdict for Count 5: Not Guilty
6. Verdict for Count 6: Not Guilty
CATCHWORDS: CRIMINAL LAW – JUDGE ALONE TRIAL – where the defendant is charged with four counts of rape (domestic violence offence) and two counts of sexual assault (domestic violence offence) – where the defendant elected trial by judge alone
LEGISLATION: Criminal Code 1899 (Qld) (s349, 352, 564, 615, 615B, 615C)
Penalties and Sentences Act 1992 (Qld) (s12A)CASES: Fleming v The Queen (1998) 197 CLR 250 (at 263; [28]) COUNSEL: A.Dunkerton for the Prosecution
C.Grant for the DefendantSOLICITORS: Office of Director of Public Prosecutions for the Prosecution
Anderson Telford Lawyers for the Defendant
Background
The defendant is charged with four counts of rape (domestic violence offence) and two counts of sexual assault (domestic violence offence). The charges are brought, in respect of the alleged rapes, pursuant to sections 349 and 564(3A) of the Criminal Code 1899 (Qld) (‘the Code’) and section 12A of the Penalties and Sentences Act 1992 (Qld). In respect of the alleged sexual assaults, they are brought pursuant to sections 352(1)(a) and 564(3A) of the Code and section 12A of the Penalties and Sentences Act.
The indictment details the counts as follows:
That on a date unknown between the first day of July, 2018 and the thirty-first day of August, 2018 at Townsville in the State of Queensland, BC raped VC. And the offence is a domestic violence offence.
That on or about the twenty-sixth day of September, 2018 at Townsville in the State of Queensland, BC raped VC. And the offence is a domestic violence offence.
That on or about the twenty-sixth day of September, 2918 at Townsville in the State of Queensland, BC unlawfully and indecently assaulted VC. And the offence is a domestic violence offence.
That on or about the fourth day of October, 2018 at Townsville in the State of Queensland, BC unlawfully and indecently assaulted VC. And the offence is a domestic violence offence.
That on or about the sixth day of October, 2018 at Townsville in the State of Queensland, BC raped VC. And the offence is a domestic violence offence.
That on or about the nineteenth day of October, 2018 at Townsville in the State of Queensland, BC raped VC. And the offence is a domestic violence offence.
On 6 May 2020 an order was made pursuant to section 615(1) of the Code that the defendant be tried by a Judge sitting without a jury. There followed a number of further applications which required determination prior to the hearing and on 13 July 2020 the trial commenced.
The defendant entered a plea of not guilty to all counts. The evidence was taken over the next two and a half days and I heard closing addresses from Counsel on the afternoon of 15 July 2020. At the conclusion of submissions I reserved my decision.
Trial by Judge Alone - Directions
Section 615B of the Code prescribes the law and procedure which I must apply as a Judge sitting alone without a jury. I must apply, so far as is practicable, the same law and procedure as would be applied in a trial before a jury. Further, where an Act or the common law requires information or a warning or instruction to be given to the jury in particular circumstances or prohibits such a warning from being given, I must take that requirement or prohibition into account if the circumstances arise in the course of the trial. In accordance with section 615C of the Code, I may make any findings and give any verdict that a jury could have made or given if the trial had been before a jury and any finding or verdict of mine has, for all purposes, the same effect as a finding or verdict of a jury.
The judgment of the court in such a case must include the principles of law that I as the judge apply and the findings of fact on which I rely. It is necessary in a judge alone trial to expose the reasoning process linking the principles of law with the findings of fact and justify the process and, ultimately, the verdict that is reached.[1]
[1] Fleming v The Queen (1998) 197 CLR 250 (at 263; [28])
There are certain general directions that I must take into account. As the Judge of the facts in a trial by Judge alone, as well as the Judge of the law, I must find the facts and draw inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice. My verdict must be determined according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The standard of proof is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt. The accused is presumed by law to be innocent unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt. The accused then loses the presumption of innocence and I must find him guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence charged then I must find the defendant not guilty. If I am satisfied that there may be an explanation consistent with the innocence of the accused, or I am unsure of where the truth lies, then I must find that the charge has not been proved to the standard of proof required by law and I must find the accused not guilty.
Matters which will concern me are the credibility of the witnesses, and the reliability of their evidence. It is for me to decide whether I accept the whole of what a witness says, or only part of it, or none of it. I may accept or reject such parts of the evidence as I think fit. It is for me to judge whether a witness is telling the truth and correctly recalls the facts about which they have testified. I am also required to determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my common sense, experiences and wisdom in assessing the evidence.
The defendant does not have to give evidence, call other people to give evidence on his behalf or otherwise produce evidence. He did, however, both give evidence and call evidence on his behalf. I remind myself that the fact that he has done so does not mean that he has assumed a responsibility of proving his innocence.
The burden has not shifted to the defendant. Rather, his evidence, and that of the other witnesses that he called, is added to the evidence called for the prosecution. However, the prosecution has the burden of proving each of the elements of the offences beyond a reasonable doubt and it is upon the whole of the evidence that I must be satisfied beyond reasonable doubt that the prosecution has proved the case before the defendant may be convicted.
