Whitehead v Moon [2013] ACTSC 243

Whitehead v Moon [2013] ACTSC 243 - ACTSC 2013 case summary — Zoe

[157]

The victim in this matter is a 38 year old female who until this incident was a virgin. She is extremely traumatised by the incident and seeking assistance for this. The victim does not want the matter investigated, however is happy at this time to have a report generated. The victim and POI have known each other on a professional basis for approximately two years. During that time a friendship has developed. The POI is divorced and resides somewhere in Canberra with a girlfriend. During the course of the friendship the POI has touched the victim and caused her to feel uncomfortable. Once when intoxicated the victim and POI have in the words of the victim acted "inappropriately". When questioned about this she stated they kissed passionately, before she stopped, leaving the area. The POI and victim had cause to attend Sydney for a conference. The victim was apprehensive about this however wishing to remain professional has agreed to attend. The arrangements were made by Child Support Agency for both to attend the conference. However, the accommodation was a serviced apartment with two bedrooms and two bathrooms. Again the victim was not comfortable however agreed to this wishing to appear professional. On 13 August 2007 the victim and POI attended Sydney via airplane from Canberra. They arrived approximately 1930. Entered the room and left their luggage before going to dinner. At dinner the victim consumed one glass of red wine. After this the victim told the POI that she would not be having any more. The POI paid no attention to this and continued to purchase red wine for the victim. By the time the victim returned to the serviced apartment she felt very intoxicated. The victim does not usually drink alcohol. Upon realising her level of intoxication the victim has gone to the bathroom to shower in an attempt to sober up. While in the shower the POI has entered bathroom naked, offering to wash her. This was refused and the POI left the room. The victim has left the bathroom dressed in her pyjamas. As she walked past the bedroom occupied by the POI she saw him laying on the bed naked. The victim entered her bedroom and closed the door, the POI has entered the room forced her on the bed and had penile vaginal intercourse with the victim. The victim was asking him to stop but was also very out of control due to her level of intoxication. The victim felt significant pain as the POI penetrated her. As previously stated the victim was a virgin prior to the assault. After the assault the POI said "that was terrible, I can do better than that. It's alright I can practice all night". After this comment the victim fell asleep. Whenever the victim woke during the night the POI would attempt further intercourse, however the victim avoided this. The next morning when the victim went to the bathroom she found she was bleeding. Upon checking the bed where she had been sleeping the victim described the bed as if someone had been murdered there, due to the amount of blood. The victim has sought help from medical professionals and Rape Crisis Centre. She is also off on sick leave, with no intention of returning to the office. When questioned about her safety from the POI she felt that he believed he had done no wrong and in the short term would not contact her, however she believed that he would contact her again and cause trouble. The victim has changed her phone number so that the POI is not able to contact her. Police contacted the POI and informed him that a complaint had been made in relation to an incident in Sydney last week. It was requested that the POI not contact the victim under any circumstances or police would consider taking out Apprehended Violence Orders to assist in victim protection. At this time there is no further investigation required. Nil crime scene, nil medical evidence, nil action at request of victim. Duty officer and detectives notified.

[161]

I'm not at CSA anymore. Big dramas this week. Between you and me the story is:

Monday 13 August - No not taken for an answer; no longer a virgin (yes that's right, first time) and the bed a bloody mess.

Tuesday - Wednesday 14 and 15 August - Considered leaving conference but couldn't cope with the embarrassment as to why, so disassociated and carried on as per normal, although kept my distance. Spent first morning in and out of loo until the bleeding stopped around lunchtime. Suggested we attend different sessions, so I kept my distance. Tuesday night we went to Kings Cross for tea but nothing happened despite his continual suggestion.

Thursday 16 August - Back to work. Didn't realise how bad I was until I felt sick at his smell in a meeting that he was in.

Friday - Didn't go to work - gave the excuse I had a migraine. Instead tried to get my tax together so it could be done. Wasn't intending to carry on any more. My friend came around and interrupted my train of thought across the weekend.

Monday - My director texted me as to where I was and if I was okay. Immediately panicked, too scared to reply. Wanted to hide. Someone knocked at my door, I ended up really scared and cowering in the corner of my kitchen. Rang my friend, she came around and we went to the Rape Crisis Centre. Still trying to hide what was going on. On the way back from the centre my parents rang saying they had been contacted by the ACT Police as I had been reported missing. Police had a locksmith break into my home whilst we were out. My middle management company was looking for me and it wasn't even midday. All this was started by my director. My life had suddenly been turned into a living hell and the only way out was to say it how it was. So now half of Canberra know that it was my first time, they know about my private life, which generally no one gets to know and I'm just wondering how the hell I am going to manage to move on. So I'm not going back to CSA, I've applied for Workcare. My parents travel to Canberra probably more upset than me and have been with me ever since.

Tuesday - It all hit me and I thought I was about to be a cot case.

Wednesday - Making appointments.

Thursday - Go to Canberra Hospital Sexual Health Unit to start being tested for all diseases. Go back in two weeks for blood tests and then three months for HIV.

Friday - Today I will finally get my tax done.

Anyway, quite an eventful couple of weeks. You know what they say "careful what you wish for". I thought I was going somewhere where I would feel very safe and secure and it ended up being the complete opposite. In fact my whole life has been turned upside down. To avoid the possibility of meeting this man:

[176]

Q It has been alleged that about 11:00 pm on the night of 13 August 2007 Ms Whitehead was having a shower when you entered the shower. Is there anything you can tell me about that?

A Yes, we had been drinking quite heavily from about when we got there from about 6:00pm at a bar in Oxford Street. We moved to another bar, we were very friendly because we already had a relationship in December so she was holding my hand and we were kissing. She insisted we visit several sex shops, about 11:00. I had to drag her out of the last one before she made a fool of herself. We were both quite drunk. We went back to the hotel, she stayed outside for a smoke, I went upstairs, had a shower. So I finished. I heard her go into the shower, I went in and gave her a kiss in the shower and let her get dry and get changed, then when she came out we started kissing again. As I kissed her neck she took off her pyjamas and we proceeded to make love, mainly oral, she spent at least half an hour on top of me in the sixty-nine position and I was too drunk to be of much use afterwards, fell asleep and probably an hour and a half later she woke me for a second session. It was nothing but oral. We fell asleep, woke early in the morning and I went and had a shower and she had a shower too. I went and got us breakfast, we had breakfast and attended the conference the first day. Some sessions we attended separately and some together and we compared notes and had lunch, morning tea, afternoon tea and that night she wanted to go to the Cross so we caught the train to the Cross, had chips and a drink at the Bourbon, then walked back down through the Cross to the train station, she wanted to go to another sex shop, but it was too early. So we caught the train back to the apartment, watched a movie and went to bed separately. By this stage it was clear she didn't want to proceed any further to impact out working relationship and I was happy with that.

We got up the next morning, got breakfast, we attended the conference together, shared lunch, talked. Caught the taxi to the airport, where we parted for separate flights. That's it. You must remember that we, towards the end of the time at Immigration, flirted. She had me take her to a sex store at Fyshwick to buy a vibrator and we made out in her car for over three hours one afternoon. We had already been intimate and the conversation while we were drinking was intimate as she described going back to buy more vibrators and other things in her life, how she seduced her previous boss at the Department of Workplace Relations.

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Judgment (247 paragraphs)

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