District Court New South Wales Medium Neutral Citation: R v Bennett [2014] NSWDC 61 Hearing dates: 20 May 2014 - 23 May 2014; 2 June 2014 Decision date: 03 June 2014 Before: Berman SC DCJ Decision: The accused is found not guilty Catchwords: CRIMINAL LAW - Verdict and judgment - Judge alone trial - Sexual assault - Complaint Category: Principal judgment Parties: The Crown Shaun Anthony Bennett Representation: Counsel: P McGrath - Crown Mr A Goldsworthy - Accused Mr D Randle - Accused Solicitors: Director of Public Prosecutions File Number(s): 2012/2633164 Publication restriction: There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant. Judgment Summary of the facts. Introduction 1The accused is charged with an offence of sexual intercourse without consent allegedly committed upon the complainant on the 11th of April 2011. He was arraigned on that charge and pleaded that he was not guilty. He elected that he be tried by judge alone. The Crown consented and so the issue as to whether the accused is guilty or not is for me to decide. In this judgment ,I will deliver my verdict and the reasons for it. 2In what follows I will not use the name of the complainant. Instead I will describe her in those terms. I fully appreciate that describing a human being who has made an allegation of sexual assault as "the complainant" is impersonal and could easily offend. I wish to make it clear that I have referred to the complainant in that manner to protect her privacy. This judgment will be published on the internet and I have no wish to cause any further distress to the complainant beyond that she has already experienced. Summary of evidence 3In 2010, the complainant was estranged from her husband. She had established a sexual relationship with the accused. He had booked a holiday to go to Vietnam in March 2011. In the period leading up to his departure he and the complainant discussed a particular issue of considerable concern to the latter, namely the nature of their relationship. 4The complainant desired that their relationship was such that neither party would feel free to have sexual contact with anyone else, but the accused's desire was to the contrary. And so in the days before the accused's departure the question arose as to whether the accused would have sex with anyone else whilst in Vietnam. 5Fortunately for me in deciding the guilt or otherwise of the accused, the complainant was a prolific sender of text messages, to some of which the accused would respond. Thus there is a record of significant parts of the discussions between the complainant and the accused on the topic of his fidelity. It is undeniable that the complainant had a fervent desire that the accused would remain faithful to her whilst he was in Vietnam, but was deeply suspicious as to whether that was likely to be the case. 6The accused and the complainant travelled down to Sydney from the Central Coast where they lived in separate houses on the night before the accused departed for Vietnam. They stayed in a hotel near the airport. Once the accused left Australia his mobile telephone was incapable of receiving voice calls or messages. Thus whilst the complainant tried to call him, and sent an extraordinary number of text messages to him whilst he was in Vietnam, he received none of them whilst he was there. 7On the day of his return to Australia the complainant travelled down to Sydney in the company of her friend Annette Seaburn. The complainant did not drive and so she asked Ms Seaburn whether she would drive to Sydney with the complainant in order to collect the accused from Sydney International Airport. The accused did not expect to see the complainant at the airport and was surprised upon his exit from customs to find her waiting there for him together with Ms Seaburn. The three of them went to have a coffee. One of the questions uppermost in the complainant's mind was whether the accused had been faithful to her whilst he was away. She asked him about this and although the accused said he had been faithful, the complainant clearly did not believe him. At one stage the accused separated from the complainant and Ms Seaburn, heading towards the railway station to get a train back home. The accused said it was his decision to do so because he was sick of being questioned about whether or not he had been faithful whilst away, the complainant said it was her decision to effectively abandon him at the airport because she formed the view that he had been unfaithful to her, but it probably doesn't matter much which version is accurate. The important point is that the complainant was deeply concerned about the accused's faithfulness and did not believe his denials. 8In any case there was a change of heart and the complainant and Ms Seaburn eventually reunited with the accused and the three of them drove north. They went to Wyong where the accused's car was parked. He and the complainant got into his car, drove to his home, then went to a club where they had drinks (the complainant does not drink alcohol) and dinner and then returned to the accused's home. It is common ground that whilst at his home an act of sexual intercourse took place. The accused says it was consensual but the complainant's evidence is that after saying "no" the accused forced her to perform fellatio on him. 9It is also common ground that shortly after the intercourse occurred the complainant called for a taxi. It came, and she went home. Thereafter the complainant sent a number of text messages to the accused and he sent some to her. In one of those text messages the complainant alleged that the accused had forced her to perform oral intercourse upon him. The accused did not reply to this allegation. The complainant made a further allegation by way of text message the following day. This time the accused did respond by way of text message, denying that the intercourse was non consensual. 10In another message the accused effectively ended the relationship and told the complainant that she was better off without him because he had only lasted a week on holidays before having sex with someone else. 11The complainant told two friends that she had been forced to perform fellatio on the accused the day after that event allegedly occurred. She refused a suggestion that she go to the police about the matter, at least partly on the basis that the accused was himself a police officer. 