Often enough cases are described as ones of “word against word”. I should understand that in a criminal trial it is not a question of me making a choice between the evidence of the prosecution’s principal witness or witnesses, and the evidence of the defendant and/or his witnesses. The proper approach is to understand that the prosecution case depends upon me accepting that the evidence of the prosecution’s principal witnesses was true and accurate beyond reasonable doubt, despite the sworn evidence by the defendant and/or his witnesses; so I do not have to believe that the defendant is telling the truth before he is entitled to be found not guilty.
Where, as here, there is defence evidence, usually one of three possible results will follow:
1)I may think the defence evidence is credible and reliable, and that it provides a satisfying answer to the prosecution’s case. If so, my verdict would be not guilty; or
2)I may think that, although the defence evidence was not convincing, it leaves me in a state of reasonable doubt as to what the true position was. If so, my verdict will be not guilty; or
3)I may think that the defence evidence should not be accepted. However, if that is my view, I should be careful not to jump from that view to an automatic conclusion of guilt. If I find the defence evidence unconvincing, I should set it to one side, go back to the rest of the evidence, and ask myself whether, on a consideration of such evidence as I do accept, I am satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence in question.
The Charges
As I have indicated, the defendant is charged with four counts of rape (domestic violence offence) and two counts of sexual assault (domestic violence offence). Section 349 of the Code insofar as it is relevant provides:
Rape
1)Any person who rapes another person is guilty of a crime.
Maximum penalty—life imprisonment.
2)A person rapes another person if—
a) The person has carnal knowledge with or of the other person without the other person’s consent; or
b) The person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person’s body that is not a penis without the other person’s consent; or
c) The person penetrates the mouth of the other person to any extent with the person’s penis without the other person’s consent.
Section 352 of the Code insofar as it is relevant provides:
Sexual Assaults
1)Any person who—
a) Unlawfully and indecently assaults another person.
is guilty of a crime. Maximum penalty—10 years imprisonment.
Relevant to all of the charges are section 564(3A) of the Code and section 12A of the Penalties and Sentences Act. Each of those sections as is relevant here provide:
S564 Form of Indictment
(3A) An indictment for an offence may also state the offence is a domestic violence offence.
S12A Convictions for Offences Relating to Domestic Violence
1) Subsections (2) to (4) apply if—
a)a complaint or an indictment for a charge for an offence states the offence is also a domestic violence offence; and
b)the offender is convicted of the offence.
2) If a conviction is recorded in relation to the offence, it must also be recorded as a conviction for a domestic violence offence.
In order to return a verdict of guilty in respect of the counts of rape, the prosecution must prove beyond reasonable doubt each of the following elements, relevant to each of the four counts:
The prosecution must prove the defendant:
1)Had carnal knowledge of or with (the complainant).
2)Without her consent.
OR
1)Penetrated the vulva, vagina or anus of the other person.
2)To any extent.
Similarly, in respect of the counts of sexual assault, the prosecution must prove beyond reasonable doubt each of the following elements relevant to the two counts:
The prosecution must prove that:
1) The defendant assaulted the complainant
“A person who strikes, touches or moves or otherwise applies force of any kind to the person of another either directly or indirectly without their consent is said to assault that other person and the act is called an assault”.
“Consent” means consent freely and voluntarily given by a person with the ability to know and understand what she is doing in giving consent. (Refer to any of the circumstances in s 348(2) which may be relevant as negating consent.) (Section 245 (Assault) does not provide an explanation of the meaning of “without the other person’s consent”. Although the definition in s 348 does not strictly apply to s 352, it provides a useful formulation of circumstances which may be relevant as negating consent).
2) The assault was unlawful.
An assault is unlawful unless it is authorised, justified or excused by law.
3) The assault was indecent.
The word “indecent” bears its ordinary everyday meaning. It is what the community regards as indecent. It is what offends against currently accepted standards of decency. Indecency must always be judged in the light of time, place and circumstances.
The prosecution’s case against the defendant can be summarised by reference to the particulars relied upon by the Crown. Those particulars were as follows:
1) Count 1: Rape (domestic violence offence)
-The defendant inserted his penis into the complainant’s vagina without her consent.
2) Count 2: Rape (domestic violence offence)
-The defendant inserted his finger into the complainant’s vagina without her consent.
3) Count 3: Sexual assault (domestic violence offence)
-Whilst the complainant was naked in the shower, the defendant touched her and/or tried to kiss her.
4) Count 4: Sexual assault (domestic violence offence)
-The defendant touched the complainant’s vagina without her consent.
5) Count 5: Rape (domestic violence offence)
-The defendant inserted his finger into the complainant’s vagina without her consent.
6) Count 6: Rape (domestic violence offence)
-The defendant inserted his finger into the complainant’s vagina without her consent.
The Evidence
The prosecution called five witnesses: the complainant, VC; her mother, DJC; a police officer, Mr W; and two psychologists, Ms A and Ms M. It is noted by me that Senior Constable W and both psychologists were called in respect of the matter of preliminary complaint evidence rather than regarding evidence relating to their professional duties or opinions.
