R v Johnson

Liberato Direction

1. First, if I believe the accused's evidence I must acquit. Second, if I find difficulty in accepting the accused's evidence but I think it might be true, then I must acquit. Third, if I do not believe the accused's evidence then I should put it to one side. Nevertheless, the question will remain: has the Crown, upon the basis of the evidence that I do accept, proved the accused's guilt beyond reasonable doubt?

Elements

1. The Crown alleges that the accused had sexual intercourse with BH without her consent and knowing that BH had not consented to the intercourse at the time.
2. The elements of the count: 1. At the time and place alleged, the accused had sexual intercourse with the complainant 2. At that time of the sexual intercourse, the complainant did not consent 3. The accused knew that the complainant did not consent

Consent in relation to sexual offences

1. A person consents to a sexual activity if the person freely and voluntarily agrees to the sexual activity.
2. Consent involves a conscious and voluntary agreement on the part of the complainant to engage in sexual intercourse with the accused.
3. Consent can be given verbally, or expressed by actions.
4. Absence of consent does not have to be in words; it also may be communicated in other ways such as the offering of resistance although this is not necessary as the law specifically provides that a person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse.
5. Consent which is obtained after persuasion is still consent provided that ultimately it is given freely and voluntarily.
6. The Crown must prove that the complainant, being aware that it was an act of a sexual nature, did not consent to the physical act of the accused.

Knowledge about consent

1. A person who without consent (the alleged victim) engages in sexual activity or incited the alleged victim to engage in a sexual activity with or towards the alleged victim knows that the alleged victim does not consent to the sexual activity if:
2. The Crown must prove to me, beyond reasonable doubt, 1. that the accused knew (had actual knowledge) that the complainant did not consent; OR 2. that the accused was reckless as to whether the complainant consented to the sexual intercourse; OR 3. that even if the accused did have an honest belief in consent, there were no reasonable grounds for believing that the complainant consented to the sexual intercourse.
3. For the purpose of making any such finding, the trier of the fact must have regard to all circumstances of the case: 1. including any steps taken by the person to ascertain whether the alleged victim consents to the sexual activity, but 2. not including any self-induced intoxication of the person.
4. The Crown relies upon knowledge or in the alternative recklessness or in the alternative that the accused did not have an honest belief in consent and there were no reasonable grounds for believing that the complainant consented to the sexual intercourse.
5. One of the grounds on which it may be established that a person does not consent to a sexual activity include if the person consents to the sexual activity while substantially intoxicated by alcohol or any drug.

Recklessness

1. The accused's state of mind was such that he simply failed to consider whether or not the complainant was consenting at all, and just went ahead with the act of sexual intercourse, even though the risk that the complainant was not consenting would have been obvious to someone with the accused's mental capacity if he had turned his mind to it, or
2. The accused's state of mind was such that he realised the possibility that the complainant was not consenting but went ahead regardless of whether she was consenting or not.
3. The Crown must prove each element beyond reasonable doubt.

Evidence Led In the Crown Case

1. The Crown called the following witnesses; 1. The complainant BH. 2. The complainant's Aunt, AG. 3. The complainant's sister JH.
2. The following exhibits were tendered on behalf of the Crown; 1. Exhibit 1-3 photographs of the property 1359 Stewart Bridge Road Lower Moira. This was the campsite referred to in evidence. 2. Exhibit 2-3 photographs of text messages between the accused and the complainant. 3. Exhibit 3-screen shot of text messages between the complainant and Tom Bain. 4. Exhibit 4-screen shot of text messages between the complainant sand JH. 5. Exhibit 5-Screen shot text messages between the complainant and CL. 6. Exhibit 6- 3 photographs of clothing worn by the complainant including blue bike shorts. 7. Exhibit 7-a photograph of the complainant's right breast with scratch marks. 8. Exhibit 8-phtographs of Goana Cottage and surrounds. 9. Exhibit 9-call logs of the complainant's telephone. 10. Exhibit 10-Agreed statement of facts. Exhibit 10 reads as follows;

AGREED FACTS PURSUANT TO SECTION 191 THE EVIDENCE ACT 1995

1. For the purposes of these criminal proceedings, the abovenamed Accused upon the advice of his lawyer*this clause may not be required pursuant to amended s184 and the Crown have agreed upon the following facts pursuant to section 191 of the Evidence Act 1995 (NSW):

