R v KT

R v KT - [2009] NSWDC 224 - NSWDC 2009 case summary — Zoe

[20]

12 The complainant's evidence included the following propositions: · The night before the barbecue and the alleged sexual assault she stayed with the Applicant at the apartment. The next day they went to the beach together at Maroubra and returned about mid afternoon. · About a quarter to seven she went to the barbecue in the courtyard off a downstairs apartment occupied by other naval personnel with whom they were friends. They were drinking alcohol at the barbecue, but the complainant said that she was in control notwithstanding the 6 to 10 drinks of bourbon and coke that she'd consumed. · When she went downstairs to the barbecue the Applicant went to Homebush to pick up his former girl friend, Dale Kratzman, to bring her to the barbecue. · About midnight the Complainant left the barbecue to retrieve her jumper from the Applicant's apartment. She found the bedroom door locked, and so knocked and called out that she wanted to get her jumper. There was no response. She went to the balcony crying upon the realisation that he was in the bedroom with his former girl friend. In the apartment they argued about what had happened in the bedroom. The argument continued downstairs. · She alleged that once things calmed, the Applicant asked whether she wanted to resolve their difference through sex. She said no, went upstairs, and dressed into her pyjamas and went to bed. The Applicant accompanied her to the apartment, but remained in the lounge room with a computer game. She watched a movie on a lap top computer for an hour, and then the Applicant entered the room and asked her if she wanted to have sex. She said no. He was undressed. He entered the bed, forced her pants off, forced her legs apart as she attempted to keep them together, and as she cried and repeated her requests for him to stop he penetrated her vagina with his penis. · After this she rose from the bed, went to the bathroom and showered for half an hour feeling pain in her vagina and to her head from when it was pressed against the wall. She dressed and went to the apartment downstairs where she spoke to Michael Lloyd, one of the occupants there. She could not recall what she said, but he allowed her to sleep on his bedroom floor. · The next morning she returned to the Applicant's unit. He wasn't there. She changed from her clothes and went to bed and slept. · In the early afternoon she went with the Applicant to the beach at Maroubra, and alleged a conversation in which she told him that he had hurt her. She said that she went with him because she wanted to forgive him and didn't want to lose their relationship. She stayed with him that night for the same reasons. · On Monday she returned to work and spoke to her friends about the incident but couldn't recall what she said. She spoke to an officer about all that occurred, but could not remember on what day she did so. · She said that on the Sunday night she telephoned her father in Queensland but spoke to him only briefly as he was going out. She spoke to him again on the Monday night and told him what had happened, but could not recall what she said. In cross examination she was reminded of her statement, and that she there said she called her father from her ship about 1:30 pm on the following Monday and told him the Applicant had hurt her, and that he advised her to speak to someone on the ship. · She said that she and the Applicant mutually ended their relationship on the Monday night.

[25]

