DISTRICT COURT OF QUEENSLAND

CITATION:	R v GMB [2020] QDC 145	
PARTIES:	R
v
GMB
(Defendant)	
FILE NO/S:	58/19	
DIVISION:	Criminal	
PROCEEDING:	Trial	
ORIGINATING COURT:	Childrens Court at Ipswich	
DELIVERED ON:	26 June 2020	
DELIVERED AT:	Ipswich	
HEARING DATE:	22 and 23 June 2020	
JUDGE:	Lynch QC DCJ 	
VERDICT:	Count 1: Not guilty
Count 2: Not guilty
	
ORDER:	1.	GMB is formally discharged in respect of indictment number 58 of 2019.
	
CATCHWORDS:	CRIMINAL LAW – TRIAL HAD BEFORE JUDGE WITHOUT JURY – where the defendant is charged with two counts of rape – where the defendant elected to be tried before a judge without a jury pursuant to the Youth Justice Act 1993 (Qld) – where the trial proceeded before a judge alone – whether the Crown has proved beyond reasonable doubt that the defendant raped the complainant – whether mistake of fact was raised on the evidence

Cases 
R v Makary [2018] QCA 258
R v Caulfield [2012] QCA 204

Legislation
Criminal Code 1899 (Qld) ss 6, 24, 348, 349
Youth Justice Act 1993 (Qld) ss 102, 103
Evidence Act 1977 (Qld), s 21A	
COUNSEL:

SOLICITORS:	A Robinson for the Crown
S Harburg for the Defendant
Office of the Director of Public Prosecutions for the Crown
Quinn & Scattini Lawyers for the Defendant	

Proceedings
[1]	GMB is charged before the Children’s Court of Queensland at Ipswich on indictment  number 58 of 2019, with the following offences: 

Count 1:	That on the fourteenth day of July, 2018 at Walloon in the State of Queensland, GMB raped LXQ. 

Count 2:	That on the fourteenth day of July, 2018 at Walloon in the State of Queensland, GMB raped LXQ.

[2]	On 22 June 2020, an election was made pursuant to s 103 of the Youth Justice Act 1992, for trial of these charges before a judge sitting without a jury.  When arraigned before me on 22 June 2020, the defendant entered a plea of not guilty to both counts. 

[3]	For the reasons that follow, I have reached the conclusion that the defendant should be found not guilty of each count.

Evidence

[4]	In all, 5 witnesses, gave oral evidence. In addition, the following were admitted as exhibits:

1.	Admissions
2.	Diagram of layout of the house
3.	Diagram of layout of bedroom
4.	Photograph of the bed from doorway 
5.	Photograph of bedroom
6.	Photograph of the desk
7.	Photograph of the grey jumper
8.	Photographs of clothing  
9.	Photograph of underwear
10.	Photograph of underwear that has a piece cut out
11.	Outline of submissions on behalf of the Prosecution
12.	Outline of submissions on behalf of the Defendant

[5]	The admissions of fact contained within Exhibit 1 were as follows:

1.	GMB has an uncircumcised penis.
2.	Annexure A called “Summary of Scientific Evidence” contains the relevant scientific evidence.
3.	LXQ’s mobile telephone number for the relevant period was (number provided).
4.	GMB’s mobile telephone number for the relevant period was (number provided).
5.	A summary of the relevant SMS text messages of mobile service numbers (number provided) and (number provided) are attached as Annexure B.
6.	Annexure B date and time is in Greenwich Mean Time (GMT) which is 10 hours behind Australian Eastern Standard Time (AEST).

[6]	Annexure A contains a summary of the results of scientific testing of LXQ’s underwear, seized from her bedroom on 17 July 2018. Testing of a tape lift taken from inside the waistband, and samples from fabric in the front, all showed the presence of DNA, the result being 100 billion times more likely to have occurred if the defendant had contributed DNA than if he had not. A presumptive screening test for blood, performed on fabric from the inside front of the underwear, provided a positive result. 

[7]	Annexure B contains 57 pages detailing text messages exchanged between LXQ and others over the period from 12:29:43 hours (AEST), on 8 July 2018, through to 16:01:54 hours (AEST), on 17 July 2018. There are over 3,300 SMS text messages listed, all of which show the time the message was sent, identify the sending and receiving parties, and include the detail of the text. Relevant text messages will be referred to later in these reasons. 

[8]	The oral evidence included the following.

LXQ

[9]	LXQ’s evidence was taken by way of an audio visual link because of an order made pursuant to s 21A(2)(c) of the Evidence Act.  It was expected LXQ would give evidence in person in the court room, however, on the morning of the trial it emerged she had been given a direction under the health regulations to self quarantine because she had visited the State of Victoria. She was therefore not permitted to attend the court house. In the circumstances, the application that she give evidence via video link was not opposed. LXQ gave evidence from her closed bedroom and with no other person present in the room in which she was located. The court room was closed whilst LXQ gave evidence. 

[10]	LXQ was born on 1 June 2000. She first met the defendant in person on 12 July 2018. She described herself then as short, skinny and small, and weighing about 50-51 kilograms. She described the defendant as tall, slim build, brown hair, olive skin, and brown eyes. LXQ was then aged 18 and she knew the defendant was then aged 16.  LXQ then lived at Forest Lake with her mother, father and older brother. LXQ said the defendant lived at Walloon with his mother, his mother’s boyfriend, the boyfriend’s son, and the defendant’s sister. 