Evidence from Carolynne Johnson

1. Investigating police spoke to Carolynne Johnson, mother of the accused at about 10-10.30pm on 1 April 2018.
2. Mrs Johnson made a statement to the police on 22 October 2018 in which she said: 1. On Thursday 29 March 2018 she travelled to Moama for the Easter long weekend. 2. She stayed the Easter long weekend in a cabin in Moama with her family. Other friends joined them for the long weekend. 3. The cabin that she stayed in with her family was a 3 bedroom cabin. 4. Mrs Johnson and her husband stayed in the master room that was to the front of the cabin. 5. The accused stayed in a room across from the master room that had a double bed. 6. Mrs Johnson's other son stayed in a room towards the rear of the cabin. 7. The accused, caught the train to join them at Moama on 30 March. 8. After the accused arrived at Moama and sometime in the afternoon he asked Mrs Johnson to drive him to Echuca to meet his friends BH and CLwho were camped near BH's aunt's property. She dropped the accused at McDonalds at Echuca. 9. Not long after Mrs Johnson had dropped the accused to McDonalds he called and asked if BH could stay at the unit. 10. Mrs Johnson asked the accused where CL was. The accused said that CL had stayed in Melbourne to study. Mrs Johnson reminded Nathan that there was only three bedrooms and that if BH were to stay she would have to stay in his room. The accused said that BH was aware of the arrangements. 11. Mrs Johnson had been to Deep Creek Marina for dinner and then to the Border Inn. 12. The accused called her and said that he and BH were coming to meet them at the Border Inn. 13. Mrs Johnson had already booked a cab to go home. She said a quick hello the accused and waved at BH who was still in the car. 14. The accused returned home at around 2am to 2.30am (she could not be sure of the precise time), came into her room to say that he was home. She said goodnight. Mrs Johnson thought that the accused went to bed. She went to sleep. 15. The following morning Mrs Johnson and others went to the Border Inn for breakfast at about 8am. She returned to the cabin, played cricket, and saw Nathan at about 1pm that afternoon. She asked where BH was. The accused said that she had gone home early in the morning. 16. Mrs Johnson did not notice anything unusual or out of the ordinary with the accused. 17. On 1 April Mrs Johnson dropped the accused to the train station in order for him to take his pre-booked return ticket back to Melbourne for work. 18. Police attended the cabin and spoke to Mrs Johnson and her husband at about 10, 10.30pm. Police told them that they were looking for Nathan and wanted to speak to him about a sexual assault concerning the complainant. 19. Mrs Johnson was surprised and shocked at what the police said.

Seizure of bedding

1. Inquiries made by investigating police revealed that the Johnson family were staying at Goanna Cottage at the Riverview Resort, Moama.
2. Sergeant O'Brien and Senior Constable Oakley attended the Riverview Resort, Moama on 1 April 2018 at about 10pm. They spoke to Mrs Carolyn Johnson and Mr Ian Johnson.
3. The police seized bedding, including a doona and mattress protector as an exhibit.

Bronte Smith

1. Investigating police spoke to Bronte Smith (19 years old) and obtained a statement dated 7 July 2018. Ms Smith said the following in the statement: 1. On 30 March 2019 she finished work at 9.30pm. 2. After going home and changing clothes she joined friends at the American Hotel until about 1 or 1.30am. During this time Ms Smith had three to four drinks and said that she was still definitely sober. 3. Ms Smith left the hotel with two males, Sam and Jarrod. 4. They walked across the road to the OPT nightclub and joined the line to enter the venue. 5. Whilst waiting in the line the complainant spoke to the complainant and the guy she was with and added her to Facebook. 6. Whilst talking to BH and this guy in the line they did not seem to be intoxicated. BH appeared to be talking normally and was not slurring from what I can remember. BH's pupils looked normal. 7. When they got into OPT she was pretty sure they went straight to that dance for a dance 'for a little bit'. She was with BH and the guy. They danced for about 15 minutes and then went and got a drink at the bar. Ms Smith was drinking Vodka Cruises and BH was drinking either a Cruiser or another kind of premixed drink. After going to the bar Ms Smith, the complainant and her friend and Sam and Jarrod danced for about another hour. 8. At one point Ms Smith and BH went to the bathroom together. 9. During the night BH was dancing near the guy she was with but she didn't see them 'grinding, kissing, slut dropping or touching each other in a sexual or intimate way'. BH seems to stay closer to Ms Smith than the guy that she was with. 10. Ms Smith left OPT at about 2.30, 3am on 31 March 2018. Sam and Jarrod went to McDonalds. Ms Smith was collected from the front of OPT by her father. BH and the guy were still at OPT. 11. Ms Smith has not spoken to BH or the guy since 31 March 2018 but was still friends with BH on Facebook at the time of making her statement."

Senior Constable Clough's Statement dated 22 February 2020

1. Senior Constable Clough made a statement dated 22 February 2020.
2. The complainant attended Bayside Police Station on 1 April 2018 at approximately 4.05 pm. The complainant told Senior Constable Clough: 1. She had been camping at Echuca with friends over the weekend. 2. After attending a nightclub she caught a taxi home with a male friend, Nathan Johnson. 3. The complainant went to sleep in the accused's bed. 4. The complainant woke during the night and found the accused on top of her. 5. Her top and bra had been moved up to expose her breasts. 6. Her bike shorts had been taken off. 7. The complainant said that she had been penetrated vaginally. 8. The complainant said she did not say anything to the accused initially due to being frozen, and when she was able to move again she has run to the bathroom and has started crying. 9. Whilst in the bathroom the complainant called her aunt to come and pick her up. 10. The complainant went back to the bedroom, collected her clothes, and left. 11. The complainant said she received several messages by text Messenger, Facebook and Snapchat and a phone call. 12. The complainant said she noticed scratches on her breast and had pain to her vagina the following day.
3. Senior Constable Clough recorded the following in his police notebook: 1. The incident occurred sometime after 02:15 hours. 2. Drank six ciders, two white wines, a pint of cider, four Canadian Clubs through the night.

CL

1. CL made a statement to the police on 31 May 2018. He said the following: 1. He is the boyfriend of BH. 2. He was very good friends with the accused. 3. The complainant and the accused became very good friends. They were constantly around each other. 4. On the Easter long weekend BH was going camping at the property of her family. 5. BH told him that she invited Nathan to the property but that he could not attend. 6. He received a call from BH's sister, JH, on the morning of 31 March 2018. JH said, 7. "Hi. So you know how BH and Nathan went out last night, they got really drunk and BH had planned to go back to Nathan's house. They went back to his house and he raped her". 8. Sometime after receiving this call he travelled to Echuca and arrived around 3 to 4pm. 9. He spoke to BH and said, 10. "What happened? What do you remember?" 11. BH said, 12. "All I remember is having him on top of me and I could not move. I remember thinking that if I just pretended to be passed out he will stop. I remember at one stage not being able to breathe. I ran into the bathroom and tried to call Jess and Ann-Marie". 13. BH was crying while she said this. 14. He asked, "Are you sure you didn't instigate anything?" 15. BH said, "No". 16. He and BH stayed the night at the campsite sleeping in a container on the property. 17. The following morning they drove home to Melbourne. 18. During the drive BH was very stressed and shocked. 19. On 1 April 2018 he met with BH and BH's stepmother at Monash Kyneton Hospital.