12The complainant did not cease sending text messages to the accused. As well as the allegations I have referred to earlier she sent messages asking the accused to repay money that he owed her, and other messages in which she complained about the way he had behaved towards her. As well as such electronic messages it was an agreed fact that the complainant had sent letters to the accused in which she repeated her allegation that he had forced her to perform fellatio upon him. 13It was also an agreed fact that on 12 July 2011 the complainant telephoned the NSW Rape Crisis Centre and said (amongst other things) "I was dating a police officer for 6 months...He forced me to do oral sex on him". 14There was no complaint to police for some time. What led to the police being informed was that the accused spoke to another police officer in an attempt to obtain an Apprehended Violence Order against the complainant. At the same time as the accused made his allegations he informed the officer that it was possible that the complainant would respond by making an allegation against him that he had sexually assaulted her. This proved to be the case. The complainant did, at this stage, tell police of her allegations. The accused was arrested in August 2012 and charged with the present matter. 15The accused has no criminal convictions. Relevant Principles of Law 16At this stage I will set out some important matters of law. They are the sorts of things that I would tell a jury were this a trial where the jury decided the guilt or otherwise of the accused. Decide the case according to the evidence 17I will determine all the relevant issues of fact according to the evidence. The evidence in this case was made up of what witnesses said in Court and the evidence which has been tendered. I have made no enquiries of any kind about anything that came up in this trial. 18The complaint gave evidence through closed circuit television. Adducing evidence by those means is standard procedure. I did not draw any adverse conclusion against the accused because the evidence was given in that way, nor did I give the evidence any greater or lesser weight because it was given in that way. 19Although I had the benefit of seeing the witnesses give their evidence I fully appreciate that in many cases it is extraordinarily difficult to assess whether a witness is telling the truth or not from the way the person behaves while giving evidence. I will comment on some aspects of the complainant's demeanour later in this judgement. At a very broad level, the accused's behaviour in the witness box was unusual. Evidence was led as to why that may have been, but at a more fundamental level an unusual appearance impression in the witness box often says very little about whether the witness is doing his or her best to tell the truth or not. No emotion 20I have decided this case coldly and unemotionally. Were there a jury I would instruct them to ignore any feelings of sympathy or any other emotion that they might feel in deciding whether or not the accused is guilty of the charge he faces. Both the Crown and the accused are entitled to my judgment free from prejudice and sympathy. 21There is no doubt that some of the accused's behaviour towards the complainant could be described as unchivalrous and ungentlemanly. Of course, I do not take this into account as a matter pointing to guilt. I mention it for two reasons: firstly to illustrate the proposition I have set out above; and secondly because of the possibility that such conduct has provided the complainant with a motive to make a false allegation of sexual assault and may, at least in part, have caused the observed distress the day after the assault was alleged to have occurred about which evidence was given by the complainant's friends. These are matters to which I will return. Character 22As I have already mentioned, there was evidence that the accused has no criminal convictions. I will take such evidence into account in two ways. Firstly, the absence of any history of conduct such as alleged against him in this trial, or any criminal conduct at all, makes it less likely that he would have committed this offence. Secondly, the absence of criminal convictions supports the credibility of the evidence he gave in Court. 23Of course the character of the accused in this respect is just one of the many matters I will take into account in deciding my verdict. People without criminal convictions are not incapable of committing offences, after all everyone who has ever been convicted of a criminal offence was at some stage a person with no prior convictions. Nor are people with no criminal convictions incapable of lying in court. 24Despite these considerations, it remains the case that the evidence that the accused has no criminal convictions is a matter in his favour for the reasons I have mentioned above. Onus of Proof 25The most important and fundamental principle of law which I apply concerns the onus and standard of proof. Because this is a criminal trial, the burden of proving the guilt of the accused is placed firmly on the Crown. The accused starts from the position that he is presumed innocent and that presumption continues until the Crown satisfies me beyond reasonable doubt that he is guilty. 26What the Crown must prove, and prove beyond reasonable doubt, are the ingredients or essential facts contained in the charge arising from the indictment. In the circumstances of this trial, where the accused agrees that sexual intercourse took place, and where if the circumstances in which it took place are as described by the complainant the accused must have known that she was not consenting, then there is only one real issue for me to decide. That is whether I am satisfied beyond reasonable doubt that the accused grabbed the complainant's pony tail and forced her head down so that his penis went into her mouth. Of course the corollary of that is that if it is reasonably possible that the intercourse took place as the accused described it then he must be acquitted. Motive to Lie 27The accused's case is clearly that the allegation made by the complainant is a lie. 28He has raised for my consideration the suggestion that the complainant had various motives to lie: * He allowed her to perform consensual oral sex on him before he told her that he had been unfaithful to her in Vietnam. * Simply the fact that he was unfaithful to her in Vietnam. * Because he ended the relationship with her. * Or a combination of any or all of the above. 