[11]	LXQ said she first communicated with the defendant on line in around June 2018, via Instagram, Snapchat, and text message. On 12 July 2018, they met in person at the car park of a restaurant at Indooroopilly. They again met up on 13 July 2018, when the defendant and his friend picked her up from her house. Enroute to the defendant’s house they stopped at a petrol station, at which time the defendant moved to the back seat to sit next to the complainant, and they kissed. They arrived at the defendant’s house at around 6 or 7.00pm.

[12]	LXQ said when they arrived she met the defendant’s mother, her partner, the defendant’s sister, and the sister’s boyfriend. LXQ then sat in the defendant’s bedroom with the defendant, his friend, the defendant’s sister and her boyfriend, and listened to music. LXQ said the males started smoking “weed” and the defendant offered her some but she declined. LXQ said eventually she and the defendant were alone in the bedroom and the defendant’s mother brought dinner in to them. She said the defendant was falling asleep and couldn’t eat properly because he was “stoned”. After dinner the others came back to the bedroom and they prepared to go to Willowbank car races. LXQ got changed into warmer clothes. She said they travelled to the car races in two vehicles and eventually returned to the defendant’s house at about 9 or 9.30pm. LXQ said the males, including the defendant, again smoked “weed” in the defendant’s bedroom.

[13]	LXQ said eventually the others left the room, leaving her and the defendant alone. She said this was around 11.00pm. She said she got out of the jumper and tights she had been wearing and they turned out the lights and got into bed. She said they were kissing and the defendant asked her for a “blowjob” to which she agreed, and LXQ performed oral sex on the defendant for a short time. LXQ said the defendant repeatedly asked “Can I come in your mouth?” but she refused. She said they were then kissing, the defendant was asking to have sex, she said she wanted it, and they had sexual intercourse for about five minutes. LXQ said at first she was on top of the defendant but then they switched and the defendant was on top. LXQ said the defendant asked to come inside her but she refused and the defendant withdrew and ejaculated on her lower stomach. She said she got mad and asked for something to wipe it up and the defendant gave her a t-shirt that she used to wipe herself. LXQ said she then got out of bed, put her underwear on and got back into bed. LXQ said she then slept for around two hours.

[14]	LXQ said when she awoke, the defendant was touching her on the vagina, breasts, arms and thighs and “humping” her from behind. She said she could feel he had an erection, she asked if he was horny, and he replied “Yeah”. LXQ said she told the defendant “Well I don’t want to – like, I’m tired, I want to sleep.” She said the defendant was “forcefully trying to drag my tights down”. She said she was then on her back and the defendant got on top of her and was “trying to drag my tights down” and was “dragging my tights down”. She said she told the defendant “No, I don’t want it, I’m not in the mood”, he persisted, and “got them down and dragged my underwear down as well”. She also described that the defendant was “dragging my tights down” and she “just kept trying to pull them up”. She repeated “he was pulling them down. I tried to keep pulling them back up”. She said she kept saying “no, I don’t want it” and was grabbing the defendant’s wrists to stop him. She said the defendant was dragging his knuckles against her skin which was painful. She said the defendant “pulled down my tights” and then “forcefully fingered me”, she could not say with how many fingers, it was painful, and lasted about a minute. LXQ said she repeatedly said “Stop” and also tried to pull the defendant’s hand to remove his fingers from her vagina, and tried to push him away. When the defendant removed his fingers, LXQ told him “I can’t believe you would do that. I told you stop and you didn’t”.

[15]	LXQ said she saw the defendant’s face and he appeared angry. LXQ said the defendant was on top of her and removed his erect penis from his underwear and forced it inside her vagina. She said the defendant had sexual intercourse with her for two or three minutes. She said the defendant again ejaculated on her lower stomach and she wiped it off with the blanket. During this the defendant had his hands on her biceps so that she was pinned to the bed. LXQ said she repeatedly told the defendant to “Stop. Get off me.” LXQ said she told the defendant “I hate you so much after that.” LXQ said she then got out of bed and checked her phone and saw she had missed calls from her parents. She said she messaged them to say “Sorry, I fell asleep”, turned her phone off, and went back to bed. LXQ said at that time she did not have any wi-fi or data and so could not access any social media. LXQ said she again fell asleep.

[16]	LXQ said she next awoke at about 5.00am and checked her phone. She said she could hear that someone else was awake in the house and moving around. LXQ said that during the entire night the defendant was dry humping her and rubbing his penis against her, although he was wearing clothes. She said the defendant was cuddling her and asking for sex but she repeatedly said “No” and “I told you I don’t want to do it”. She said when she was on her back the defendant pulled her pants down and she told him to stop. LXQ said she was “being loud” and said “Stop. I don’t want to do it anymore” and the defendant put his hand over her mouth and told her “Shush”. She said the defendant was “forcefully pulling my tights down again” and then he put his penis inside her. She said the defendant had sex with her for about one or two minutes, she was trying to push him off, and he did not ejaculate. LXQ said she then “pulled her tights and underwear up” and pulled the blanket over her. LXQ said she again fell asleep. 

[17]	LXQ next awoke around 8 or 8.30am and again checked her phone. The defendant also woke up. She said the defendant asked her to stay another night but she said she had plans. LXQ said she messaged her friend JWT and complained of being sexually assaulted or raped and asked if she would pick her up. LXQ said she asked the defendant for his address so that her friend could pick her up but the defendant refused to tell her unless she gave him a blow job or had sex with him. LXQ said that while the defendant was still in bed she accessed his phone and found the street name and then messaged her friend the address. LXQ said that eventually her friend arrived and she left the house. LXQ said she told her friends in the car that she was “sexually assaulted”, the defendant “force fingered me”, and “put his dick inside me”. She said one of her friends described it as rape. LXQ said she also told her friend OSD the defendant force fingered her without consent, tried to pull her tights down, put his penis inside her when she said no, was holding her biceps, and covered her mouth. LXQ said she also told her brother that she was sexually assaulted without giving detail, and also told a friend HIY she’d been raped.