The complainant’s evidence was, of course, most significant relating, as it did, to a considerable amount of background information as well as to each of the six counts and her evidence surrounding them. The evidence was taken by a video link and the courtroom was closed.
Prior to the complainant’s specific evidence being given however, the defence requested the opportunity for a Basha Inquiry, there having been some further information provided by the complainant in her pre-trial conference with the Crown prosecutor the day before. This was not opposed and was conducted prior to the commencement of the trial proper. The Basha Inquiry related to a disclosure by the complainant regarding an incident of sexual abuse as a teenager and whether she had told the defendant about that incident. She indicated that she had, and also made reference to her use of a prescription drug, Champix, and also to her use of Valium. She acknowledged her past use of those drugs, but was firm in her evidence that neither were being used at the time of the alleged incidents.
The complainant also acknowledged that her use of Valium was without a prescription, being provided to her by her mother or her now partner. She also confirmed that she was using a non-prescription medication, Valerian, to assist with sleep.
Subsequent to the conclusion of the Basha Inquiry, the complainant was recalled and re-affirmed and her evidence in chief was taken. The complainant gave her evidence in a forthright and open manner and gave me the impression that she was giving her evidence reliably and honestly. She spoke positively about the early stages of the relationship and of her happiness in the marriage. She also detailed the gradual decline in the nature of the relationship and her dissatisfaction with aspects of the defendant’s army career, in particular his postings and requirements to live and work at various places in Australia.
The complainant described the deterioration in the relationship and said that she had tried to discuss it with the defendant, but that such discussions had not resolved the situation. She also explained her attitude to intimacy with the defendant, how she started to wear a nightie or other clothing items to bed and telling the defendant that she was not interested in any sexual interactions.
The complainant described in her evidence in chief each of the incidents said to give rise to the various counts within the indictment, and appeared to have a clear and precise recollection, though there was one part of her evidence relating to counts two and three where she seemed to become a little confused. She did, however, correct herself and went on to describe with some precision the actual event.
The complainant also gave evidence regarding an email received from the defendant on 26 September 2018 and confirmed that many of the matters referred to in the email were reflective of discussions she had previously had with the defendant.
The complainant also confirmed her discussions with the psychologists and Senior Constable W prior to any formal complaint being made to police.
I found the complainant, to this point in her evidence, a reliable witness giving evidence in a truthful manner. In cross examination, however, some matters of concern arose for me in my assessment of the reliability of the complainant’s evidence.
In cross examination, perhaps to some extent understandably, the complainant became more aggressive in her responses. However, some of that aggression appeared to arise in situations which seemed quite innocuous. This occurred, for example, where there were questions relating to the families financial circumstances and the impression that I gained was that the complainant lay the blame for any financial difficulties at the feet of the defendant, notwithstanding that their financial situation was a joint issue.
It was also clear though, that the complainant was attempting to be as honest as she could be, agreeing that she had lied to the defendant about an affair and acknowledging that when the defendant had asked if she was having an affair that she had directly lied to him, denying that was the case.
The complainant’s evidence regarding the use of Valium, a prescription drug obtained by the complainant without a prescription, was in my view the most troubling evidence. She was cross examined as to where the tablets were found by the defendant and as to the number found. She acknowledged that the tablets were in her jewellery box but denied the number suggested. I am troubled by her denial because I thought her response was evasive, particularly when speaking of the type of packaging and then acknowledging different packaging was actually used.
Also, her mother’s evidence was unusual in the circumstances of how the un-prescribed tablets came into her daughter’s possession leading to a doubt on my part as to the veracity of that evidence.
The complainant was cross examined at length about what were referred to as the various incidents and was again, I found, a generally reliable and honest witness. She did not seem to exaggerate or to attempt to overlay her evidence with further disclosures or add descriptors over and above what had been originally complained of by her.
She also made concessions and gave acknowledgments which gave her evidence a real impression of reliability. For example, she acknowledged that in respect of the first incident, when she exclaimed, “what the hell” the defendant immediately stopped having sex with her. She also accepted that the defendant had said that he had thought that there was consent to the intercourse and that she had accepted his word, at that time, in that respect. She also acknowledged consensual sexual intercourse followed later that night.
Generally, I found the complainant to be a witness of truth, doing her best to recount, as accurately as she could, the incidents that gave rise to the charges.
I say generally however, because I was troubled by her evidence in relation to when she said she was using non-prescription sleeping medication as well as un-prescribed prescription medication. Quite simply, her evidence regarding when she was taking one or other or both of those medications seemed uncertain and there is of course the fact that at trial she said she was not using Valium at the time but the evidence of Ms M was that she had told her that she was still taking Valium. That gives rise to some uncertainty on my part because of the obvious inconsistency but also because of the possible effect upon the reliability of the complainant’s evidence.
On the second day of the trial, the complainant firmly indicated that she had stopped the use of Valium in the middle of 2018 but then acknowledged that in her police interview, she had told Senior Constable N that she took Valium on approximately four occasions in late 2018. She agreed, after being shown the transcript of that interview, that she had told Senior Constable N this but that was not correct.