29The accused does not have to prove anything in this trial and that includes a reason that the complainant would lie. If I reject the motives put forward by the accused, that does not necessarily mean that the complainant is telling the truth. 30After all, there might be motives to lie which no-one knows about. If I reject the motives that the accused has suggested to me, then I cannot say "well the offences must have occurred". I must still be satisfied of the truthfulness and reliability of the complainant and the Crown must still prove to me that the accused committed the offence beyond reasonable doubt. 31If I reject the motives to lie put forward by the accused, I must remember that the absence of evidence of a motive for lying is not proof that there was no motive for lying. Absence of evidence as to a motive to lie is irrelevant and adds nothing to the reliability of the complainant or other evidence in the Crown case. 32The accused can't be expected to see into the mind of the complainant and be held accountable for failing to discover whatever motive there may be for the complainant to tell a false story. Single Witness 33One matter which flows from the high standard of proof which is placed upon the Crown concerns the circumstance that the Crown case relies almost exclusively on the evidence of a single witness, namely the complainant. Accordingly I have scrutinised her evidence with great care. Before I could convict the accused I must exercise caution because the Crown case depends on me accepting the reliability of the evidence of a single witness namely the complainant. 34Of course that does not mean that I am not entitled to convict the accused based on the evidence of the complainant alone. What it does mean is that I should exercise caution and scrutinise the evidence of the complainant carefully in deciding whether it satisfies me of the truth and accuracy of what she said. 35It is notorious that offences such as the one alleged in this trial are usually committed in private and so it is commonly the case that the Crown is forced to rely on the evidence of a single witness. But the standard of proof, proof beyond reasonable doubt, is not watered down because offences such as these usually occur in circumstances where no one is present to corroborate the complainant's version. Analysis of the relevant circumstances. 36What I will do now is to discuss a number of circumstances relied on by the Crown on the one hand and the accused on the other as suggesting that guilt has either been proved or has not been proved beyond reasonable doubt. In a large part these circumstances relate to the conduct of the complainant. Many circumstances, so the Crown suggests, demonstrate behaviour which is consistent with the actions of a person who had been sexually assaulted in the way the complainant said she had been. Some circumstances reveal behaviour which are only consistent, so says the Crown, with that having occurred. On the other hand the accused points to circumstances which he says are consistent with the allegation being false and some circumstances which are said to be only consistent with it being false. 37As I set these circumstances out it is important to understand that it is not simply a matter of counting up the number of circumstances suggesting guilt and the number or circumstances suggesting that guilt has not been proved. Especially in a case where the prosecution has to prove guilt beyond reasonable doubt it can be the case that a single circumstance pointing to innocence can trump a large number of circumstances pointing the other way. Fear of disease 38Support for the complainant's version and thus the prosecution case can be found in her expressed attitude towards the possibility of contracting a sexually transmitted disease from the accused after he returned from Vietnam. The complainant gave evidence that one of the things that occupied her mind while she was being forced to perform oral sex on the accused was thoughts of where the accused's penis had been whilst he was away. She gave evidence that she contemplated that he may have had, for example, anal sex whilst on holiday. The Crown relies on this as a circumstance suggesting that the complainant would not have consented to performing oral sex upon the accused at all, let alone the very day that he returned from overseas. 39There is evidence which establishes that the complainant's concern about the possibility of catching some form of disease from the accused was not a recent invention. Indeed the evidence established that well before the accused went on his holiday, the complainant was concerned about the possibility of disease. On 20 March 2011 the complainant sent a text message to the accused saying (I will insert some punctuation to make the meaning clearer) No. Vietnam then me - it will neverrrr happen. Me of all ppl, miss paranoid of germs n disease, ewwww. Makes me sick to think of it really, lol." 40As well there is the evidence of Ms Seaburn that the complainant was phobic about germs and considered Vietnam a dirty country, similar concerns having been spoken about by the complainant with Ms Gold. 41The accused gave evidence that, whilst the complainant says that she was paranoid about germs, she wasn't. I reject that evidence. It is inconsistent with the text messages to which I have referred. It is inconsistent with the evidence of the complainant's friends Ms Seaburn and Ms Gold. And it was not suggested in cross-examination of her friends that they were either lying or mistaken about this matter. 