[18]	LXQ said her brother told her mother what occurred and her mother called police. LXQ said a female police officer then came to her house and she told that officer what happened and the officer wrote it down. She also provided her clothes to the officer. She later provided her mobile phone to police to examine. LXQ also provided a DNA sample to police.

[19]	LXQ acknowledged that she took a bag with a change of clothes with her when she went to the defendant’s house on 13 July 2018. At first LXQ denied it was her intention to stay the night, saying she didn’t know if she would stay, and took the change of clothes just in case. However, after being referred to text messages sent between her and the defendant over the period from 8 July through to 13 July, LXQ agreed she intended to stay the night and went to his house intending to have sex with the defendant. The contents of some of these text messages were overtly sexual. 

[20]	LXQ said she had planned that her friend JWT would drive her to the defendant’s place but that changed when JWT had to work. As a result LXQ arranged with the defendant that his friend would pick her up. LXQ acknowledged that in messages, the defendant asked if she was allowed to stay at his place the night and she replied she was. LXQ admitted that was in fact not true and that she’d told her parents only that she was going for dinner. LXQ said she had previously gone out not telling her parents where she was and not come home on time. She was shown a number of messages from 9 July, which demonstrated she had been in trouble with her parents for not telling them of her movements, and she acknowledged that had occurred. LXQ also acknowledged being sent a series of messages on the night of 13 July by her parents, her brother, a person saved in her phone contacts as “C”, and her friend JWT, all concerned about where she was. LXQ admitted she eventually replied to these people saying she was okay.

[21]	LXQ said she and the defendant had been communicating via Instagram and eventually exchanged phone numbers, then sent each other text messages. She said the text messages were sent from 8 July 2018. After that time, she said they sent each other kiss emojis and “x” symbols to represent kisses. She was shown text messages and acknowledged the defendant had asked her on 8 July whether she was talking to other males and she replied she was not. LXQ admitted that was untrue. LXQ acknowledged she was also sending love heart emojis and kisses, expressing her love for, and exchanging texts everyday over this period, with the person referred to as “C”. In evidence-in-chief, LXQ said she could not recall who that person was, later she said it was “Colin”, and denied the suggestion it was someone called “Christian”. LXQ said she did not regard “Colin” as her boyfriend although they “did have a thing for a while”. In a text message (number 38855) sent on 14 July 2018, LXQ referred to “C” by the name “Christian”.

[22]	LXQ said she did have access to her mobile phone over the period she was at the defendant’s house and used it to send messages to people but acknowledged she did not raise the alarm until later the next morning when she messaged her friend JWT. LXQ also said she knew there were others in the house but she did not alert any of them or call out for help. She said she fell asleep after each occasion she was raped. LXQ acknowledged in text messages she first complained to JWT she was “sexually harassed”, next complained to OSD she was “sexually assaulted” and it was OSD who described what occurred as “rape”. LXQ said she did tell OSD that she first had consensual sex with the defendant. LXQ also accepted that in messages she told “C” the defendant had “practically forced me to go there”, which was untrue. She also admitted a message she later sent “C”, claiming she had been “scared” to text him during the night, was untrue. 

[23]	LXQ acknowledged speaking with the uniform police officer who came to her house and said she told her “everything” and it was the truth. It was suggested to LXQ she did not tell that officer there was an act of sexual intercourse straight after the forced fingering and she replied “No because we went to sleep.” When then asked whether or not there was sexual intercourse after the forced fingering, LXQ said “Wait, wait, no, sorry, yes, there was yes, there was.” LXQ denied that giving evidence in court was the first occasion she had told anyone there were two acts of sexual intercourse and claimed she had told OSD, JWT and police officer Dedman (Tongiatama).

[24]	It was suggested to LXQ she told officer Tormey, that after the forced fingering she went to sleep and woke up at 3 or 4.00am, and she was cuddling with the defendant, and was okay with that. LXQ denied she was cuddling the defendant and said she didn’t know why she would have said that and didn’t recall if she said that. It was suggested to LXQ she told that officer there was then an act of sexual intercourse, after which the defendant kept fingering her. LXQ replied “No. He was just – he came on me and then force – put his penis inside me and that’s when he came again on my lower stomach, and that was it.” She was asked whether she was describing events after the second time she woke up and she said “Yes. So this is the second time that he’s done – done it without my consent.”

[25]	It was also suggested to LXQ that she told the officer who visited her house that she texted her friend JWT to pick her up when the defendant left the room. LXQ accepted that was what she told the police officer and it was true. She acknowledged her version in evidence as to this was not true. LXQ acknowledged providing a signed statement to police officer Dedman (Tongiatama) on 17 July, and said she did her best to provide an accurate account of events. She acknowledged she did not say in that statement that she had given the defendant a hickey. LXQ admitted she had given the defendant a hickey and forgot to say that in evidence. LXQ also agreed the version in the statement describing consensual sexual intercourse made out that she was a very reluctant participant whereas the truth was that she consented freely. LXQ agreed she told the prosecutor in conference before the trial that she refused the offer to smoke “weed” by saying “No, I don’t do that” which was not then true.