She also was asked about what she had told the other witnesses before making any formal complaint and generally maintained her current version as correct. She specifically denied what was put to her in respect of what she said to have disclosed to her mother in law, Mrs C. I shall come to Mrs C’s evidence in due course, but certainly note the disparity from what the complainant indicated.
The complainant was cross examined at some length about what she told others about the incidents and whilst I accept that the complainant was attempting to be as accurate as she could be, I note the obvious discrepancies.
Finally, in cross examination the complainant was asked about her motivation to make those complaints. She acknowledged sending a text to the defendant on 16 September 2018 saying, “If I have to be a cunt for you to accept, then I will.”
The suggestion was that the complainants’ wish to travel back to Sydney with the children was such that she would do or say anything to get what she wanted. The complainant denied that there was any such intention and that it only related to getting the defendant to accept that she wanted to return to Sydney.
Whilst the complainant denied any other motivation to lie in any complaint made to police, I accept that there is a real consideration relating to a motive to lie.
As I have already indicated, I was generally impressed by the evidence of the complainant, though as I have noted, there were some inconsistencies with other statements made by her and also matters that arose as to the accuracy of her recollection of the various incidents.
Also called were various witnesses regarding preliminary complaints by the complainant. Firstly, there was the complainant’s mother, DJC. She gave evidence generally corroborative of what the complainant had detailed in her evidence though without any great particularity.
In cross examination, Ms DJC generally confirmed what evidence she had given in respect of disclosures made to her by the complainant but unfortunately she was transparently untruthful in evidence regarding her knowledge of whether the complainant was taking Valium. This related to evidence by Ms DJC prior to being warned about the privilege against self-incrimination and whilst I draw no inferences adverse to the issues regarding matters to which privilege was claimed, I am mindful of the general unreliability of other evidence. I find this because the witness denied any knowledge of the complainant’s use of Valium, however obtained, when that was patently untrue. This clearly cast a pall over the entirety of her evidence.
Also called was Senior Constable W. Senior Constable W spoke briefly with the complainant on the date of separation, 26 October 2018. He said he spoke to her in respect of domestic violence advice but that she had made disclosures to him as to sexual offending.
Senior Constable W described what he had been told, noting that in respect of the first incident that she had:
“…fallen asleep after taking some sleeping pills. Had woken up to find the – her husband respondent BC, the defendant having un-consensual sex with her.”
I accept the evidence of Senior Constable W.
The two psychologists, Ms A and Ms M were also called but in the nature of preliminary complaint witnesses. Ms A’s evidence related to counselling with the complainant on 12 October 2018 and more specifically noted, with the assistance of referring to her notes, that the complainant had woken to the defendant having sex with her:
“…Over the past- several times over the past several months and that was on the first date that I had seen her.”
In a further interview, noted as occurring on 8 November 2018, Ms A recorded that the complainant reported:
“…that what- what she had identified as rape became daily. And she said things had escalated.”
Again, I accept the evidence of Ms A as to the matters of preliminary complaint but remind myself particularly of the inconsistencies between what she says she was told by the complainant and as to the defendant’s evidence, especially with regard to the alleged rapes.
Next called was Ms M, who also indicated that she had met with the complainant for the purposes of counselling but that various disclosure had been made to her. In particular she noted:
“Now, did she describe any specific occasions to you?---Yeah. So she certainly – she stated that the – on the initial occasion, her – her husband came into – sorry. She’d – she’d taken a Valium to go to sleep – to help her sleep – and she went to her bed. She stated that later in the night she woke up to her husband on top of her and, in her words, she said he was having sex with her. She stated that she pushed him off her and told him to stop, in which he did at that time. She stated that after this her husband, then, apologised to her the next day for – and, in his words, she stated that he said raping her. She said that she was really surprised by that word. She just didn’t understand why.”
Additionally, Ms M confirmed that there was disclosure by the complainant of two occasions that she woke to find the defendant’s finger/s inside her vagina and he was masturbating. This is different to the complainant’s evidence, though Ms M subsequently indicated that she could not be one hundred percent sure as to masturbation.
Following this evidence the Crown indicated that was their case and the defendant was called upon. The defendant elected to give evidence and to call evidence. The defendant was, I find, a most impressive witness. He is an army officer, apparent not only from his indication but also from his general demeanour and the manner in which he gave his evidence. His answers to questions were both considered and precise.
He was also able to give comprehensive evidence regarding his relationship with the complainant, their marriage, building a home in Wodonga and the circumstances of his posting to Townsville. He then described with considerable precision the financial situation that the two of them found themselves in, as well as the early stages of their time in Townsville, including his opportunities for deployment and the consequential financial benefits.
He described exchanges between himself and the complainant regarding the deterioration in their marriage whilst he was on various courses, including a phone call from the complainant whilst he was on Exercise, where she told him she was going to end the marriage and leave. He described a text from the complainant saying, “I’m not a good wife” and whilst having his suspicions, only having it confirmed from the previous day’s evidence, that the complainant was having an affair.
