14:03, July 20 79 0 theguardian.com

2017-07-20 14:03:03
'This doesn't get to be over for me': the rape case that put consent on trial

It took the Guardian more than two months to get hold of the full judgment in the Luke Lazarus case, the distressing and polarising trial that saw the son of the owner of Sydney’s Soho bar first convicted, and then acquitted, of the rape of an 18-year-old girl in an alleyway in 2013.

For a while, open justice looked decidedly wobbly. Judge Robyn Tupman’s judgment came down on 4 May and we asked for a copy of her reasons shortly afterwards. Sorry, came the reply, Her Honour has gone on leave and needs to check the transcript.

Over a month later, we were told the judgment would be available for “viewing” at the district court registry at the Downing Centre in Sydney. A day later, there was a new message – it wasn’t available for viewing because the judgment now was subject to an appeal by the director of public prosecutions – novel grounds for refusing access to the reasons of a trial judge.

Entreaties were made to the Department of Justice and viewing rights were allegedly restored, except that the court registry hadn’t heard about this and refused access, saying the transcript was now being read by Judge Leonie Flannery – another unexpected development.

New submissions were made to the attorney general’s office and the Department of Justice. A day later, a version of Her Honour’s reasons arrived by email allowing for the first time full access to the outcome of the second trial of the rape case – a case that goes to the heart of contemporary mores, and the place where alcohol, sexual adventurism and the law collide.

It would normally be expected that judicial reasons of significant public interest would be available fairly promptly on Caselaw, or any of the other online judgment resources, as is the case with the supreme and federal courts.

Justice Derek Price, the chief judge of the New South Wales district court, said that “due to limited resources, the fact judges are busy presiding over court cases and hundreds of judgments are made every year (some that have taken a number of hours to hand down) only a limited number are able to be published on Caselaw”.

For the public to access the court’s work more comprehensively, he said, it “will require more resources”.

This story is not for the faint hearted. There are confronting and disturbing elements.

The trials

Judge Tupman acquitted Lazarus on an indictment of rape because she found that he thought the complainant was consenting to penile anal intercourse, even though she didn’t believe she was consenting.

It’s a tangle that the judge spent the better part of 74 pages trying to reason. It was Lazarus’s second trial on the indictment which read: “On 12 May 2013 at Potts Point in the state of New South Wales, [the accused] did have sexual intercourse with SM, without the consent of SM knowing she was not consenting.”

In April 2016 the court of criminal appeal ordered a new trial because it considered the original trial judge, Sarah Huggett, had misdirected the jury on the question of the accused’s belief in the victim’s consent.

By that stage Lazarus had served 11 months of a minimum three-year prison sentence.

Lazarus then made a successful application to the district court for a trial by judge alone, largely on the ground that media reporting of his earlier conviction would prejudice a jury – demonstrating once again that faith in the jury system only goes so far.

This is a story of a young woman, according to the evidence a virgin, 18 years old, from the NSW Central Coast, on her first trip with friends to the nightlife and bars of Kings Cross, ending up in an alleyway being anally penetrated by the son of the owner of the Soho bar in Victoria Street, within minutes of meeting him.

It was one of those nights. Pre-fuelling with three-quarters of a 700ml bottle mixed with bourbon and coke, about seven standard drinks according to the judge; half a teapot of a “fairly strong” cocktail at the World Bar; down to the Soho bar for a vodka and cranberry juice; back to the World Bar for a vodka and orange; a meet-up at McDonalds in Darlinghurst Road; and then back to the Soho.

The judge assessed her consumption as 10 standard drinks but found that she was “not particularly intoxicated ... or substantially intoxicated”. The crown and the complainant contended that she was “intoxicated and confused”.

Lazarus introduced himself at the Soho bar, where he soon made known that he had a special status in the place. Up to then, he’d had about nine drinks and the judge found that he was “moderately drunk ... perhaps more than that”. The extent to which the judge took account of the accused’s intoxication and the part it played in his state of mind is an issue for the court of criminal appeal.

Fairly shortly after meeting, they were kissing each other passionately and the accused asked whether she would like to go somewhere more “private”. This turned out to be an alleyway at the back of the Soho.

Before arriving outside, there’s CCTV footage which shows the complainant pointing back up the stairs she had just come down.

The crown contended that this indicated she was pointing up towards her girlfriend who had come with her to the bar, but there was no evidence on this point at the trial even though it suggested some reluctance on her part.

Once outside, there was further passionate kissing and touching, referred to as “aggressive hooking-up”. By this stage Lazarus had an erection, but the young woman at that point said “I should go back to my friend”.

The accused then said, “No, stay with me, your friend won’t miss you”. He put his hand under her skirt and started to pull down her underpants (referred to by the judge as “undies”). She pulled them up again.

The complainant’s evidence was that he then told her to “put your hands against the fucking wall”, and that at this point his tone changed to one of greater impatience. Apparently, his view was that their interaction would lead to consensual sex.

With her back towards him, he then pulled down her underwear and stockings. The complainant said she didn’t attempt to leave because she felt scared and did not know what to do – even though the judge found that at that point she was not being physically mistreated by the accused.