[26]	In the course of defence counsel putting instructions to LXQ as to what it was alleged occurred, LXQ again described consensual sexual activity occurring. She said she performed oral sex on the defendant, they then had sexual intercourse with her on top, then with the defendant on top, and that ended when the defendant ejaculated on her stomach. LXQ said the defendant gave her a shirt and she said “Yes. So I wiped it off, put my tights back on, and then we both went to sleep.” LXQ denied the suggestion that the only sexual activity was consensual and occurred before they first went to sleep. LXQ denied the suggestion that the non-consensual acts she described did not occur at all. LXQ also denied the suggestion that the defendant slept through the night until about 8 or 8.30am. 

[27]	LXQ was asked whether she put her underwear and tights back on after each occasion and replied “I only remember putting back my undies on, the first time it happened. I don’t think – I think I just put my tights on when I woke up around 8-8.30. That’s when I put my tights on.” LXQ was asked why she did not raise the alarm when sending text messages during the night and replied that she didn’t intend telling anyone and felt like she was too scared. Asked why she did not alert anyone in the house she replied she thought they would not believe her. LXQ said she did not tell police officer Dedman (Tongiatama) on 17 July 2018 that she gave the defendant a hickey. She said she told her in a statement a year later because she forgot to tell her on the day. 

OSD

[28]	OSD was born on 11 September 2000. OSD confirmed her phone number, as at July 2018, was as per Annexure B. She was a friend of LXQ and had known her since primary school. She communicated with LXQ via text message on 14 July 2018 and later in person. OSD said LXQ told her she had been to a guy’s place the night before and he was really aggressive towards her, joking around being aggressive, then things got heated, she woke up to him pulling her underwear down with his fists and forcing sex on her, she tried to say no and he kept going. She said LXQ also said he asked if he could come in her mouth, she said no, and he did get some come on her underwear. OSD said LXQ did not tell her she had consented to some sexual activity with the male.

BVC

[29]	BVC is the older brother of the complainant. The evidence of BVC was taken via audio visual link. Because he was from the same household as his sister, application was made to receive his evidence in that way. The application was not opposed. BVC gave evidence from his bedroom via video link with no other person present in the room in which he was located.

[30]	BVC was born on 25 October 1997. He was living in the same house with LXQ and their parents in July 2018.  BVC confirmed his phone number was as per that identified in Annexure B. He said on 14 July 2018, he sent text messages to his sister in the early morning but he was asleep before she replied. BVC said on 15 July 2018, he spoke to his sister in the bathroom at their house. BVC said he asked her what had happened and she replied that she had been raped. He said she told him the guy’s first name.

Cara Tormey

[31]	Ms Tormey is an investigator with the office of the Public Guardian. She was a police officer working from Mount Ommaney Station as at 17 July 2018. On that night she went to LXQ’s home address and spoke with her and made contemporaneous notes of what she said happened. She also seized clothing from LXQ. 

[32]	Ms Tormey said she was told by LXQ of events earlier in the evening and then she described what occurred in the bedroom. She said LXQ told her the two were “kissing and stuff” and she was happy with that and described going to sleep. She said she woke up to text her mother and that was when the non-consensual sexual activity occurred. She said she had gone back to bed and she was force fingered and protested but then gave in. Her account included that she awoke again at about 3 or 4.00am, there was cuddling, and that was fine. She then described forced sexual intercourse, that after 10 minutes she pulled her pants up, and the defendant then kept fingering her. She also described that the next morning the defendant left the room and she texted her friend JWT to pick her up and told her friend she didn’t know where she was except she knew the street name. Ms Tormey said the sexual intercourse described by LXQ was all non-consensual.

Erin Maree Tongiatama (aka Dedman)

[33]	Ms Tongiatama is a Detective Senior Constable of Police stationed at Inala Child Protection Investigation Unit and the principal investigator. She said as part of the investigation she obtained phone records of LXQ and the defendant. Ms Tongiatama also arranged for DNA samples to be taken from LXQ and the defendant. Ms Tongiatama said on 17 July 2018 she went to the defendant’s residence with other police and spoke with the defendant and his mother. Photographs of the residence were taken. 

[34]	Ms Tongiatama said she took a statement from LXQ on 17 July 2018 and that on that day LXQ told her she had given the defendant a hickey. Ms Tongiatama acknowledged there was no mention of that in the statement and claimed that was an oversight. Ms Tongiatama said she saw the defendant had a hickey on his neck when she attended his residence after taking the statement from LXQ.

[35]	Ms Tongiatama acknowledged when providing the statement, LXQ told her that she didn’t leave the residence because she didn’t know the address or have any mobile reception or data. Ms Tongiatama said LXQ only described two instances of forced sexual penetration; one occasion being digital penetration and the other occasion being penile penetration. Ms Tongiatama confirmed LXQ did not tell her there were two acts of non-consensual sexual intercourse.

Alleged admission by defendant

[36]	The prosecution rely upon text messages sent by the defendant as evidence of a confession. The relevant text message is contained within an exchange of messages between LXQ and the defendant as follows: 

