No justice, no trust: victim’s grief in NSW DPP’s decision
Lauren James’s dropped rape case is one of up to 400 caught in a wide-ranging internal audit ordered by NSW DPP Sally Dowling, after judges criticised her office for running rape trials that did not have enough evidence to secure a conviction.
It’s November 29, 2022, and beneath an outdoor pergola Lauren James is sobbing next to her friend.
She’s distraught. She struggles to string a sentence together. But she’s trying to explain how hours earlier a consensual sexual encounter with a stranger descended into what she believes was a violent rape. “He started hitting me,” Lauren says. “The first time it was just like a slap, but then they got harder and harder. And I said … ‘this ends here’.”
Lauren keeps an eight-minute recording of the conversation in her iPhone Voice Memo app. She says she has never listened to it, but is grateful to her friend’s husband for recommending she tape her testimony that night.
In the recording, she recalls her rapist flipping her around her bedroom, and dangling her by her legs. She says he came up behind her and tightly wrapped his hands around her throat, despite her trying to pry them away.
After more than 18 months, numerous meetings with police, DNA swabs, trips to the doctor and prosecution conferences, Lauren was prepared to have her matter heard in court. She had been told the evidence was strong.
But just six weeks out from trial, on May 28 this year, it was abruptly dropped by NSW chief prosecutor Sally Dowling SC.
Lauren’s case is one of up to 400 caught in a wide-ranging internal audit ordered by Dowling, after several NSW District Court judges criticised her office for “time and time again” running rape trials that did not have enough evidence to secure a conviction.
Judge Robert Newlinds last year lashed Dowling’s office for making a “lazy and perhaps politically expedient” referral to the court in a matter that saw a man jailed for eight months before being acquitted. In a later case, judge Peter Whitford said the ODPP ran “meritless” cases, and urged other judges to “expose” problems with the administration of criminal justice in NSW.
Lauren, and police officers working on the matter, have called for the Office of the Director of Public Prosecutions to reinstate the charges, with senior constables criticising the “unacceptable” outcome of the case being dumped so close to trial.
“I put my trust in the prosecutors, who seemed so supportive and gave me all the best outlook until six weeks before,” Lauren tells The Weekend Australian. “Then, they picked it up and they threw it in the bin.”
The Weekend Australian has used a pseudonym to protect Lauren’s identity.
The assault
Lauren is a single mother of two. The father of her children has been going through a “hard time” since the separation, and having various money issues.
“I was helping him financially. I blew through all my savings, and Christmas was fast approaching,” she says. “My landlord had said he was putting the rent up, just like everybody’s. I’m a single mum, not working, and my rent was $640 a week. I was scared.”
One evening, Lauren was browsing an online forum for budgeting mums, when she saw someone suggest the SecretBenefits.com website, an online “sugar daddy” forum boasting “millions” of users exchanging money for sex.
“I joined the site, and this guy, ‘TedBear05’, reached out to me and an agreement was made,” she says. “Prior to the agreement being made, I screened him. I said: ‘Are there any kinks? Is there anything I need to know, or anything that would shy away a woman in terms of danger?’
“He said no. He said he was a gentle pleaser. He was more interested in pleasing me.”
They arranged to meet at Lauren’s house, while her children weren’t home. He arrived half an hour late, and the pair went straight to Lauren’s bedroom.
“He immediately pounced on me,” she says. “He goes right straight into it … launched himself at me, tackled me. I thought it was a bit rough, but maybe he might settle down. Next minute, he’s tearing my clothes off.”
While consent for sex was established before TedBear05 arrived, Lauren says “he didn’t seek ongoing consent” and started doing things she felt uncomfortable with, including digital anal penetration.
“He grabbed me by my hips, viciously,” she says. “Put me on my hands and knees. That’s when he hit me three times. The first time was in the ribs, the second time was my left eye socket, (then my) cheekbone.”
Lauren gestures to the side of her face, to indicate light swelling still visible around her eye. She says he hit her left buttock so hard she almost fell off the bed.
“With that, I scurried to hide in the European pillows and I said ‘Right, we’re done here. This ends now’,” she says.
“He came toward me and by that stage I’d cornered myself amongst all the pillows and I couldn’t move. He said ‘I’m really sorry, I’m sorry, I’m sorry. I don’t know what you’ve been through’. He cupped his hands around my face and begged me for forgiveness. I said nothing.”
As Lauren retells the story, she begins to cry. Her voice cracks as she explains how terrified she was. “He’d hit me three times. He already told me that … he hadn’t got consent about anal penetration.”
He asked her if she wanted to keep going. “I went ‘mm-mm’, shaking my head. I couldn’t speak. I was scared he was going to hit me again,” she says.
Lauren says he forced his penis into her mouth.
“I continuously kept begging him, ‘please, just give me a break, please give me a break’. At one point I said ‘just do what you have to to make this over with’ … I went to stand in the bathroom, and I looked at myself in the mirror, and I was crying, I was terrified, I was disgusted,” she says.