17 In response to cross-examination he confirmed the statement he made to police when the events were fresher in his mind. He acknowledged the following: · He saw no one sleeping on the floor of his bedroom in the early hours of the morning after the barbecue. · He did not have any conversation with the complainant in the early hours of the morning after the barbecue. · The complaint made by the complainant on the Monday evening was in terms that she was keen to have sex with the Applicant but half way through she wanted to stop. · The complainant said that she was "pissed off" with the Applicant because of his contact with his former girlfriend. She was crying when she said this. She told him that she loved the Applicant, would be with him for a very long time, and was going to introduce him to her father. 18 Nicholas Rollins shared the apartment with Mr Lloyd. He first met the Applicant at the barbecue but knew the complainant from two earlier recent occasions. He described the barbecue and who attended. He met the Applicant's former girl friend at the barbecue and spent time speaking with her. He spoke of the following: · About 10:30 pm or 11:00 pm the Applicant took Ms Kratzman to his apartment so that she could use the bathroom. · The complainant at the time was outside near the barbecue. About 10 minutes after they left she said that she was going to check on them. She returned about 15 or 20 minutes later, upset, with tears in her eyes. The Applicant and Ms Kratzman returned a minute or so after the complainant. · The Applicant and the complainant went aside from the others and spoke together. He remained speaking with Ms Kratzman. · About 1:00 am or 2:00 am the guests began to leave. Ms Kratzman was intending to stay and sleep on the lounge. · The Applicant and the complainant came into the apartment yelling at each other. They were relatively drunk. Their argument continued for about half an hour. Ms Kratzman went to speak to the complainant, and Mr Rollins spoke with the Applicant who was crying and saying that the complainant didn't trust him. Mr Rollins offered encouragement suggesting that her behaviour was because of the alcohol and that all would be well in the morning. · He and Ms Kratzman slept in the lounge room, and Mr Lloyd and Cindy slept in his room. He was the last to retire, after some tidying up. He rose at 7:30 am, had some breakfast, and continued to tidy. The others progressively woke up, and eventually went outside to have coffee. These included Michael Lloyd, but Mr Rollins acknowledged that he might have been mistaken about his presence. · The Applicant and the complainant came downstairs. They were together outside in the courtyard; she sat on his lap sharing hugs and kisses. · The Applicant took Ms Kratzman home about 9:30 am or 10:00 am, and the complainant burst into tears. Thereafter the complainant began to ring him every 5 or 10 minutes. She did so perhaps 8 or 9 times. Mr Rollins heard the Applicant say he would be only 5 minutes in one of the calls when the complainant put her phone on loudspeaker mode. He saw a text message from the Applicant informing the complainant that he had just dropped Ms Kratzman off and would be back shortly. · Later that day the Applicant and the complainant went out. · The following day, Monday, he was a member of the group that travelled to work together by the train, including the Applicant and the complainant who sat together. · He saw the complainant on Monday at work somewhere between 1:00 pm and 2:00 pm when she showed him messages on her phone from the Applicant. These were, "I can't do this any more. I'm struggling. It's over." · He saw the complainant the next day when she said to him, "I have some news. I was raped on the night of the barbecue."

[33]

26 The last witness to speak to these events was Dale Yvette Kratzman, the Applicant's former girlfriend. I found her to be a credible witness. She has known the Applicant since October 2007 and they were boyfriend and girlfriend for about six weeks from January 2008. Her evidence included the following: matters: · She confirmed that the Applicant took her to the barbecue and the following morning drove her home. · She was introduced to the complainant as his girlfriend. · About 6:30 pm or 7:00 pm she used the Applicant's bathroom. When she came out the Applicant had come up with another young man. · Later in the evening the Applicant was intoxicated and asked to speak with her. They went to his apartment. She asked Ms McFadden to go with them when the complainant told him not to go up there with her. The complainant was yelling, but she thought that the Applicant calmed her down. · Upstairs he expressed his feelings, but she did not want to hear him speak of these matters and told him to speak with Ms McFadden. She went into his room and listened to music on her iPod to avoid the risk of overhearing the conversation. The Applicant came into the room and went to the lock the door, but she told him not to. She heard the complainant yelling outside, "Don't be in the room with her. Don't be doing anything with her." · The Applicant went to open the door, but as he and the complainant were both pulling at it and thereby preventing it from opening, she accused him of having locked it and of cheating with Ms Kratzman. · Ms McFadden took her downstairs, after telling her that she thought the complainant might attack her. She wanted to go home, but decided to sleep there. Mr Rollins was on one lounge, and she was on the other. They provided her with pyjamas. · About twenty minutes after she returned downstairs there was a lot of screaming and yelling as the complainant and the Applicant came into the apartment. She said there were a series of text messages thereafter from the Applicant, to which she replied, from about 1:50 am until about 2:30 am along the lines of, "What are you doing? I can't sleep. I don't want to be up here." He may have also said something like, "C an I come down ." He also called her from his mobile for a 30 second conversation at the conclusion of which he said, "Oh crap, she's coming now. I've got to go". · She woke about 6:30 am. Those present began tidying up whilst she sat with the complainant and talked. The complainant said that she hadn't slept, that she was worried about the Applicant, that she loved him, and that she would do anything for him. In a later conversation the complainant asked whether the Applicant had said anything to Ms Kratzman. · On Monday afternoon the Applicant sent Ms Kratzman a text saying that he was breaking up with the complainant. She next heard from him by text message sent as he was leaving the police station, telling her that the complainant had alleged the sexual assault. He told her that they'd had sex, but that it was consensual.

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