14/07/2018 9:38:11 (AEST)	Defendant:	What’s wrong 	
14/07/2018 9:44:57 (AEST)	Complainant:	Nothing you	
14/07/2018 10:01:11 (AEST)	Defendant:	Nothing	
14/07/2018 10:01:19 (AEST)	Complainant:	Right 	
14/07/2018 10:01:28 (AEST)	Defendant:	Love you	
14/07/2018 10:32:29 (AEST)	Complainant:	You don’t	
14/07/2018 10:32:48 (AEST)	Defendant:	I know	
14/07/2018 10:34:55 (AEST)
14/07/2018 10:35:00 (AEST)	Complainant:	See ? 
Then why say i 	
14/07/2018 10:35:09 (AEST)	Defendant:	Idk 	
14/07/2018 10:36:11 (AEST)	Complainant:	you know you practically sexually assaulted m	
14/07/2018 10:36:18 (AEST)		Bc I kept saying I didn’t want it	
14/07/2018 10:36:24 (AEST)		but you did it anyways	
14/07/2018 10:36:48 (AEST)	Defendant:	just forget everything 	
14/07/2018 10:37:35 (AEST)		Bc I don’t want to do this	
14/07/2018 10:38:17 (AEST)
14/07/2018 10:38:22 (AEST)		I did nothing wrong
😕	
14/07/2018 10:39:14 (AEST)	Complainant: 	you did	
14/07/2018 10:39:17 (AEST)		I said stop	
14/07/2018 10:39:20 (AEST)		but you didn’t	
14/07/2018 10:39:32 (AEST)	Defendant:	im sorry	
14/07/2018 10:41:10 (AEST)	Complainant: 	pls don’t	
14/07/2018 10:41:56 (AEST)	Defendant:	no	
14/07/2018 10:42:18 (AEST)		I shouldn’t of done it	

General principles

[37]	The prosecution bears the onus of proving each element of each charge beyond reasonable doubt. The elements of the offences are as set out below. The defendant has no onus of proof and is presumed to be innocent. GMB did not give or call evidence as is his right; no inference is drawn against him on that account. Because separate charges are preferred, it is necessary that I give separate consideration as to whether the elements of each offence are proved. Any doubt I have as to the reliability of the evidence of LXQ, relevant to either count, must be taken into account in respect of my assessment of her evidence regarding the other count. 

[38]	In this case there is evidence of preliminary complaint by LXQ to a number of persons. These include: JWT (by text message and in person), JWT’s friend WLP (in person), OSD (by text message and in person), BVC (in person), HIY (by text message), “C” (by text message), and Cara Tormey (in person). The relevance of these preliminary complaints is only as to the credit and reliability of the evidence of LXQ. The evidence cannot be regarded by me as evidence of the truth of the out of court statements. Depending upon the view I take of this evidence, the evidence may bolster the credibility of LXQ due to consistency, or alternatively detract from her credibility or reliability due to inconsistency.

[39]	In the course of cross-examination, it was suggested to LXQ that her claims the defendant inserted a finger or fingers into her vagina without consent, and inserted his penis into her vagina without consent, were untrue. LXQ denied those suggestions. The evidence showed LXQ was in trouble with her parents and perhaps others because she stayed overnight at the defendant’s place without telling them where she was. The evidence also showed LXQ was not the person who ultimately complained to police and that her mother did so. It follows the defence case is that LXQ’s evidence is untrue and that possible motive for her to have made a false complaint exists. In those circumstances it is necessary that I recognise, if I reject the possible motives for LXQ making a false complaint, that does not mean that LXQ is telling the truth. Any failure to prove a motive to lie does not mean that no motive exists.  Importantly, any failure to demonstrate a motive to lie is irrelevant to my assessment to LXQ’s credibility. In the event I reject the possible motives for LXQ to have lied, it remains a matter for my assessment whether LXQ’s account is truthful and reliable.

[40]	In this case the prosecution rely upon statements attributed to the defendant as being an admission or confession of guilt. In order to rely upon these statements as evidence of the defendant’s guilt of the charges, it is necessary that I am satisfied they were made, and that they are true. In this case, the evidence of the alleged confessional statements is contained in the text messages, and there is no dispute the statements were made by the defendant, or as to what they contained. However, it is in issue as to what was meant by the statements. In those circumstances, it remains for me “to determine whether or not the words amount to an admission and what weight, if any, the admission should be given.” In order to rely upon the statements as evidence of guilt, it is necessary that I be satisfied as to what they mean, and that they are a true statement of guilt. 

[41]	LXQ gave evidence from her bedroom; i.e. she was in a room remote from the court room and her evidence was given by audio visual link between that room and the court room. No other person was present in the room with LXQ when she gave evidence. At the time she gave evidence, all non-essential persons were excluded from the court room, however, the defendant was present in the court room but was so positioned that LXQ could not see him on the monitor or at all. The use of an audio visual link to take the evidence of a witness such as LXQ is the routine practice of the court for taking evidence of special witnesses in sexual offence cases. I do not draw any inference as to the defendant’s guilt because that measure was used. The probative value of LXQ’s evidence is not increased or decreased because that measure was used; i.e. her evidence was not better evidence, or worse evidence, than if given from the witness box. I do not give LXQ’s evidence any greater or lesser weight because that measure was used.

Particulars and elements of offences

[42]	In this case the prosecution have particularised the act or acts relied upon as the basis of each count as follows: 
Count 1: The defendant inserted a finger or fingers into the vagina of LXQ without her consent. 
Count 2: The defendant inserted his penis into the vagina of LXQ without her consent. 
 
[43]	Relevantly, pursuant to s 349 of the Code, 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 vagina of the other person to any extent with a part of the person’s body that is not a penis without the other person’s consent.

[44]	Carnal knowledge means sexual intercourse; i.e. penetration of the vagina by the penis, and pursuant to s 6 of the Code, is complete upon penetration to any extent. Pursuant to s 348 of the Code, consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent. Further, relevantly for this case and without limiting that definition, a person’s consent to an act is not freely and voluntarily given if it is obtained by force, by threat or intimidation, by fear of bodily harm, or by exercise of authority.
 
[45]	The elements of each offence of rape, as charged here, are:
Count 1: (digital penetration)	
1.	The defendant inserted his finger or fingers into the vagina of LXQ;
2.	That was without the consent of LXQ.   

Count 2:	
1.	The defendant inserted his penis into the vagina of LXQ. 
2.	That was without the consent of LXQ.