42Although the accused's admission by text that he had had sex with someone in Vietnam came after the complainant performed fellatio on the accused (and so that admission can not have been in the complainant's mind at the time of the sexual act), when she met him at Sydney airport the complainant was of the view that he had not been faithful to her. The accused's evidence was that despite his denials to her at the airport, he believed that the complainant believed he had been unfaithful, forming this opinion from both her facial expression and constant questioning of him. 43Thus the complainant's evidence that when she was being forced to perform oral sex on the accused she felt disgusting, thinking where his penis had been whilst in Vietnam, is entirely consistent with her earlier expressed attitude. This supports the complainant's evidence that she did not consent to performing oral sex upon the accused. 44There are two things to say about this circumstance at this stage. Firstly, it could be weighty evidence to support the crown case. Secondly, its weight diminishes considerably if it is possible that over the course of the day they spent together, the complainant altered her view as to the likelihood that the accused had been unfaithful. 45The accused gave no evidence of any conversation in which, for example, he persuaded the complainant that he had remained faithful. But on the other hand he relies on the very circumstance that the complainant remained in his company from the time they left the airport until she got a taxi home from his place, with the complainant unable to account in evidence for what occurred during a significant part of the afternoon. He also relies on the apparent change in attitude on the part of the complainant after he sent the text message to her in which he confesses infidelity (text message of 12/4/11 at 6.35pm "I wasn't good in Nam... I lasted a week) as demonstrating that remaining in his company for the afternoon of 11 April 2011 is behaviour very inconsistent with a belief that he had had sex with someone whilst away overseas. 46I will return to this issue later as I analyse the evidence as a whole. Observations of the complainant as she gave evidence 47I closely watched the complainant as she gave evidence and whilst I fully acknowledge the difficulties that human beings have in identifying whether a person is lying or not, I do take into account such things as the obvious distress exhibited by the complainant as she gave her evidence, particularly as she described the actual act of sexual intercourse which forms the basis of the charge faced by the accused. She appeared to find it disgusting that the accused placed his penis in her mouth, and then ejaculated in her mouth in circumstances where she was thinking about where his penis had been during his trip overseas. Her display of disgust appeared genuine. 48I should make it clear that it could not be the case that the mere act of fellatio was what had disgusted her. The evidence was that such sexual acts were a part of their consensual sexual relationship. The accused himself gave evidence to that effect and indeed made reference to such acts in one of his text messages to the complainant. 49At one stage in cross-examination it was suggested to her that as well as the oral sex forming the basis of the allegation brought against the accused, she had also performed fellatio on the accused earlier that day, before they went to the club for drinks and dinner. I watched the complainant particularly carefully during this period of questioning (I had advance notice that questions about this were going to be asked because of a s 293 Criminal Procedure Act application properly made by Mr Goldsworthy). The complainant was emphatic in her denial that she had performed oral sex on the accused on the afternoon of 11th April 2011 and she appeared quite surprised by the suggestion that such an event had taken place. Her surprise did not appear to me to be in any way feigned. Immediate complaint to some and lack of complaint to another 50Although it was some time before the complainant made an allegation to police, and the circumstances of that complaint need to be borne in mind, it is the case that from very soon after she left the accused's premises she was alleging that he had forced her to perform oral sex upon him. At 8.43 pm on 12 April 2011 the complainant sent the accused a text message which included these words "then u forced my head down to suck your dick when I said no! ". Despite the seriousness of this allegation there is no record of the accused responding to it. It may well be that he did not read it given the number of text message he received from the complainant. 51Later, on 13 April 2011 the complainant again made an allegation to the accused when she sent a text message to him at 6.36 pm saying "u also know u FORCED me to suck your dick, when have I said no before ? " This time the accused did answer the allegation when he sent a text message two minutes later saying "I didn't force u to do anything. I think with your size and strength u are able to stop." One minute later the complainant replied to this text message by saying "hahaha are u saying I didn't say no ???? swear on ya 2.5 kids life ??". There was apparently no response to this. 52Given the number of text messages sent by the complainant to the accused, and the way in which they were stored on his older model Nokia mobile phone, not too much should be made of the fact that the accused did not apparently respond to the first allegation quoted above and did not respond to the request that he swear on the lives of his 2 children and the child yet to be born. What is perhaps more important is the circumstance that very shortly after the complainant says she was sexually assaulted, she was complaining about that to the accused. Her behaviour in sending those text messages was entirely consistent with the actions of a woman who had been sexually assaulted shortly beforehand. 53But of course it was not only the accused to whom the complainant complained. The evidence established that the day after the assault was alleged to have occurred the complainant told Annette Seaburn and Danielle Gold (in separate conversations) what had happened the night before. Ms Seaburn's evidence was that the complainant had complained that "He...grabbed her hair and forced her head down and was forced to suck him off". Ms Gold's evidence was that the complainant told her that in response to a demand that she have sex with the accused, She said no she wouldn't and she'd repeated that a few times. He had said it again that she would and then he had put his hand on the back of her head and grabbed her hair and forced her head down as he took his penis out and made her give him oral sex. (I do not regard it of much significance that Ms Gold's recollection was that the complainant told her that these events happened in her home rather than that of the accused.) 