Detective Senior Constable Rebecca Turner

1. Detective Rebecca Turner made a statement dated 22 October 2018.
2. Detective Turner said the following: 1. She spoke to the complainant at 4.58pm on 1 April 2018 and asked the complainant if she would consent to a forensic medical. The complainant responded, "Let's do that". 1. She arranged for the complainant to be examined by Dr Kellie Davis at around 6pm. 2. She met the complainant at Monash Hospital at 6.20pm. The complainant was with her stepmother (SE) and boyfriend (CL). 3. CL had a grey plastic shopping bag that contained the complainant's clothes. 4. She received the following items from Dr Davis: 1. Two buccal swabs 2. The forensic medical kit (FMEK) which contained: 1. One cervical swab and slide 2. One high vaginal swab and slide 3. The complainant's bralette 1. She took photographs of the exhibit items.
3. Detective Senior Constable Turner made various notes in a notebook. Some of the entries in the notebook include: 1. CL was asked, "How much has she drunk that you were aware of?" He answered, "Had a fair bit to drink, a lot; six ciders plus. For her that is a lot". 1. CL was asked, "Did she say in what state she was?" He answered, "She said she got in a cab, doesn't remember cash or card. Asleep in cab, he got in front, she got in back". 1. FMO, brief in post medical: 1. 20 odd drinks 2. Normally only three drinks, struggles with four 3. Felt like couldn't move 4. Alcohol affected 100%, thinks that why didn't react 5. Doesn't remember going to the bathroom 6. Remembers sitting on toilet, no bike shorts 7. Top bunched under breast but bra on 8. Crying but Mal told her to shut up 1. On 1 April 2018 she spoke to Plain Clothes Detective Blake Mantel to discuss pretext call. She was told that a warrant is required in New South Wales to do a pretext call.

Thomas Bain

1. Thomas Bain made a statement to police on 4 June 2020 and said the following: 1. On the Easter weekend in 2018 he travelled from Melbourne to the family property at Lower Moira. 2. He travelled with his cousins JH and BH and a friend Jade Kadir-Vella. 3. When they arrived at Echuca, BH's friend, Nathan Johnson, was waiting for them at McDonalds. 4. After collecting Nathan they travelled to the property at Lower Moira. 5. When they arrived at the property (it reads "the", it should read "they") they met with other members and friends. 6. A few hours after arriving JH asked him to join them for a drive to town to drop BH and Nathan at a pub. 7. During the drive he sat in the backseat with Nathan and BH sat in the front passenger seat. JH drove. 8. He did not recall any conversation during the trip. 9. He returned to the campsite and drank with his family and went to sleep in a swag at the campsite. 10. The following morning he looked at his phone and saw a text from BH which said, "Wake JH up now". He also had a missed call from BH. He did not remember the time of the message or call but it was about 2.30am maybe. 11. When he got up he noticed (yet another error) when he got up he noticed a BH was at the campsite. 12. He had no idea anything had happened to BH until the police went to the property to take photos of the campsite a few months after the Easter weekend.

Senior Constable Blake Mantel

1. Senior Constable Mantel is the officer-in-charge.
2. Between 1 and 10 April 2018 he had contact with Detective Senior Constable Turner from Victoria Police.
3. On 10 April he received a statement supplied by BH to Detective Senior Constable Turner from Victoria Police.
4. On 30 May 2018 he travelled to Narre Warren to meet with Nathan Johnson. Nathan Johnson declined to comment in respect to the allegations.
5. On 27 May 2020 Senior Constable Mantel telephoned the owner of the Moama/Echuca Taxis, Paula Kerber. Ms Kerber advised that there was no physical or computer records held in relation to taxi bookings and journeys regarding 31 March 2018, and that the taxis do not have camera. No inquiries were made in regard to the identity of the taxi drivers on 31 March 2018.

Medical Evidence

1. The complainant attended the Monash Medical Centre on 1 April 2018 at 1830 and was examined by Dr Kellie Davis.
2. Dr Davis provided a report dated 10 April 2018 to investigating police which contained the following:
3. The history volunteered by BH is as follows: 1. She was out drinking with a male friend, Nathan, on the night of 30 March 2018 until early the following morning when they went back to stay at the apartment Nathan and his family were holidaying in. 2. That evening BH drank approximately 19 to 20 standard drinks. 3. She went to sleep dressed in bike shorts and a long sleeved T-shirt and woke to find Nathan on top of her with penile/vaginal penetration occurring. 4. BH was unable to respond and her memory around that time felt patchy. She did recall feeling as though she could not breath at one point. 5. She then found herself sitting on the toilet and realised her bike pants were missing and her T-shirt was bunched up under her breasts. 6. BH subsequently found her clothes, dressed, and left the apartment (very distressed). 7. On direct questioning from Dr Davis the complainant said: 8. She was not aware of a condom being used. 9. She felt vaginal pain following the incident like the area was "bruised". 10. She had increased vaginal discharge that day (31 March 2018).
4. A physical examination of the complainant revealed: 1. Five linear brown bruises approximately 4 to 5 centimetres in length on the upper right breast. 2. A single purple bruise on the inner front area above the knee approximately 1.5 centimetres in diameter. 3. There were no injuries visible on her genital examination. 4. Samples taken from the complainant 5. Two buccal swabs 6. Cervical swab x 1 and saliva x 1 7. High vaginal swab x 1 and saliva x 1
5. Opinion expressed by Dr Davis 1. It is impossible to accurately age bruises; however it is likely the injury had occurred within the time frame of minutes to days prior to the assessment