[46]	In proof of each count, the prosecution relies upon the evidence of LXQ as to sexual activity that occurred between her and the defendant during a night she stayed at the defendant’s house. LXQ described that she engaged in consensual sexual activity, including sexual intercourse, with the defendant in his bedroom. LXQ said she then slept for a couple of hours and after she awoke, the defendant forcefully removed her clothing and inserted a finger or fingers into her vagina, despite her protests and physical attempts to get him to stop. It is this conduct relied upon as the basis of count 1. LXQ said the defendant then had sexual intercourse with her without her consent; however, this allegation is not the basis of any charge. LXQ said after that act of intercourse, she again slept for a period of a few hours and awoke around 5.00am. She said the defendant again had sexual intercourse with her without her consent, inserting his penis into her vagina for a short period. Again LXQ said this occurred despite her protests and attempts to push the defendant away. It is this allegation that is the basis of count 2. LXQ said she stayed at the defendant’s house until around 8.30am when she was picked up by a friend.
 
[47]	The evidence of LXQ is capable in each instance of proving the elements of the charged offence. For count 1, her account if accepted, would show the defendant inserted a finger or fingers into her vagina without her consent. In respect of count 2, the evidence of LXQ, if accepted, would show the defendant inserted his penis into her vagina without her consent. The real issue in the case is whether the material evidence of LXQ should be accepted beyond reasonable doubt.

Whether mistake of fact raised on the evidence

[48]	An issue arises as to whether a potential defence under s 24 of the Code is raised on the evidence. It was common ground that, if raised on the evidence, the prosecution bears the onus of excluding that the defendant held an honest and reasonable but mistaken belief that LXQ consented to the charged acts. In R v Makary, Sofronoff P, in this context said:

It follows that before s 24 can arise for a jury’s consideration in connection with the issue of consent there must be some evidence that raises a factual issue about whether the accused believed that the complainant had a particular state of mind and also believed that the complainant had freely and voluntarily given consent in some way. Inevitably, that will require some evidence of acts (or, in particular circumstances, an omission to act) by a complainant that led the defendant to believe that the complainant had a particular state of mind consisting of a willingness to engage in the act and believed also that that state of mind had been communicated to the defendant, that is, that consent had been “given”.

[49]	As is plain from the account of LXQ set out above, she did not concede that she consented to any of the charged conduct. Her evidence was that when the defendant inserted a finger or fingers into her vagina she was verbally protesting, telling the defendant to stop, and physically resisting by attempting to grab his wrist and pull his hand away and by trying to push the defendant away. When the defendant inserted his penis into her vagina, she described telling him to stop, the defendant putting his hand over her mouth to quiet her, and her trying to push him off. The defence case, as suggested to LXQ, was that the acts relied upon as the basis of the charges simply did not take place. However, the defendant did not give evidence and LXQ rejected the suggestions put to her.

[50]	Counsel for the defendant submits that, notwithstanding that evidence, there remains a possibility the acts relied upon occurred, without the consent of LXQ, but that the defendant mistakenly believed she was consenting. The defence submitted the possibility of a mistake of fact is raised by the following evidence:

•	the prior arrangements for LXQ to attend the defendant’s house for the purpose of engaging in sexual intercourse;
•	consensual sexual intercourse took place earlier in the night;
•	LXQ waking to the defendant “dry humping her” and her asking if he was “horny”;
•	the fact that the defendant had earlier been smoking cannabis;
•	LXQ’s description that the forced fingering ended when she told the defendant to stop;
•	LXQ told a police officer that after the forced fingering she “gave in”;
•	LXQ’s text messages during the relevant period show she was not upset or distressed which might be consistent with her consenting to the sexual activity;
•	LXQ’s evidence that after the charged sexual activity she went back to sleep;
•	the defendant’s subsequent text message saying “I did nothing wrong”.
Arguably, to that list might be added the statement by LXQ to the police officer, that when she awoke after the forced fingering incident, and prior to the act of intercourse which is the basis of count 2, they were cuddling and she was fine with that.

[51]	Obviously, the fact of there being consensual sexual activity, including sexual intercourse, does not preclude that thereafter, either participant might exercise a choice to refuse to engage in further sexual activity. The submissions here seek to rely upon parts of the evidence of LXQ divorced from their proper context. That LXQ asked the defendant if he was horny, does not permit any inference that she was therefore consenting to what followed. LXQ said she asked the defendant if he was horny, but then immediately told him in unequivocal terms she was not interested and physically resisted his attempts to remove her clothing. Similarly, LXQ’s description that the defendant removed his fingers from her vagina as a result of her objections and struggles is not capable of showing he respected her wishes when she also described the defendant inserted his fingers against her protests and resistance. Also, in saying to a police officer she “gave in”, LXQ was referencing events after the forced fingering and before she went back to sleep. She did not relate that to any further sexual activity or either of the charged acts. And, LXQ’s description of acquiescence in cuddling was followed by her description of active resistance to sexual intercourse. That LXQ went back to sleep would seem no more a basis for a belief that she was consenting to events than would her staying in the house through the rest of the night. That she did not express to anyone in a message that she was upset, does not permit drawing a conclusion she was therefore happy and must have consented to whatever sexual activity occurred. Although there was evidence the defendant had smoked cannabis, the evidence did not indicate he was cognitively affected during the alleged acts of rape. None of this evidence raises the possibility the defendant held a mistaken belief LXQ consented to the acts alleged as the basis of the charges.