The defendant gave evidence about a disclosure to him by the complainant that she was taking Valium which had been prescribed for her by a doctor. He also said that he found Valium at their home on 30 September 2018 in a clip seal bag, not a normal dispenser pack. I accept the defendant’s evidence in respect of those matters relating to what he was told by the complainant and what he found.
He then described quite precisely the last time that he says he and the complainant had sexual relations, which constitutes the first count of rape. His evidence was as follows:
“All right. When you got into bed can you tell us what happened?‑‑‑When – when I got into bed we’d started – started to fall – fall asleep and VC rolled over and she put her hands down my pyjama pants and grabbed my penis and told me to fuck her. And then we proceeded to have sex. We had sex in – at the risk of sounding vulgar, multiple positions, and this included VC being on top of me. The entire time that we had sex VC was awake, she was coherent and she was actively involved.
At any point in time did she communicate otherwise?‑‑‑There was as point just prior – and, again, I don’t really want to go into it because it’s a personal, intimate thing between me and my former wife – but we were – I was – we were about to finish in the way that we usually did. I was on top of her. She – I – I was not inside her at the – at the time. And she shouted out, “What the hell?” And ‑ ‑ ‑
What did you do?‑‑‑I was taken aback in shock. I rolled off her and VC got up and she walked outside and had a cigarette. I remained inside the entire time in complete shock. I did not know what had just occurred with her. But then she came back in and proceeded to have sex with me again.
Did you, at any point between those two occasions of having sex with her, have an argument with her about what had occurred?‑‑‑No, that argument came the following morning.”
And following:
“In the argument, did she make reference to whether she had taken any drugs?‑‑‑Yes, she had told me that she had taken two velarium and a Valium the night before and said that it was impossible for her to be awake.
When you had sex with her, you said that she was awake. What gave you that impression?‑‑‑She – the positions that – again, I’m sorry for sounding vulgar – the positions that we would – we were performing, there was no way that she could not have been awake.
Did you make any observations about her eyes?‑‑‑Her eyes were open. She – again, this should’ve been a flag that something else was happening – she had called out another man’s name. I – I ignored it but I – I was positive that she was awake.”
The defendant categorically denied that he had sex with his wife without her consent. Thereafter he gave evidence in respect of each of the alleged incidents and his evidence, like that previously referred to, was precisely given and I find completely believable.
The defendant also gave evidence about a conversation with his father and of advice he was given by his father in dealing with disputes in a matrimonial relationship. In his evidence he said:
“And tell us about what occurred in that conversation?‑‑‑I told him about the difficulties that we were having in the marriage and that things were rough and breaking down. And my dad said to me, just bluntly, with – very typical of him, was, “Just apologise for everything.” He’s been married to my mother for – since the dinosaurs roamed the earth, virtually, and they have a very happy marriage. And he said that every time that he’s in trouble with my mother, that he just apologises for everything, and, “Even if you don’t think that you’ve done anything wrong, apologise for it all.”
This conversation was confirmed as having occurred by the defendant’s father, as well as confirming the nature of the discussion. This is significant because that advice seems to be reflected in the email sent by the defendant to the complainant on 26 September 2018. It is suggested that the email includes an admission relevant to the charges faced by the defendant. I am satisfied however that that is not the case.
This is because what is communicated by the defendant in that email is far more indicative of the defendant’s plea to his wife for forgiveness of a multitude of matters, identified by her as, ‘issues in the relationship’ or ‘failings on the part of the defendant’. It includes his statement as to things that he is willing to do to try and save the marriage and an apology for whatever may have been her concerns. It is noteworthy that one of the things that he is sorry for is, “having sex with you while you were asleep. I swear I thought you were awake.” That reflects exactly the position taken by the defendant in this trial and has remained a constant during all of these proceedings.
Additionally, and I find it to be significant here, is the fact that the defendant is also sorry for accusing the complainant of having an affair. He is sorry for the accusation having been made, though he had every reason to believe, as now turns out to be the truth, that the complainant was having an affair.
That is one real indication of the truthfulness of the defendant and the complainant and it is the complainant who was untruthful. The statements made in the email by the defendant, especially in relation to the apology for having sex with the complainant while she was asleep, was explained as a way to, “put the argument to bed.”
It was the defendant’s hope he said to, “end the argument, end the …dispute and move on.” That explanation has in my assessment a real ring of truth to it and I accept it as a truthful and genuine intention of the defendant.
I am satisfied that the email is nothing more or less than a cry from the heart of a person seeing a cherished relationship fall away, and making any attempt possible to rekindle that relationship.
As with the complainant, I was generally impressed with the honesty and reliability of the evidence of the defendant. However, I was much more impressed with the defendant’s evidence given in cross examination than I was with the complainants. I found the defendants’ answers to questions in cross examination to be well considered and more significantly, to be honest and true. It may be that the defendant has some greater confidence in his presentation because of his military career, but notwithstanding that confidence, I found him reliable and in particular, I accept his evidence in respect of each of the alleged counts.