DNA Evidence

1. Investigating police provided the Forensic and Analytical Science Services (FASS) with the following exhibits: 1. Sexual assault investigation kit (BH) contained, 1. High vaginal smear 2. High vaginal swab 3. Endocervical smear 4. Endocervical swab 1. Reference sample of BH 2. Blue bike shorts worn by BH 3. Bra worn by BH 4. Five swatches of fabric from the doona and mattress protector that was on the bed that the accused and complainant slept on. 5. Buccal sample of the accused.
2. Rebecca Jane Williams, employed biologist at FASS, examined exhibits and made the following findings: 1. Semen was not detected on the following: 1. High vaginal smear 2. High vaginal swab 3. Endocervical smear 4. The bike shorts 1. Semen matching the DNA profile of the accused was not found on any of the swatches from the doona or mattress protector. 2. Male DNA was not detected on the endocervical swab. 3. A test on the inside right cup of the complainant's bra: 1. tested positive for amylase indicating that saliva may be present 2. the DNA recovered was a mixture that originates from at least three individuals 3. BH and Nathan Johnson cannot be excluded as contributors to the mixture.

Accused's DNA

1. The accused attended the police station on 23 November 2018 and voluntarily provided a sample of his DNA by way of buccal swab.

Good Character

1. The accused Nathan Johnson does not have any criminal convictions, including for sexual offences or offences of violence.

CASE FOR THE ACCUSED

1. The accused gave evidence. Two witnesses gave character evidence, Marissa Sullivan and Sean Sturzaker. Two affidavits by consent were tendered from Karen Bradley and Cheryl Hart. Both dealt with character evidence. There were documents that were tendered on behalf of the accused which included messages by way of social media.

Evidence-in-Chief of The Complainant

1. In 2017 she was sharing a house with RM. She met the accused at a nightclub in Melbourne. She was celebrating her younger sister's 18th birthday. After that evening the accused commenced a relationship with RM. Thereafter he would often stay overnight. The complainant had a boyfriend, CL. She had been in a relationship with CL for approximately four years. The two couples would socialise together going out, home cooked dinners, and watching movies on Netflix. She described it as double-dating. The relationship between the accused and RM ceased in November 2017. The complainant remained friends with the accused after the cessation of his relationship with RM.
2. RM moved out of the property. The accused continued to come over for walks, drinks, lunch and general friend things to do. She described her and CL's relationship as a "third wheel kind of relationship". He was quite close with CL. He helped them move house in late 2018. She moved to Sandringham to live with her father, younger sister JH, and CL. She described the accused's relationship with CL as "good male friends...they got along very well...I guess that we were all just mutual friends with each other".
3. Her aunt AG, and her husband Adam, owned a property outside of Echuca. It was a family meeting and camping place on public holidays, including Easter, Queen's Birthday and Christmas. Up to 50 members of the family and friends would stay there. She would often sleep in the back of her car. She planned to spend Easter of 2018 at the property. She said that at the time she made her decision she was not aware that the accused was going to Echuca/Moama. She said that she discussed with the accused it would be exciting to catch up and have a drink together and bring him to the property so he could meet her family and friends (transcript p 15).
4. CL was not going to the property for the holidays. He was doing a course with his flight school and would be studying Saturday and Monday because the school did not do public holidays.
5. She travelled to Echuca in her father's vehicle driven by her sister JH. Her cousin Tom Bain and Jade Kadir-Vella were also in the car. They left Melbourne on Friday 30 March 2018. When she left Melbourne she used Facebook Messenger to let the accused know that she had left. He notified her that he was in Moama with his family. Arrangements were made to meet at McDonald's at Echuca and take him to the property. They drove to the property.
6. She took the accused for a tour and introduced him to everyone. She began drinking cider. The accused began drinking but she did not know what he was drinking. At the camp she said she drank six ciders, two glasses hand poured Sauvignon Blanc (Ann-Marie wine), a beer, and three swigs of spirits. The Sauvignon Blanc was larger than a normal glass. She and the accused were driven into town by her sister. Before leaving, her and the accused divided a capsule of MDMA and consumed half each. She said at the time that she left the campsite she felt "quite intoxicated".