54In assessing the weight to be given to the complaints to her friends, it is important to consider whether it is possible that the complaints were false allegations prompted by the accused's confession of infidelity. In assessing that issue, matters of timing become important. If the complaints came before the accused's confession they are much more supportive of the crown case than if they come afterwards. The converse is true as well, and the accused relies on the circumstance that at the time the complainant complained to Ms Seaburn, she appeared to have "actual knowledge" of infidelity, the accused having confessed such to her (see T:145). 55Another matter the accused relies on concerns a lack of complaint. The accused points to the circumstance that the complainant failed to tell her estranged husband about what she said had just occurred despite the fact that she was exchanging text messages with him fairly regularly over the course of the evening of 11 April 2011 (I will discuss below the way the complainant described the accused in those messages). 56The complainant sent 26 text messages to her estranged husband in the period of about two hours immediately after she called the taxi to pick her up from the accused's house. None of these messages contained any complaint of the alleged assault. 57Given that delay in complaint is raised by the accused I should remind myself that there may be good reasons why a person in the complainant's position would delay making a complaint. In cross-examination the complainant explained why she had not told her estranged husband what the accused had done. She said that if she had, her estranged husband would have gone straight around to the accused's home and killed him. Whilst there is perhaps some exaggeration in that answer, it is not at all surprising that the complainant might fear a violent reaction from her husband which would scarcely do anybody any good. 58As well as what the messages did not say, the accused points to what they did say as being inconsistent with the sexual assault having occurred. This concerns the way the complainant referred to the accused in those text messages sent to her estranged husband soon after the assault was alleged to have occurred. 59In analysing the content of these messages it must be borne in mind that, as the messages reveal, there was something of an acrimonious relationship between the complainant and her estranged husband at the time, with the complainant at times, anxious to insult and abuse him. So, complimentary things said about the accused in those messages have to be seen in that light. But even taking that factor into account the complainant's conduct in describing the accused in the way she did is a factor pointing to the accused's innocence. For example from exhibit 4 * Message 5960 "Shaun is innocent compared to that dead CUNT Mark". * Message 5963 she describes the accused as "an innocent party". * Message 5988 "he certainly acts better that u..." * Message 6011 "he has a lot more morals than u" 60In the context of a bitter dispute with her husband the use of the word "innocent " may well mean, as the complainant suggested, that the accused was not responsible for the predicament that her estranged husband finds himself in, but suggesting to her estranged husband that the accused acts better than he does and that he has a lot more morals than him are surprising things to say about a person who has just sexually assaulted her. 61Whilst the explanation offered by the complainant for her failure to tell her estranged husband what she said the accused had done to her might explain an absence of complaint, that circumstance does not explain why she would speak about the accused in positive terms. The messages to the accused on 12 April 2011. 62At 2.48 pm on 12 April 2011, the day after the alleged assault, the complainant sent an SMS to the accused saying "seems like u don't want to know me now u back? Did I do something wrong" this is, in my view, an unusual thing to say to a man who had less than 24 hours before forced the complainant to perform oral intercourse upon him. The message has the flavour of the complainant being ignored which is inconsistent with how I would have expected the complainant to have acted if the events of the previous evening were as she described. 63The complainant explained some of her text messages on the 12th of April 2011, and in particular their polite nature, by saying that she was keen to get her money back - a figure of between $500 and $800 was mentioned. On one view it would be unusual for a woman who had been sexually assaulted to remain focused on getting some money back from the accused and remaining polite to him because of that. On the other hand even $500 is a not insignificant amount and it is not unknown for people to hide their true feelings to others in such circumstances. 64Also inconsistent with having just been sexually assaulted is the text message at 6.33 pm. Again it appears that the complainant is asking the accused to pay more attention to her asking "what have I done now". Again this is more consistent with a complaint about being ignored than with the complainant's suggestion in evidence that these text messages refer to the money that the accused owed her. 65A very short time later, at 6:35pm, the accused responded with the confession of infidelity referred to above ("I wasn't good in Nam... I lasted a week) which led to a dramatic change in the tone of the text messages sent by the complainant. This change of attitude is important, as I will discuss later. Deletion of text messages by the complainant 66It is immediately apparent when exhibit 5 is compared with exhibit 6 that not all text messages sent by the complainant from her mobile phone were still stored on that phone when she handed it to police. The complainant gave evidence that from time to time when her phone memory became full she would delete messages randomly so as to free up some storage space. The suggestion was made to the complainant in cross-examination that she had deleted messages which were not helpful to her case. Unfortunately, although she handed her mobile phone to police, no attempt was made by them to recover any deleted messages. Nor did the accused produce his phone which might have contained some of the deleted messages. 