Tupman said: “No doubt she was, by then, starting to feel that she was in a difficult situation but I accept the evidence of the accused, that when he asked the complainant to turn and face the fence, she did so and she pointed her bottom towards him after he pulled down her undies and she did not try to pull them up again, nor did she try to stand away from the fence or take any other physical action.”

It’s important to note that it is not necessary for lack of consent to be established by means of the complainant’s resistance.

Here the evidence becomes graphic and contradictory. Penetration against the wall was unsuccessful and she was asked to get on all fours on the ground and arch her back. She said she obeyed him because she was scared and again did not know what else to do, but by no means in her own mind was she consenting.

There was a conflict in the evidence about how intercourse actually occurred, with the judge concluding that the complainant’s version was not reliable, although she was not attempting to be misleading.

This revolved around some explicit conversation between the two. She told the court that when Lazarus was attempting to penetrate her anus she said, “Ow”. He then said, “Shit you’re tight” and the complainant replied, “What do you expect, I’m a fucking virgin”.

The judge found this exchange was more likely to have happened when he was attempting unsuccessfully to penetrate her vagina. None of this could be taken as an indication that she was consenting, in her own mind.

She also gave evidence that she said “Stop” and repeated that she had to get back to her friend. This was denied by the accused and the judge accepted his denial because she found the complainant’s evidence about what happened during sexual encounter to be unreliable. This was also connected to the judge’s finding of the accused’s “good character”.

Nonetheless, she had told the police after what happened that she continued to tell “the male” that she needed to get back to her friend.

There was evidence that on another occasion in a room at the Holiday Inn, quite close to the Soho bar, and with another woman, the accused was told to stop just as they were about to have sex – and he did stop. The judge also took this into account as relevant to Lazarus’s good character.

While in her own mind she was not consenting, whether the accused knew that was another matter. She thought she had just been raped and presumably that’s why she pressed ahead with the charge. For his part, the accused immediately regretted what had occurred.

There was further evidence that went to whether the accused had reasonable grounds for believing the complainant consented. After sex in the alleyway and before she returned to her friend, the complainant was asked to put her name into the notes application on Lazarus’s mobile phone.

The judge said this disclosed an “unpleasant” fact about the accused – namely that he kept a “trophy” list of girls’ names, about 15 in all.

At the original trial, evidence of additionally unpleasant material emerged. In a text message to a friend the afternoon after the incident, Lazarus said: “I honestly have zero recollection of calling you ... Was a sick night – took a chick’s virginity.”

His friend replied: “bahahahaha nice popping does cherries ...”

Lazarus replied: “... it’s a pretty gross story tell ya later.”

In any event, Judge Tupman observed that the complainant had said she entered her name in his phone because she didn’t want a fuss and so she could leave. The accused argued at the trial that the entry of her name into his phone showed that he believed she had consented, because if he believed he had just raped her, then the last thing he would do would be to create a link between them.

There was further contention about evidence she gave at the first trial and her evidence at the second trial as to whether she had entered her name on a blank notes page or at the bottom of a list of names.

It emerged as an issue because the accused suggested that the reason she made a false allegation of sexual assault against him, where at least to his belief she had till then consented, was because she felt demeaned after realising she was part of his list of “trophies”.

By the time the complainant was back on the street with her friend she was sobbing, hysterical and in pain. She was also bleeding.

The judgement

In a case such as this for the prosecution to be successful, it has to prove beyond reasonable doubt three essential elements: that the accused had sexual intercourse with the complainant; that the complainant did not consent; and that the accused knew the complainant was not consenting.

The accused’s state of mind is the factor to which the judge repeatedly returned. There are further factors that are determinative of knowing whether the complainant consented. They can be found in the Crimes Act: that he knows the complainant does not consent, or; that he is reckless as to whether she consents, or; there are no reasonable grounds for believing there was consent.

The judge found that the evidence established that the complainant did not consent to anal sexual intercourse, but she did find that there was no evidence to support a finding that he knew she was not consenting, nor was he reckless, nor had the crown proved where there were reasonable grounds for believing the complainant was not consenting.

Some may be dismayed or confused by this. Here, a young man was found to have had no reasonable grounds for believing a younger and inexperienced woman was not consenting to anal sex in an alleyway having only met her a very short time earlier.

The crown said the circumstances of the encounter, the sexual event, and the location would exclude any possibility that the accused’s belief could be reasonable.

This was not accepted in view of the evidence of various witnesses which “allowed some insight into the contemporary morality of that group of young people”.

A jury found Lazarus guilty of the charge, and a judge alone acquitted him. Now it’s back to the court of criminal appeal for another attempt to clarify a judge’s reasoning on consent and whether there were no reasonable grounds for believing the complainant consented.

The grounds of appeal are here.

The complainant posted some heartfelt thoughts on Facebook after Lazarus was acquitted by Judge Tupman:

I lost something that night all those years ago and I’ve been searching for it ever since. I’ll let you know how it goes.

The reality is this doesn’t get to be over for me. I don’t get to know who I would be today had this not happened to me, and I mourn for that person. She seemed like she was on her way to being great.

Judgment in full: R v Luke Andrew Lazarus