7. They went to the Border Inn at Moama. While Nathan spoke to his mother she changed in the car. She had bike shorts on. She changed into a denim skirt and a grey cotton V-neck. She wore the bike shorts because all her underpants were wet. She had discussed prior to the drop-off staying at the Riverview Cottages with Nathan and his family. This had been arranged at the campsite. The bar had closed at the Border Inn so they got a taxi to the American Hotel in Echuca.
8. At the hotel she put her leg on top of his when they were sitting in an outdoor area. The back of her knee was resting on his kneecap. They talked about their lives and the rough time she was having with CL. She believes she consumed one cider and was "fairly intoxicated...I was quite drunk at this stage". She said she was slurring her words and a bit unsteady on her feet. They left the hotel and queued for entry into a nightclub. She fixed the accused's singlet so they could gain entry. At the nightclub she drank a Canadian Club and Dry bottle, a second bottle, and a Berry Cruiser.
9. She believes they left the nightclub between 1.30am and 2.30am. She felt very intoxicated, tired and cold. She said she put a bottle of Canadian Dry in her pocket before she left the nightclub and "skolled" it outside before they got a taxi to the cottage. She got in the back of a taxi and felt ten times more drunk. After they got out of the taxi they sat at some picnic tables. All she remembers is sitting there. She believes she had a cigarette.
10. They entered the cottage. They went into a bedroom. She then took off her Converses, jacket and skirt. She still had her bike shorts on. She went to bed with her bralette and a long sleeved top on. She was not even sure if the accused was in the room. Her next memory is of someone kissing. She did not know if she was kissing back, and then everything blacked out. The next thing she remembers was the accused on the top of her having sex with her. She does not know how he got there or how it happened. She felt a lot of pain and friction in her vagina. His penis was inside her. She had her two arms above her head. She froze and did nothing. She closed her eyes and blacked out again. She thought that if she was asleep he would notice and he would stop. Her top was bunched up close to her chest. She did not know where her pants were or how they got off. She did not know how long the event went for. She intentionally played dead. She did not make a sound.
11. She remembers hearing him say, "Get on top, get on top". She remembers his arm was between her shoulder and elbow. He grabbed it, manoeuvred her on top of him. She was just lying there. Her next recollection is running to the toilet. She sat in the bathroom shaking and crying. She was confused about her clothes. She had no pants on and her top and bra were pushed up to her chest area. She then made some phone calls to her sister (3.02, 3.03 and 3.03 again) that went to voicemail. She called her cousin Tom, it went to voicemail. She called her aunt AG at 3.05 and requested her to wake her sister up. She did not hear from them and sent further texts. She called her aunt who had confirmed that she was on her way. She told her the address. She did not give any details of what happened, she was really confused.
12. She went back to the bedroom. She found her bike shorts in the sheets. She had her denim skirt on backwards. She slid her shoes on and she headed to the door. He offered her a cigarette. She accepted and he gave her two cigarettes. She then left the building. She made her way to the road and sat on the dirt against the pole. She said she was crying. She waited about 20 minutes. When they arrived she said to Jess, "He knows what he did was wrong. I was asleep". She hopped in the back of the car and fell asleep.
13. Back at the campsite she slept in the back of the car overnight. She spoke to her aunt and sister the following day. She told them "a little bit but I don't recall what I told them". She said to both, "I had a lot to drink and that when we got back to the Airbnb place that I was extremely tired. I got into bed fully clothed. The next thing I remember is waking up and him having sex with me whilst I was asleep".
14. She woke up hung over with a sore vagina. She went into town with her sister who obtained the morning after pill. After taking the pill she decided to go swimming. While getting changed she noticed five marks across her right breast. She had her sister photograph them. Her sister advised her boyfriend what happened. He later travelled from Melbourne to the campsite. Her and CL drove back to Melbourne the following day.