67It was, in the absence of any knowledge as to what was contained in the deleted messages, difficult to discern whether messages had been deleted randomly as the complainant said or with particularity as was alleged in cross-examination. Certainly those messages which remained gave no hint to there being some particular messages which would have been unhelpful to an acceptance of what the complainant says the accused did to her. On the other hand one might have thought that if messages were to be deleted randomly then the easiest thing to do would be to delete a group of messages, but what the complainant appears to have done is deleted a message, skipped over the next message or so and then deleted another message. 68Perhaps the most important feature demonstrating that the complainant has not deliberately deleted messages unhelpful to her case from her phone is the circumstance that if that was the complainant's motivation there are many many messages she would have deleted. 69Ultimately I was unable to determine why the complainant had deleted particular messages. It is possible that she had deleted particular messages which were unhelpful to her cause but that is as high a finding as I am able to make. Call to rape crisis centre 70As mentioned above, it is an agreed fact that on 11 July 2011 the complainant made a call to the NSW Rape Crisis Centre in which she made a complaint consistent with what she now says occurred. This is a matter which supports a finding that the complainant had a genuine belief that she had been sexually assaulted by the accused. 71This is especially the case where the call to the rape crisis centre was quite remote from other complaints of wrongdoing made by the accused to her friends and, more importantly, to police. If the complaint to the rape crisis centre came at about the time complaint to the police was made, there could have been a suggestion that it was part of the complainant's attempt to bolster her own credibility, but that was certainly not the case. The complainant had made it clear to Ms Seaburn that she would not be making a complaint to police because the accused was a police officer. The only thing which appears to have prompted a change of mind was the accused's attempt to obtain an AVO against her. 72So the evidence establishes that the call to the rape crisis centre is most unlikely to have been part of a cunning plan by the complainant to act in the manner a genuine victim of sexual assault would be likely to act. The reason for that call could really only have been in connection with a desire for assistance from the rape crisis centre. For that reason I consider that there is substantial support for what the complainant says to be found in the circumstance that she made a call to the rape crisis centre when she made it. The complainant spent the day with the accused on his return. 73The evidence established that had the complainant wished to, she could have quite easily declined to spend as much time with the accused as she did on the day he returned from Vietnam. Once she, her friend Annette Seaburn, and the accused had arrived at Wyong where the accused's car was, she could have easily asked Ms Seaburn to drive her home. She could have asked the accused to have driven her home at any time that day, but the evidence was that she did not do so. To the contrary she bought some vitamins for him at a shopping centre, went to his home, and went out to dinner with him before returning to his home. She spent the whole of the afternoon and a significant part of the evening with him. 74That is inconsistent with her evidence that she formed a strong belief from the accused's body language that he had been unfaithful to her whilst he was in Vietnam. The complainant's evidence was that she stayed with him to keep on good terms so that he would repay her the money that he owed her. I accept the submission made on behalf of the accused that it would have been an easy matter for her to say to the accused "you must be tired why don't you drop me home and have a sleep" which would have been a polite way of declining to spend time with the accused. That she said nothing of this kind, but did remain in his company for many hours upon his return from Vietnam, does tend to suggest that either she was not firmly of the belief that he had been unfaithful to her whilst in Vietnam, or that her belief that he was unfaithful to her did not cause her to want to permanently end the relationship she had with him, or perhaps that she wished to maintain a non-sexual friendship with the accused. 75On one view the fact that the complainant spent so much time with the accused on the day he returned from Vietnam is inconsistent with her having a belief that he had been unfaithful to her whilst on holiday. On the other hand it was common ground between the accused and the complainant that she had such a belief, the accused forming that opinion by the look on her face and that she continually asked him the same question over and over again, the accused agreeing with the proposition that "it was quite obvious she didn't believe you". (T:184.29). 