The defendant’s explanation as to why he offered to sleep in separate beds, though there were no ongoing sexual relations, again rang true. He explained it was to give the complainant space without her leaving the house. I accept the defendant’s evidence also, in respect of the count relating to the alleged touching of the complainant’s vagina and the enquiry whether she had shaved her public hair. The defendant’s evidence that the complainant was talking in her sleep may be seen as the most difficult of the explanations to accept, but in light of my previous finding as to the truthfulness and reliability of the defendants evidence it is not, in my view, beyond what could have been accepted as having occurred and this then raises a doubt as to what the complainant alleges.
Overall, the defendant was an impressive witness giving evidence, in my assessment, in an open and honest manner.
Additionally, the defendant called evidence from his father Mr C and his mother Mrs C. I found each of those witnesses to be cooperative and honest. Mr C’s evidence related only to the advice he had given to his son and, as I said previously, it was corroborative of the defendant’s evidence.
Mrs C’s evidence related to what she says was said to her by the complainant on 26 October 2018. What she recounted as being said to her was significantly different to the evidence of the complainant.
Mrs C was cross examined about the quality and clarity of her recollection of what was told to her by the complainant and she acknowledged that some parts were hazy but others were quite clear including that the complainant told her that the defendant had raped her five times in the past couple of months and that the defendant had shoved his fist into her vagina.
I am satisfied that Mrs C’s evidence on those two points relating to what she says was said to her is an accurate and truthful account of the conversation.
That concluded the defendant’s case and what followed was discussions with the Counsel as to any special directions. Those special directions included:
· The defendant giving and calling evidence;
· Motive to lie;
· Mistake of fact in respect of count 1;
· Markuleski direction; and
· Preliminary complaint.
Additionally, Counsel for the defendant sought a Robinson direction which was opposed by the Crown. I indicated that such a direction would be appropriate.
There was also arguments about evidence of a distressed condition of the complainant, though I am not satisfied that there is such evidence as would give rise to that direction being necessary, though I am mindful of my need to consider that matter.
Also, that there should be a direction relating to the privilege against self-incrimination, as well as the fact that the Court was closed and that the complainant was a special witness.
Accordingly, I have reminded myself of the various directions contained within the Bench Book, where not already mentioned earlier, noting them to include the following:
1) The evidence of the complainant was taken on 13 and 14 July 2020.
2) An order of the court permitted her evidence to be taken in the way it was. It is not uncommon for evidence to be given in this way.
3) The complainant was in a room separate from the courtroom. Her evidence was given by the use of an audio-visual link between the room in which she was seated and the courtroom.
4) Her evidence was recorded as it was given.
5) All non-essential persons were excluded from the courtroom itself.
6) The defendant was present in the courtroom, but he was positioned in such a way that the complainant could not see him on the monitor or at all while she gave her evidence.
7) The procedure I have just outlined for taking the complainant’ evidence conformed with the court order.
8) In these circumstances:
·I must not draw any inference as to the defendant’s guilt from the order.
·The probative value of the evidence the complainant gave is not increased or decreased because of the order.
·To say that the probative value of the evidence is not increased or decreased because of the order, means it is not better evidence, or worse evidence, than if the evidence had been given before you from the witness box.
·That evidence is not to be given any greater or lesser weight because of the order.
The court was closed when the complainant’s evidence was given. What that meant is that anyone not essentially involved in the conduct of the trial were excluded. There is in Queensland a rule of procedure that does not only apply in this case but in all cases of a sexual nature. It does not matter if it is a male or female or adult or child – in all cases of a sexual nature we have a rule which makes it mandatory that the complainant give evidence in a closed court so that anyone not involved in the trial are excluded. So I must understand that is a rule which we have in trials of this sort. It is not a special rule only for this case, and it has nothing whatsoever to do with the defendant’s guilt and I must not draw any inference as to the defendant’s guilt because of this.
In this case, there is evidence of the complainant’s preliminary complaints to DJC, Mrs C, Senior Constable W, Ms A and Ms M on various dates. I have already detailed in these reasons the evidence of each of those witnesses that I find relevant in my assessment in this matter.
That evidence may only be used by me as it relates to the complainant’s credibility. Consistency between the accounts of those witnesses of the complainant’s complaint and the complainant’s evidence before me is something I may take into account as possibly enhancing the likelihood that her testimony is true.
However, I cannot regard the things said in those out-of-court statements by the complainant as proof of what actually happened. In other words, evidence of what was said on that occasion may, depending on the view I take of it, bolster the complainant’s credit because of consistency, but it does not independently prove anything.
Likewise any inconsistencies between the account of those witnesses of the complainant’s complaint and the complainant’s evidence may cause me to have doubts about the complainant’s credibility or reliability. Whether consistencies or inconsistencies impact on the credibility or reliability of the complainant is a matter for me.
Inconsistencies in describing events are relevant to whether or not evidence about them is truthful and reliable, and the inconsistencies are a matter for me to consider in the course of my deliberations. But the mere existence of inconsistencies does not mean that of necessity I must reject the complainant’s evidence. Some inconsistency is to be expected, because it is natural enough for people who are asked on a number of different occasions to repeat what happened at an earlier time, to tell a slightly different version each time.