Evidence-in-Chief of The Accused

1. He met BH in July 2017 at a nightclub. It was her sister's 18th birthday. That night he met RM, who was the flatmate of BH. At a later time he formed a relationship with her. He would stay three to four nights a week at the apartment. He and RH would socialise with BH. He and RH broke up sometime in November 2017. He believes that his relationship with BH became closer after the breakup with RH. He was friends with BH's boyfriend.
2. In February 2018 he formed a relationship with JH. She described this friendship as one of friends with benefits. BH was not pleased with this relationship. On 28 March 2018 he received a message from BH asking if he wanted to go camping with her. His family every Easter would travel to, and stay at, the Moama Riverview Cottages. They had been doing that for about 15 years. It was arranged that they would meet up but there were no specific arrangements at that time. He went to Echuca by train on Friday morning. When he was at the marina there was a phone call between he and BH. She told him she was on her way. Arrangements were made to meet at McDonalds and he would be taken to the campsite. This occurred.
3. At the campsite he was introduced to BH's family and friends and they began drinking. He drank ciders, he and BH took MDMA. They had barbequed sausages and bread. He was sharing BH's alcohol. He had four or five ciders. He only saw BH drinking ciders. He believed she had three or four but he could not be sure. When he met BH at Echuca she asked him if he had a room to himself at the cottages. He told her he did. At the campsite she asked if she could stay at the cottages. He called his mum to confirm. She said yes and asked if CL was there or not. His mother wanted her to know the sleeping arrangements. He had a room to himself, as did his brother. He told BH of those arrangements.
4. They were driven by JH from the campsite to town. They went to the Border Inn; the bar was shut. He spoke to his family and friends. He and BH then left in a taxi to the American Hotel. They ordered a drink each and chatted. There was physical contact between them. She was putting her legs over the top of his legs. This was the first time she had done that. They went across the street to a nightclub; they were in a queue. Security was checking IDs and making sure people were okay to get in before entering. They met a couple from Victoria and socialised with them.
5. He had four or five drinks including Canadian Club Dry and Vodka Cruisers. He bought BH four drinks as well. He believed she bought one drink herself. It was his observation that she seemed to be in the same state as him, happy. They stayed at the nightclub for around three hours.
6. They left the nightclub and caught a taxi back to the cottages. He sat in the back seat and she sat in the front passenger seat. They both chatted with the taxi driver during the course of the journey. She was not asleep, nor did she pass out during the taxi drive.
7. At the cottages they went to a barbeque patio. They sat for about 10 to 20 minutes smoking and chatting. They went inside the cottage and went to his bedroom. It was a three-bedroom cottage. He went and told his parents he was home. He went back to the bedroom and got BH a bottle of water. He changed and got into the bed.
8. He was in his underwear. BH was on her phone when he got into the bed. He flicked the bedroom lamp off when he got into bed. He laid down facing the middle of the bed and BH rolled over and put her arms around his neck, head and kissed him. He kissed her back. There were no words between them. They were kissing for 30 seconds. She then placed her hand on his penis on the outside of his underwear. He rolled over on top of her and continued kissing. He began to finger her.
9. At that point her bike shorts were on. He fingered her for about 20 to 30 seconds and he asked her to take her underwear off because they were tight fitting. She removed her underwear. He removed his. He rubbed his penis against the entrance of her vagina for about 10 seconds before penetrating her. They were kissing and he was grabbing her breast. Her arms were around his neck and back and once he penetrated her she put her legs around his waist and the back of his leg.
10. When he was kissing and putting his fingers in her vagina, she was moaning. He interpreted that as her enjoying the acts he was doing. She was moaning and saying things like, "Oh God."
11. It did not last very long. He stopped after a minute or two. He removed himself from her vagina and said, "This is fucked," and left the room. It was fucked because he was having sex with someone that was in a relationship with a close friend of his and he was part of the cheating. He put his clothes on and left the room. He was shocked.
12. He went out to the barbeque area and had a smoke. He sent her a message that said, "Never happened."
13. He sent the message because he had, "Been partial to her cheating with one of my friends and sex should never happened. I just felt disgusted about it."
14. The message meant that he was not going to be the one to tell CL if she did not want to. He wanted BH to take from the message that he would not tell CL.
15. He then went back inside the bedroom. He saw the toilet door ajar and could hear her talking. He pushed on the door and asked if she was okay. She said, "No, go away, I'm peeing." He went back to the bedroom. He could hear her talking and he sent her a couple more messages. "Hurry up, go to sleep, shut up."
16. He sent that message because she was talking loudly right next to his brother's bedroom. He sent a message, "Whatever the fuck?" To him that was his state of shock. He was still trying to process "what had happened between us". He meant to convey that he was in the same boat as her in the way they were feeling.
17. At 3.17 he sent a message, "This is my fault." By that message he was trying to comfort her, trying to make her feel less bad about what happened between them so that he did not feel completely guilty about what had happened.
18. At 3.17 he sent a message, "I'm done." It was his state of shock, he did not know how to deal with it properly.
19. She came out of the bathroom. She was dressed. He asked her if she was okay. She said, "Yes." She asked him for a cigarette. He gave her two cigarettes and she left the apartment.
20. He went to bed and he thought about what happened for a bit. He watched something on his phone to try and help him sleep. The following day he sent a snap-chat asking if she was okay. He did so because he "wanted to see where her head space was at".
21. He denied that BH was very drunk. He denied having intercourse when she was asleep. She instituted the sex and was a willing partner. He denied that she pretended to be asleep. She was awake, conscious and consenting to the whole thing. He said he was squeezing her breast. He may have squeezed too hard. He picks his nails, they are jagged. This may account for the scratch marks. At no point did BH indicate that she was not consenting.
22. The evidence-in-chief raises the following issues for determination: 1. The complainant's state of intoxication. 2. The nature of complaint evidence including demeanour. 3. Reliability of the complainant's account. 4. Has the Crown proved its case beyond reasonable doubt?

a) The consumption of alcohol at the campsite

1. There is no evidence that supports the complainant's evidence that she drank spirits at the campsite. Her aunt referred to the complainant's sobriety as "just happy". The aunt would not normally take alcohol to share with other people at the campsite. She did not see the complainant drinking any alcohol other than from black cans.
2. The complainant's evidence was of consuming two large glasses of her aunt's Sauvignon Blanc. This was not supported by the aunt. She confirmed in cross-examination that BH's state of intoxication was one of "just happy".
3. There is no evidence to support the complainant's version she was "quite intoxicated" at the campsite before going to town.

b) The state of intoxication in the nightclub queue and inside the nightclub

1. It is the evidence of Ms Bronte Smith by way of agreed statement of facts that she had three to four drinks and "was still definitely sober" before she joined the nightclub queue. She spoke to the complainant in the queue. She (BH) "did not seem to be intoxicated. BH appeared to be talking normally and was not slurring...BH's pupils looked normal".
2. She gave evidence of dancing in the group for about an hour and there was no untoward indication of intoxication on the part of the complainant.
3. The complainant's evidence that she was "very intoxicated...I was quite drunk at this stage" before she entered the queue is at complete odds with the evidence of Ms Smith.

c) State of intoxication when picked up by aunt and JH

1. AG gave evidence that when she saw the complainant she was sitting to the side against a fence. She was asked about her state of sobriety before she entered the car. Ms AG said that "she appeared to be standing upright, wasn't stumbling".
2. In cross-examination she said that she did not think BH needed any assistance in respect of intoxication.
3. These observations are contrary to and not supportive of the complainant's claim for her level of intoxication when dropped off at the cottage by taxi.