76This leads to what is perhaps the most important aspect of this case - in the hours leading up to the intercourse the subject of this charge, did the complainant ever moderate her views as to whether the accused had been unfaithful to her whilst overseas? I have already touched on this issue when discussing the evidence regarding the complainant's attitude to disease, and it is an issue to which I will return later when analysing the evidence as a whole. The circumstance in which the allegation is made known to police 77What led to the allegation being made to police, and thus the accused facing trial, was his complainant about the complainant's behaviour. At the time he made that complaint to another police officer, he suggested that his complaint may prompt an allegation in return that he had sexually assaulted the complainant. This is conduct which is inconsistent with guilt. It would be strange for him to complain about behaviour of the complainant in circumstances where, as he said to the police, she may well retaliate by making an allegation of sexual assault, if that allegation was true. Facebook messages to "Girlfriend Mel" 78It was common ground that over a period of time the complainant had sent a number of facebook messages to a person she referred to as "girlfriend Mel". This was a person with whom the accused had been having a relationship of a sexual nature. The complainant referred to her as "girlfriend Mel" to distinguish her from the accused's former wife, also named "Mel". 79The messages to girlfriend Mel are clearly designed to portray the accused in a bad light. It was the clear intention of those messages that the recipient of them think substantially less of the accused. Thus in the messages the complainant tells girlfriend Mel that: * The accused had made them both pregnant at the same time. * The accused had given another woman a sexually transmitted disease. * The accused had told the complainant that he does not like having sex with girlfriend Mel. * The accused had told the complainant that he does not love girlfriend Mel or like her. * The accused had slept with others in Vietnam. * The accused was a "pro liar". * The accused talks about girlfriend Mel "like a dog." 80It is remarkable that in those messages, which commenced soon after the complainant says she was sexually assaulted by the accused, she makes no reference to the accused having sexually assaulted her. According to the complainant she thought that Mel deserved to know things about the accused. An obvious question to ask is why she would stop short of making an allegation that he had sexually assaulted her when, as was clear, she was doing her best to denigrate the accused in the eyes of girlfriend Mel. 81In her evidence the complainant provided some explanation. She testified that she did not think that she would have been believed, saying "I wouldn't even think she would believe that from him". She said "I didn't think that was for me to bring to her". She explained that the things she did tell girlfriend Mel were matters about which she had evidence, such as by forwarding text messages which she had received from the accused in which he was less than complimentary about Mel. In some of the facebook messages she did precisely that. 82Whether her motivation in sending these messages was to make girlfriend Mel fully aware of the conduct of the accused as a means of assisting her or as a way to denigrate the accused, it is remarkable the complainant would ignore one of the most serious things that could be said about a human being, namely that he had forced a woman to have sex against her will. The explanation offered by the complainant does go someway to making the omission less remarkable, but even so, I regard this aspect of the evidence as worthy of close consideration. 83In undertaking that close consideration I do have to analyse the significance of the circumstance that the complainant would fail to make the allegation to a particular person when she had already complained to the accused himself in two text messages (and would continue to make such allegations by letter), to her friend Annette Seaburn and to her friend, Danielle Gold. Failure to complain to a particular person is less significant than failure to complain at all. Distress on the part of the complainant 84There is no doubt that when the complainant told Ms Seaburn and Ms Gold what the accused had done to her she was very distressed. Indeed she was shaking, she was crying and she was hysterical. The Crown relies on this as support for the truth of the allegation made by the complainant. The Crown says that such signs of distress are entirely consistent with the truth of the allegations being made by the complainant. 85In order to evaluate this argument, it is important to consider whether there are other circumstances which may have prompted the complainant to be distressed. There is the obvious one that the accused had told her that their relationship was over. As mentioned earlier this depends on whether complaint came before or after the text message of 6:35pm. But there is also another circumstance which would add to the complainant's distress. As is clear, and despite the accused's evidence, the complainant appears to have been very concerned about the prospect of the accused being unfaithful to her in Vietnam because of the risk that he would catch some form of disease which would be transmitted to her. I have to consider the possibility that at least part of the complainant's distress the following day is that she learnt, through an admission by the accused that he had had sex in Vietnam after she had voluntarily performed oral sex upon him. 86Another explanation worthy of consideration for the observed distress might be that the complainant was upset at the termination of their relationship by the accused. There are circumstances which would suggest that the complainant might take the end of the relationship badly. For example she clearly missed the ability to communicate with the accused whilst he is in Vietnam. The records from her mobile phone carrier show that the complainant sent either a text message or tried to call him on 66 occasions while he was away. The significance of that level of communication is increased by the circumstance that no text message was sent or telephone call made by the accused while he was overseas. Alleged "physical impossibility" 87There were some aspects of the physical nature of what the complainant alleged which were said by Mr Goldsworthy to be physically impossible. His submissions were at times based on the complainant's movements while giving evidence and, as part of that, demonstrating how she and the accused moved. At other times, for example when he submitted "she must have voluntarily opened her mouth", his submissions were based on the description of events given by the complainant. 