Both the complainant and her mother, DCJ, directed to me that they did not wish to answer some questions put to them by counsel, because to do so might incriminate them. The fact that they successfully made that claim for privilege cannot assist me in my deliberations. It is not evidence of anything. Nor were the questions which were asked of them evidence, and there are no answers to them which could constitute evidence. I cannot infer anything, either as to evidence or the complainant and DJC’s credibility, from the fact that a claim for privilege was made, and it would be wrong for me to speculate about why it was made.
I will need to scrutinize the evidence of the complainant with great care before I could arrive at a conclusion of guilt. That is because of the difference between the accounts the complainant has given; and the concerns that arise with respect to whether the complainant was or was not taking Valium at the time of the alleged offending. I should only act on that evidence if, after considering it with that warning in mind, and all the other evidence, I was convinced of its truth and accuracy.
In cross-examination, the complainant was asked questions concerning a motive for her to lie in her account concerning the conduct of the defendant. If I reject the motive to lie put forward on behalf of the defence, that does not mean that the complainant is telling the truth. It is for the prosecution to satisfy me that the complainant is telling the truth; for it is the prosecution’s burden to satisfy me beyond reasonable doubt of the guilt of the defendant. If I am satisfied beyond reasonable doubt that the complainant did not consent to any of the offending but particularly count 1 then there is another matter I must consider.
Our law provides that a person who does an act under an honest and reasonable, but mistaken belief in the existence of any state of things is not criminally responsible for the act to any greater extent than if the real state of things had been such as the person believed to exist.
In the context of this case that means that, even though the complainant was not in fact consenting, I must consider whether the defendant, in the circumstances, honestly and reasonably believed that the complainant was consenting?
A mere mistake by the defendant is not enough, the mistaken belief in consent must have been both honest and reasonable. An honest belief is one which is genuinely held by the defendant. A defendant’s belief is reasonable, when it is one held by the defendant, in his particular circumstances, on reasonable grounds.
The complainant says that she did not consent to intercourse with the defendant in count one. If I accept the complainant’s evidence that she was asleep, I might think that the defendant could not have honestly and reasonably believed the complainant was consenting.However, I must remember however the onus of proof. It is not for the defendant to prove that he honestly and reasonably believed the complainant was consenting but for the prosecution to prove beyond reasonable doubt that the defendant did not honestly and reasonably believe that the complainant was consenting.
Accordingly if I find that the complainant wasn’t in fact consenting, I must ask myself “can I be satisfied beyond reasonable doubt that the defendant did not have an honest and reasonable belief that she was consenting?” If the prosecution have satisfied me beyond reasonable doubt that the defendant did not have such a belief I must find the accused guilty. If I am not so satisfied, even though the complainant was not consenting, I must find the defendant not guilty
Separate charges are preferred. I must consider each charge separately, evaluating the evidence relating to that particular charge to decide whether I am satisfied beyond reasonable doubt that the prosecution has proved its essential elements. I will return separate verdicts for each charge. The evidence in relation to the separate offences is different, and so my verdicts need not be the same.
If I have a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one or more counts, whether by reference to her demeanour or for any other reasons, that must be taken into account in assessing the truthfulness or reliability of her evidence generally.
My general assessment of the complainant as a witness will be relevant to all counts, but I will have to consider her evidence in respect of each count when considering that count. It may occur in respect of one of the counts, that for some reason I am not sufficiently confident of her evidence to convict in respect of that count. A situation may arise where, in relation to a particular count, I get to the point where, although I am inclined to think she's probably right, I have some reasonable doubt about an element or elements of that particular offence. Now, if that occurs, of course, I would find the defendant not guilty in relation to that count. That does not necessarily mean I cannot convict of any other count. I have to consider why I have some reasonable doubt about that part of her evidence and consider whether it affects the way I assess the rest of her evidence, that is whether my doubt about that aspect of her evidence causes me also to have a reasonable doubt about the part of her evidence relevant to any other count.
Having reminded myself of those many specific matters I am mindful also of the submissions made by Counsel for the defendant and for the prosecution.
Mrs Grant submitted that the defendant was a devoted family man willing to do anything to save his marriage. She emphasises that there was no allegation of sexual misbehaviours until June 2018 and that ultimately I would find that the alleged rape and sexual assaults did not occur.
She emphasised in respect of count one, sexual intercourse occurred but that it was not rape and that the balance of counts two to six were completely made up. As she submitted they were ‘lies by a liar, told to support a break up’. She specifically referred to the evidence as it fell and of the complainant’s intention to get what she wanted, even if she had to be a “cunt.” She submitted that these allegations were made to get her way.
She then addressed at length the complainant’s evidence emphasizing the need to carefully scrutinize her evidence as it would give rise to real doubt as to the complainant’s honesty and credit. The inconsistencies between the complainants evidence and the various preliminary complaint witnesses was emphasised as giving rise to concern as to the complainant’s honesty and reliability and raising directly whether the Crown, on that evidence, was able to achieve the high burden of proof required of beyond reasonable doubt.