The evidence of JH

1. One must treat very carefully the evidence of JH that when she first saw her sister sitting by the side of the road she "looked very intoxicated...she couldn't stand up properly, we had to prop her up".
2. AG did not make these observations and did not give evidence of propping up the complainant.
3. In JH's first statement to police she did not assert her sister was "very drunk". She said she did but when confronted with the statement conceded that she had not said that in her first statement. There was no assertion in that statement that her sister was slurring her words, nor did she assert in her statement that she had to be picked up and propped up.
4. In her first statement she told the police about the consumption of MDMA and its effect on her sister. It was not until four months (September) at the request of police she made a second statement setting out her alleged observations of intoxication.
5. I do not accept her explanation that "she had never taken a statement before I left information out". This does not accord with her ability to tell the police about MDMA consumption in the first statement. I reject her evidence as to the observations of intoxication of her sister when she was picked up by her and her aunt. I prefer the evidence of AG
6. The evidence of JH is inconsistent with part of the complainant's evidence that she had the ability to run from the cottage and is inconsistent with the complainant's ability to use her phone, send various coherent messages, dress herself, get out of the cottage and the cottage complex, give directions as to where she was, walk, run and smoke cigarettes.

d) Other Evidence

1. The other evidence in the trial demonstrates that the complainant had capacity entirely inconsistent with substantial intoxication: 1. She could walk and walk unassisted. 2. She could dance. 3. She could sit on the ground and get herself up. 4. She could run. 5. She could get in and out of a taxi. 6. She was able to use her phone to make calls. 7. She was able to coherently send phone messages with correct spelling and grammar to her boyfriend until approximately 2.20am and again to other family members at approximately 3am. 8. She was able to dress herself. 9. She was able to find her phone and take it to the bathroom to call her sister and other family members. 10. She was able to fix the accused's singlet to make it look more like a T‑shirt to facilitate his entry into the OPT nightclub 11. She was not refused entry at the OPT nightclub. 12. She was not refused service at the bar within the OPT nightclub. 13. She engaged in various thought processes whist in the bedroom with the accused.
2. She has said different things to different people. CL reported that she had six plus ciders. There is evidence she told the forensic medical officer that she usually drinks three and struggles with four.
3. I am not satisfied the complainant was intoxicated to the extent that she makes out, it is against the weight of the evidence and undermines her evidence and reliability. In my view she has exaggerated her alcohol consumption and/or the effects upon her.

Demeanour

1. There is evidence that the complainant was visibly distressed and crying when she left the accused's cottage. This evidence was not challenged.
2. Ms Cook in her submissions, to use her words not mine, "the case for the accused is in part that there was sex regret". She submits "regret" both involved in the consensual encounter. She further submits that the complainant regretted the consensual acts with the accused, particularly in circumstances where she had a boyfriend. She had lied to her boyfriend as to where she was staying that night and with whom. The accused stopped the sexual act and said, "This is fucked." She submits that this may have caused embarrassment and ultimately she was distressed and concerned as to what would happen to her relationship and the relationship of the accused and CL.
3. In my view, the evidence of distress is equivocal. It does not strengthen the assertion that what occurred between the accused and the complainant was not consensual.

Complaint

1. The Crown relies on evidence of complaint by BH to JH, the aunt, and her boyfriend.
2. The complaint to the aunt and JH was responsive to a leading question before any compliant had been made. "Is it Nathan?" (the aunt). "What happened, did he rape you?" (JH).
3. In relation to CL following JH advising him of the allegation, he asked the complainant, "Are you sure you didn't instigate anything?" She did not accept that CL said it to her. She did not accept that the aunt said, "Is it Nathan?" or her sister saying, "Did he rape you?"
4. The complainant says that when she was picked up by her sister she said, "He knows what he did was wrong, I was asleep."
5. JH does not support this version. She says that she asked, "Did he rape you?" and she was like, "Yes."
6. The complainant's version is not supported by the aunt who says she asked, "Is it Nathan?" and she said, "Yes."
7. There are differences in the versions of complaint given to the three witnesses. Two of the three complaints were responses to leading questions. I give them no weight due to this defect.
8. Due to the variation in complaint I am not satisfied that the complaint bolsters the credibility of the complainant or goes to the truth asserted.