[52]	That leaves the text message sent by the defendant in response to LXQ’s accusation that he “practically sexually assaulted” her. The statement “I did nothing wrong” might, depending upon the circumstances, be capable of being regarded as indicating a belief as to a particular fact. However, in this case, there is no context to the statement which might demonstrate it was any more than a denial of the allegation. If the statement expressly referenced the defendant’s state of mind, or if it were accompanied by some acceptance of particular activity having occurred but maintained a denial of culpability, the position may be different. Here, the simple denial of responsibility is not capable of being interpreted as a belief that LXQ was consenting to the acts she alleged occurred. I conclude this evidence also does not raise the possibility of a mistaken belief that LXQ consented to the alleged acts. 

[53]	There being no other evidence that might raise the possibility of the defendant having a mistaken belief as to consent, I conclude s 24 is not raised in this case.

Consideration

[54]	The central issue in this case is as to the credibility and reliability of LXQ’s claims she was raped. As noted above, LXQ’s evidence, if accepted beyond reasonable doubt, is capable of proving the elements of each of the offences. She alleges the defendant inserted his finger or fingers into her vagina in circumstances where it was plainly obvious she was not consenting to his doing so. She also alleges that later that night, the defendant inserted his penis into her vagina, again in circumstances where it was plainly obvious she was not consenting to his doing so. However, in light of the evidence in this case, I have concluded I at least have a reasonable doubt whether those acts actually occurred. There are a number of features of LXQ’s evidence which lead me to this conclusion.

[55]	A number of inconsistencies as to the detail of events is obvious within LXQ’s account. Most fundamental is her description of an additional occasion that she was raped. In the version given to police officer Tormey, and detailed in her statement to police officer Tongiatama, LXQ described that the defendant had non-consensual sexual intercourse with her only once. The investigating officer Tongiatama charged only one offence of penile rape. The indictment charges only one such offence. Yet in evidence-in-chief, LXQ described two quite separate acts of non-consensual sexual intercourse; the first after the forced fingering, the second after she had then slept for a period of hours.  When cross-examined as to whether that occurred, at one point LXQ recanted from the allegation, before correcting herself and maintaining it occurred. LXQ also maintained she had given this version to those she spoke to, including her friends JWT and OSD. The evidence of what she told them did not support her claim. I do not accept the submission her evidence in this regard is not inconsistent, or that it might be explained as ordinary human experience, or that such a significant event might only be recalled years later. 

[56]	In evidence here, LXQ described only one occasion the defendant inserted his fingers into her vagina. However, LXQ told police officer Tormey that after the act of non-consensual sexual intercourse, the defendant penetrated her vagina with his fingers for a second time. In addition, when questioned about this, LXQ said that the sexual intercourse on that occasion ended with the defendant ejaculating. That is contrary to her evidence otherwise. Also, in evidence, LXQ denied any consensual cuddling, or acquiescence in cuddling, after the consensual activity earlier in the night. Ms Tormey’s evidence was that LXQ said after she awoke at 3 or 4.00am, she and the defendant were cuddling, with which she was fine, before the defendant engaged in forced sexual intercourse. I accept the accuracy of the account of Ms Tormey in circumstances where she made contemporaneous notes of what LXQ told her.

[57]	In evidence, LXQ said that after the consensual sexual activity, she “put my tights back on, and then we both went to sleep”. LXQ described that the non-consensual activity commenced when she awoke to the defendant touching her. She then described acts charged as part of count 1 occurred. Her descriptions included that the defendant was “forcefully trying to drag my tights down”, was “dragging my tights down”, that he “got them down”, that in doing so he was “dragging his knuckles on my skin, it was so painful”, “he pulled down my tights and underwear”, that “he was dragging my tights down and I just kept trying to pull them up”, and ultimately he “pulled down my tights and underwear”. For the event which is charged as count 2, LXQ’s description included that the defendant was “forcefully pulling my tights down again” and that after the sexual intercourse she “pulled her tights and underwear up”. The prosecution rely upon this detail as one of a number of features adding a “ring of truth” to LXQ’s account and indicating its reliability. However, in cross-examination, LXQ said that after first taking them off, she did not put her tights back on until she awoke at 8 or 8.30am. This inconsistency is of significance. If her latter version is accepted, this would show that LXQ’s repeated claims the defendant forcefully removed her tights despite her resistance is not an accurate memory of events. This suggests the possibility LXQ was deliberately attempting to enhance or embellish her version to promote its acceptance.

[58]	In similar vein, LXQ accepted the description of some events detailed in the statement she gave police officer Tongiatama was inaccurate. LXQ agreed the statement described her as being very reluctant to take part in the consensual sexual intercourse, whereas in truth, she had been a willing participant. In evidence, at first LXQ did not concede she planned to stay at the defendant’s house but ultimately admitted she went there intending to stay, taking a change of clothes for that purpose, and that she went there intending to have sex with the defendant. LXQ acknowledged she did not at first tell police officer Tongiatama she had given the defendant a hickey, and only did so a year later. Also, LXQ told police officer Tongiatama she did not have phone reception and said that was a reason she did not leave the defendant’s house during the night. She admitted that was not true and that she checked and used her phone at various times. LXQ also acknowledged that contrary to her evidence, she told the police officer she texted her friend to pick her up only when the defendant left the room; she said her version to the police officer was true. Again, these inaccuracies undermine the reliability of LXQ’s account.

[59]	LXQ also admitted telling a number of untruths to various people. She admitted she lied to the defendant about whether she was allowed to stay at his house. She admitted she lied to her parents as to her intentions. She admitted she lied to the defendant as to whether she was romantically involved with any other males. It is open to conclude she lied as to the identity of the person saved on her phone as “C”; she at first could not recall that person’s name, then said it was a friend “Colin”, denied that person was named “Christian”, yet in a text message referred to that person as “Christian”. She admitted sending a message to that person, falsely saying the defendant “practically forced” her to go to his house. 