Mrs Grant referred to the defendant’s evidence and the reliance that could be put on that, being evidence which she said was honest and compelling and ultimately submitted that there was no basis upon which I could be satisfied beyond reasonable doubt of the defendant’s guilt and that I should acquit.
Mr Dunkerton emphasised three points, detail, dates and control. He spoke of the significant amounts of detail given by the complainant in respect of each of the counts and emphasised the fact that the complainant had told the defendant that she wanted to move out and that the marriage was over. He asked rhetorically why, in that circumstance, would the complainant instigate sex with the defendant as he suggested in respect of count one. He argued that such an action by the complainant did not “stack up” and further emphasised that both the complainant and defendant recall the complainant saying, “what the hell.”
He argued that was clearly an example of the complainant not having agreed to the sexual relations and, in respect of any argument relating to mistake of fact, that such a statement runs counter to any suggestion that the complainant instigated sex, such that such a defence does not arise. Further, he noted the fact that the complainant acknowledged that there was consensual intercourse thereafter which bolsters the truthfulness of the complainants account.
Thereafter, he addressed the detail given in respect of each of the other counts and noted the fact that the complainant did not embellish her evidence but rather made concessions at appropriate times.
Mr Dunkerton also accepted that there appeared to be various inconsistencies but noted the complainants proper acceptance of such matters and suggested that such a stance reflected positively upon her credibility. He acknowledged that the complainant had lied to the defendant regarding whether she was having an affair and asked that the situation in the relationship at the time be considered and also noted the frank admission made in the witness box. He strongly submitted that those concessions were indicative of her honesty, credibility and reliability.
He explained the nature of the holiday photograph and apparent calm on the weekend trip to Cairns as indicative of nothing other than the complainants wish to protect the children.
Insofar as dates were concerned, he noted the fact that there was significance in the complaints being made prior to the commencement of family law proceedings and that any suggestion therefore of a motive to lie, to get her way and go to Sydney, was just a red herring. He also noted the significance of the dates of attendances with the psychologists, Ms A and Ms M, well prior to any suggested family law actions.
He also emphasised the differences between the personalities of the complainant and the defendant, suggesting that the complainant was rather naïve whilst the defendant was controlling, being in a position of authority with the military, and that he had brought that across to his home life which, as Mr Dunkerton concluded, led to him raping the complainant.
In the end I must consider all of the evidence that was presented, being especially mindful of the directions that apply and whether I am then satisfied beyond reasonable doubt of the guilt of the defendant, in respect of each of the counts. Additionally, in respect of count one, I must be mindful of whether the defendant, if he did have sex with the complainant without her consent, held an honest and reasonable but mistaken belief that he had such consent.
It is a case where the credibility and reliability of the evidence, primarily of the complainant and the defendant, must be weighed against each other. However, it is not as the directions show, a question of me making a choice between their evidence, considered, of course, in the light of other evidence presented. Rather I am still required to be satisfied on the prosecution’s evidence beyond reasonable a doubt, despite the sworn evidence of the defendant and his witnesses.
There is here some real inconsistencies between the complainant’s evidence and that of the preliminary complaint witnesses. That must, of course, be considered in light of whether it raises doubts as to the credibility and reliability of the complainants evidence. I do have some concerns of that nature relating particularly to the complainants use of Valium at the time of at least count one, as well as of other real discrepancies between what Ms A and Ms M say they were told, especially in respect of the frequency of the alleged offending and the nature of the acts.
There is also real inconsistency between what Mrs C says she was told by the complainant of the offending and what the complainant says occurred.
Such inconsistencies do give rise to doubts about the reliability of the complainant’s evidence and is an important consideration in respect of this matter.
There is also consideration of whether the complainant’s evidence is reflective of a motive to lie. She wanted, upon separation, to move with the children to Sydney. The defendant would not agree to that unless he also had the opportunity to travel and work in the same region. Upon separation he determined not to leave his employment with the ADF in Townsville and told the complainant that he did not agree to her travelling away with the children. The complainant indicated clearly her desire to get what she wanted and if necessary, by being a “cunt.” The complainant denies any such motivation as influencing her complaint in this matter and whilst I do not find that the complainant has lied, I am unable, on the evidence presented, to find that such a motivation is not present, in some limited way.
Ultimately, it remains the prosecutions obligation to satisfy me that the complainant is telling the truth and to satisfy me beyond reasonable doubt of the guilt of the defendant. In this case the majority of the counts, two to six, are of a character that I could term as being diametrically opposed. The complainant says the events occurred and the defendant denied them in their entirety. Count one is different in that the sexual intercourse in acknowledged but the issue is whether there was or was not consent.
As I said earlier in these reasons, both the complainant and the defendant were generally impressive witnesses. I cannot be satisfied therefore that the complainant or defendant is telling the truth and the other is untruthful. It may be that the complainant is truthful, but in my weighing of the evidence, I am not satisfied beyond reasonable doubt of the defendant’s guilt in respect of any of the counts one to six. Accordingly, I find the defendant not guilty in respect of each of the counts one, two, three, four, five and six.