Reliability of the Complainant's Account

1. The veneer of reliability of the complainant was stripped back in cross‑examination. She did not recall asking him to come camping with her or inviting him to come camping.
2. Exhibit A (messages from the complainant to the accused) was put to her. She said, "Hi. What are you doing over the weekend...I wanted to know if you wanted to come camping with me." It was she who was extending the invitation to him knowing that her boyfriend was unable to come due to his flight school commitments.
3. She was asked if she had arranged with the accused to stay with him before getting to the campsite. She said she did not remember. She answered many questions in cross-examination with, "I do not remember." Far too many. She was evasive.
4. She was taken to the first statement she had made to the police. She told the police, "I asked him if I could stay with him before getting to the campsite." She had asked him to come to Echuca for the weekend in the absence of her boyfriend and had arranged not to stay at the family campsite but rather stay with the accused.
5. She was then taken to exhibit 5 which were text messages between her and her boyfriend, CL. She had not mentioned to her boyfriend that she was camping with the accused.
6. The first mention of it was on 30 March 2018 at 2249 when she told her boyfriend that she was "hanging with Nathan". She did not say she had invited him camping, nor that she was staying at Nathan's parents' place.
7. She went on 2250 to say she was grabbing a beer. The shortness of the statement did not reflect what was actually happening. She was moving from hotel to hotel and nightclub with the accused with a mutual agreement that she would spend the night at his place.
8. In her first statement to the police she said that when she was dropped in town she had organised with JH to pick her up at 11am the following day. In evidence she said she had a dual plan of an 11am pickup or an earlier pickup. She did not tell police of her plan B, the earlier pickup.
9. The plan B was not supported by her sister who allowed her phone battery to die. She could never have been contacted by phone by BH. This is consistent with one plan only and that is to be picked up at 11am and not before.
10. In exhibit 5 she told her boyfriend that Nathan's family were in Echuca and had been coming there for 17 years. Echuca is 20 minutes' drive from the campsite. One can infer that she was trying to give her boyfriend the impression that the accused was in a different part of town to where she was.
11. At 2351 her boyfriend asked, "...are you guys sleeping in the caravan or the car?" She responded at 0011, "Me and Jess in the car, Nathan at his hotel."
12. She was not sleeping with Jess in the car. Before arriving at the campsite she had arranged to sleep with the accused at his accommodation. The message was an attempt to distance the sleeping arrangements of Nathan from her boyfriend. What she said to her boyfriend was a lie. It was a significant and damaging lie.
13. I reject her evidence that she gave several times that she had two plans afoot to be picked up by Jess. This was never said to the police who took four statements from the complainant.
14. After she said that Nathan was sleeping at his hotel her boyfriend asked at 011, "Did he end up going back? Isn't it 25 minutes away??" She did not directly answer this question. She did not tell him of the sleeping arrangements.
15. At 0037 she said, "We are at the weirdest place," but did not say who the "we" were.
16. At 0217 she sent a text, "I'm going to sleep." She did not know where she was when she sent that text. She may have been at the OPT nightclub or sitting outside skolling the Canadian Dry bottle she had taken out of the club.
17. One of the questions in the trial is the state of intoxication of the complainant. I have dealt with that to some extent before. But in exhibit 5, the boyfriend at 2314 wrote messages that contained typing errors. At one stage, 2317, she asked him if he is trashed, no doubt as a result of her observation of his message.
18. Her messages are error-free both in spelling and grammar. She agreed in cross-examination that this demonstrated coherent, logical thinking and actions on her part.
19. The overall submission was that she was not as intoxicated as she professed due to the correctness of the messages. There is much to this submission.
20. It was submitted that the following could not occur without waking her up: the complete removal of tight bike shorts; pulling of her bra up and exposing her breasts; the initial insertion of his penis into her vagina. That submission does accord with common sense.
21. She said that she was frozen in fear but somehow he was able to manoeuvre her so that she ended up on top of him while penetration occurred. Then her memory went blank.
22. The physical scenario of her ending up on top of him does not ring true for someone who says they were frozen. She told the police that she had a "feeling we had sex". This was in stark contrast to her evidence that she was dry in her vagina. There was friction and pain at the time of intercourse. It is a marked variation.
23. She was evasive in cross-examination with constant repetition of the answer, "I cannot recall."
24. The complainant had a boyfriend. The complainant had not told her boyfriend that she had pre-planned to meet the accused while away for the 2018 Easter weekend. The complainant misled and lied to her boyfriend about the meeting and where she had planned and intended to stay for the night of 30 March 2020. She was lying in her text when she said she was going to sleep.
25. She had complained to the accused that sex with her boyfriend was not great. She had placed her legs over the accused at the American Hotel. She lied to her aunt when she said she stayed in a spare room. She had organised to sleep in the bed of the accused, not a spare room.
26. The complainant saved the name of the accused as Grace Bae. Early in her evidence she did not concede that the accused's number had been saved in her phone under a girl's name. Why did she give the accused a girl's name to save his number on her phone? She did not give a satisfactory explanation.
27. It is open to infer that she wished to hide the identity of the accused from others including her boyfriend. Why would she continue to follow the Instagram account of the accused after her version that he had had non‑consensual intercourse with her? It defies common sense or logic. She refused to concede this fact until she was shown a Facebook Messenger message between herself and RM. This reflected adversely on her credit. I have a strong unease about the reliability of the complainant's evidence.
28. Her bike shorts were tested for semen. There was none. The absence of semen in the complainant's bike shorts is instructive. The complainant's evidence is that she left the accused's cottage in the bike shorts; she slept in the bike shorts; she was wearing the bike shorts when she woke later that morning; and that in the morning she woke she felt semen coming out of her vagina. If she felt semen coming out of her vagina into her bike shorts as she asserts, there would be an expectation of the finding of semen and DNA of the accused if it was truthful.
29. The breast scratch is consistent with the evidence of the accused that he squeezed her breast with chewed fingernails and squeezed it too hard. The aunt said she saw redness to the neck of the complainant. The complainant did not give evidence of this. She had her sister photograph her breast but she did not ask her sister to photograph her neck.
30. Dr Davis, after a thorough examination, did not observe any redness to the neck.
31. The accused gave evidence in the trial. He was not required to give evidence or expose himself to cross-examination but he chose to do so. I listened intently to the cross-examination of the accused. I have re-read the transcript of his evidence and cross-examination on several occasions. He was not shown to have lied. He firmly denied the allegations.
32. He is a person of good character and I give myself the following directions when considering his evidence - unlikelihood of guilt and more likely than not that he told the truth.
33. Evidence of good character is: "Notoriously important in cases of serious sexual assault which turn upon word-on-word factual disputes between the complainant and the accused": Xu v R [2019] NSWCCA 178 Harrison J (Bathurst CJ agreeing) at [37].
34. The accused denied that any sexual or intimate acts occurred without the consent of the complainant. He denied knowledge or recklessness as to the lack of consent and that there was no reasonable basis for believing the complainant was not consenting.
35. The Crown must satisfy me beyond reasonable doubt that I should reject the accused's evidence as a reasonably possible version of the facts. I find that the Crown has failed to eliminate a reasonable possibility that the version presented by the defence is true. The Crown has failed in its obligation to persuade me of the accused's guilt beyond reasonable doubt.
36. I find the accused not guilty and an acquittal will be entered on the record.

Amendments 04 August 2020 - Added '(No 2)' to Case name. 04 August 2020 - Replace 'Offender' with 'Accused' on cover sheet. 06 August 2020 - Anonymising of witnesses. 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: 06 August 2020