[60]	LXQ explained she did not raise any alarm either by calling or texting someone, or by alerting someone in the house. She said she was scared or thought she would not be believed. I would not reject LXQ’s evidence only because of her failure to complain during the night. However, given the unsatisfactory aspects of her account that I have identified, and in light of her actually messaging persons that she was okay, this too is a matter which tends to undermine her reliability. 

[61]	The prosecution submit the text messages sent by the defendant between 9.38am and 10.42am on 14 July 2018, contain evidence of an admission or confession of guilt. The detail of the contents of the messages relied upon, and that they were sent by the defendant, was not disputed. It is submitted the messages contain an apology and an acknowledgment that his act or acts were wrong. For the defendant it is argued the messages relied upon must be considered in the context of the defendant’s earlier message “I did nothing wrong”; which it is submitted is a clear denial of any wrong doing. It remains a matter for my assessment whether I should regard the messages in the way contended by the prosecution and what weight, if any, they have.

[62]	In the circumstances of this case I am not persuaded the messages should be regarded as an admission or confession. The exchange includes LXQ’s complaint of being “practically sexually assaulted” and “I kept saying I didn’t want it but you did it anyways”. No more specific allegation was given. In the absence of the detail of what was being alleged, it is not possible to be certain what the defendant understood, or that both parties were talking about the same event, or what it was the defendant was apologising for. It seems to me entirely possible the defendant was expressing regret about becoming involved with LXQ at all, or that he simply wanted to end the conversation. His messages do not permit a conclusion that he was admitting of either of the charged acts. This analysis is not made clearer by the evidence given by LXQ, since that leaves me uncertain as to whether her specific allegations of non-consensual conduct are reliable. I am not satisfied the messages of the defendant were an acknowledgement of guilt of any offence. In those circumstances I will disregard them.

[63]	The prosecution submit the preliminary complaint evidence shows consistency of account and bolsters the credit and reliability of LXQ. LXQ sent text messages to her friend JWT after 2.48am (AEST) saying she was okay. She again messaged JWT at about 8.15am (AEST) asking if she could pick her up and saying she did not want to be at the defendant’s house, and at 8.18am (AEST) that she was “scared”. At about 8.48am (AEST) LXQ messaged that “something just happened” and “he just sexually harassed me”. LXQ said that when JWT picked her up, she told her and JWT’s friend WLP, detail of being raped. Neither JWT nor WLP were called to give evidence and so consistency of any account told to them in person cannot be demonstrated beyond LXQ’s version. The detail contained in the text messages is hardly a basis to regard that complaint as demonstrating real consistency. Arguably, although making complaint of a sexual nature, the statement that those events “just happened” is inconsistent with the claim LXQ was raped hours earlier. Although the complaint in the text message was of sexual harassment rather than rape, I would not conclude there is real inconsistency on that basis alone.

[64]	LXQ exchanged a number of text messages with her friend OSD after 10.00am (AEST) on 14 July. These included her statement she had been “sexually assaulted”, OSD asking if she had been raped and LXQ replying “yeah”. The messages from LXQ included detail that she had been pinned down. These messages are capable of demonstrating some consistency in complaining of being raped. However, the detail of being pinned down was made in evidence by LXQ only in relation to the uncharged allegation of non-consensual sexual intercourse. LXQ also made a complaint to OSD in person. In that version, OSD related limited details, some of which might be consistent with LXQ’s evidence. However, contrary to LXQ’s evidence, OSD said LXQ did not tell her she had consensual sex with the defendant. I do not regard these exchanges as materially bolstering LXQ’s credit.

[65]	LXQ said she told her friend HIY in person that she had been raped. HIY was not called to give evidence and it is not possible, beyond LXQ’s evidence, to assess consistency of that account. Likewise, LXQ told her brother BVC only that she had been raped. BVC’s evidence was that no further detail was provided. His evidence provides little basis to assess consistency.

[66]	LXQ also provided an account to police officer Tormey. I have referred to details of that version already. I conclude that far from bolstering LXQ’s credit, that version materially undermines her reliability.

[67]	The prosecution submitted that consideration of LXQ’s demeanour when giving evidence was a feature that also weighed in favour of acceptance of her account. LXQ did give evidence in a forthright and confident fashion. However, as is demonstrated by the matters referred to above, that confidence did not translate into a consistent and credible account. My assessment of the detail of LXQ’s evidence leaves me in a state of considerable doubt as to the reliability of it. I was not persuaded by her manner of giving evidence that she was necessarily truthful. To the contrary, the conclusion I have reached is that her account was contrived, inconsistent and inaccurate.

[68]	I am unable to determine whether a motive for LXQ to have lied is established, but in the end, it is unnecessary that I make any finding in that regard. I cannot conclude LXQ’s evidence is truthful only because I am not satisfied a motive to lie is proved. In fact the conclusion I have reached is that her evidence is unreliable. 

[69]	I find myself in a state of reasonable doubt whether either of the acts the basis of the charges actually occurred. In those circumstances, the prosecution have not discharged their onus of proving the first element of either of the offences beyond reasonable doubt. It follows I should find GMB not guilty of both counts.

Verdict

[70]	In relation to count 1 on the indictment, the charge of rape, I find GMB not guilty. 

[71]	In relation to count 2 on the indictment, the charge of rape, I find GMB not guilty. 

Order

[72]	I make the following order:

1. 	GMB is formally discharged in respect of indictment number 58 of 2019.