88I regard none of Mr Goldsworthy's submissions on this aspect of the matter as carrying much weight at all. The idea that a sexual assault complainant is expected to be able to remember precisely who did what and when is one which does not find much favour with me. And the suggestion that a complainant alleging forced fellatio could simply have kept her mouth closed, is one which deserves to be discarded. Consideration 89There is no doubt that the relationship between the complainant and the accused was volatile. It is also clear that, as evidenced by many text messages sent by the complainant, she was a person who was prepared to make threats, in particular directed at her estranged husband, his brother Mark, and the accused. In those circumstances the possibility that the complainant has fabricated the allegation of forced sexual intercourse must be closely considered. 90As I explained earlier my task is not to simply count up those circumstances pointing to a verdict of guilty and those pointing to a verdict of not guilty and see which option has more circumstances. Not all circumstances carry the same weight. Some point strongly in a particular direction, some are less important. And especially when the onus and burden of proof are factored in, a single circumstance pointing to innocence can trump a large number of circumstances pointing the other way. 91I regard the complainant's well established (despite the accused's evidence) phobia about disease coupled with her obvious belief that the accused was unfaithful to her whilst overseas, as being particularly significant. That she would voluntarily perform unprotected fellatio upon the accused (he says twice) on the very day he returned to Australia is not a version of events that I consider to be reasonably possible unless the complainant has for some reason changed her mind about whether the accused was unfaithful to her. 92It is common ground, as I have mentioned earlier, that on the morning of 11 April 2011 the complainant believed the accused had been unfaithful to her whilst in Vietnam, with the accused relying on the complainant's facial expressions and constant badgering of him on this issue at the airport. That is a particularly important circumstance relied on by the Crown suggesting that the complainant would not voluntarily consent to any form of sexual activity with the accused on the very day he returned. However I have to consider whether it is possible that something happened during the course of the day such that the complainant changed her mind. If she did of course then that makes it much more likely that the sexual intercourse which took place that evening was consensual. 93It is notable that the accused did not suggest that there had been any further conversation on this topic after they left the airport, and indeed his response to the suggestion the complainant would not have voluntarily consented to sex with him in those circumstances was simply to say that the complainant was not as obsessive about hygiene as she suggested she was (evidence given by the accused which I have had no hesitation in rejecting for reasons identified elsewhere in this judgment). 94However there are still three puzzling aspects to the complainant's behaviour which may be thought to be inconsistent with a belief that the accused had been unfaithful. Firstly why did she spend the rest of the day with him if she believed he had been unfaithful to her? She had many opportunities to avoid his company which she could have taken advantage of. Her explanation that she wanted to ensure that he repaid the money which he owed her is unsatisfactory given the ease with which she could have, politely made up any excuse to avoid being with him. Other explanations, such as a desire to continue to have a relationship whether sexual or non sexual, with the accused, do not take account of the dramatic change in the complainant's behaviour after the accused confessed his infidelity by text message. 95Secondly her actions that day went beyond simply remaining in his company. To the contrary she spent more money on him, buying him vitamins and dinner. The sums involved were small but the fact that she bought those items for him is inconsistent with the belief that he had been unfaithful to her whilst on holidays. 96And thirdly and perhaps most importantly there is the complainant's reaction after he sent a text message to her saying "I wasn't good in Nam- you are better off without me - I lasted a week." The actions of the complainant thereafter do not appear to be those of a woman who has simply had the unfaithfulness of her partner confirmed. They are more consistent with the actions of a woman who had been deceived. 97As regards this 3rd matter, the Crown acknowledges the change in behaviour of the complainant before and after that text message. It is apparent in her text messages to the accused (which I have already discussed), and her change of attitude towards her estranged husband. Whereas previously the complainant had been abusive towards her husband, in a text message sent only 42 minutes after the accused's confession of infidelity, the complainant asks her husband to visit her, saying 24 minutes later "I want to talk, not argue". 98The importance of this dramatic change of behaviour towards both the accused and her husband is this: What apparently prompts the change is the accused's confession of infidelity. This tends to suggest that the complainant did not have a belief in the accused's infidelity beforehand. This, in turn is, as I have mentioned numerous times before in this judgment, highly relevant to the likelihood that the complainant would have consented to sexual activity with the accused on 11 April 2011. Decision 99 I must be satisfied beyond reasonable doubt of the accused's guilt before I can return a verdict of guilty. The Crown relies almost exclusively on the evidence of the complainant to proves its case and so I must be cautious before convicting the accused, examining the evidence of the complainant very carefully in order to be satisfied that the Crown has proved its case to the high standard required in a criminal trial. 100When I perform that task I am left with a reasonable doubt about the accused's guilt. Accordingly I find him not guilty. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 June 2014