“I asked for a break, he said no. He grabbed me by the hair, he pushed me face down, and bent me over the vanity, and told me to look at myself. While he put his penis in me again, he saw the tears in my eyes. He knew.”
Lauren says he demanded she orgasm before he would finish. She says she faked an orgasm believing it was the only way to end the ordeal.
In a statement to police, Lauren explained why she pretended to climax. “I believed that if I faked an orgasm, or multiple orgasms, then he would stop assaulting me because he kept telling me that this was all he wanted,” she said.
Lauren says he then told her to get off him, and she “went into a ball, in the fetal position, laying on my side”.
Lauren’s story is consistent with information she gave police at the time of the incident, and in statements months later.
In the application for a personal violence order against her attacker, the police counted nine times Lauren withdrew consent throughout the interaction:
- “I need this over, please.”
- “Please just do what you have to do for this to be over. I need this to be over.”
- “Right. That’s it. This ends now.”
- “No, I said this ends now.”
- Making a noise to signify “no”.
- “I need a break.”
- After the attacker said “you need to scream”, Lauren responded “no”.
- “I don’t have anything left. I just want this to be over.”
- “I’m too tired. I can’t do it anymore.”
After the assault
Within minutes of TedBear05 leaving her house, Lauren sent him a WhatsApp message saying his behaviour was “utterly disrespectful”.
“You … did not respect when I said ‘we are done here’ after you hit me incredibly hard,” she wrote in a message, sent at 2pm.
“You wanted to hurt me and continued to do so after I said no! You did that to me in my own home. I fought back tears following that, begged for it to be over and you just kept telling me I wanted more … This may have been transactional for me, but I never thought I’d experience that! Don’t ever contact me again!”
The message also mentioned Lauren having faked an orgasm.
Lauren then blocked TedBear05, and messaged a friend to tell her what had happened.
Eventually, her eldest child arrived from school.
“My son got home and then he asked if I had got his birthday invitations,” she says. “I had to get dressed and I had to do that. I went to Officeworks, printed off the invitations, and I came back and sat in the bathroom crying.”
Later, she went to see her neighbour, an off-duty police detective. While she initially explained the incident as if it had happened to a friend of hers, she later admitted she was the victim.
“She said to tell my ‘friend’ to go to the medical centre and things like that,” Lauren says. “I went home and my ex-partner was over by that stage, and he’d made dinner for us. I ate and I told him that I needed to go to the doctor’s.”
Her neighbour reported the incident to police that night, and detectives were at Lauren’s house by 9am the next day. A crime scene was established, and a number of forensic exhibits were seized. Lauren went to Liverpool Hospital later that day and took a rape kit.
Three weeks later, once police had obtained a warrant, Lauren drove with the detectives to a local sports field and called her attacker.
During the call, TedBear05 made admissions in relation to slapping Lauren during intercourse, at which point he agreed she withdrew consent. He did, however, say he believed after that point Lauren was again willing and consenting to re-engage in sex.
About 6am on December 20, 2022, police pulled over TedBear05, who was driving through Illawong. He was placed under arrest, cautioned in relation to the matter and conveyed to Bankstown Police Station.
TedBear05 was charged with five counts of sexual assault, two counts of common assault and one count of choking without consent.
‘Reject plea deal’
Lauren says she was discouraged by the ODPP from accepting a plea deal offered by the defence.
Initially, the prosecution offered TedBear05 one count of sexual assault, one of common assault and one of choking without consent, she says.
Lawyers for TedBear05 were unwilling to accept this and instead offered to plead guilty to one count of common assault and another to choking without consent.
A solicitor appointed for her by the ODPP, Jessica Dixon, told her “that’s not good enough” and pressed for at least one sexual assault charge. Lauren wanted a sexual assault charge, so complied.
The defence, however, knocked them back.
“The defence said ‘No. Common assault and choking without consent. Commit to trial if you’re not going to accept that’,” she says.
On December 7, 2023, the matter was committed to trial.
Audit begins
In mid-May Lauren was contacted by solicitor advocate Nicole Johnson, who told her the matter was going through a “standard review process”.
“She said it’s something that happens with every case,” Lauren says. “It’s just to make sure that everything’s fit for trial.”
But on Monday, June 3, Lauren says she was told by Dixon: “We’ve decided not to run your case.”
Dixon told Lauren the decision had been made by “the best legal minds in NSW” and told her there had been a “change in evidence”.
Lauren says she asked: “What change of evidence?”
Once the meeting concluded, Lauren spoke by phone with senior police constables Mark Musumeci and Mitchell Doubleday. They both then called the ODPP, then told Lauren there was no change in evidence. “They told me it was part of this review,” Lauren said. “I was like, ‘what review’.? One of them told me to Google it, and that’s when I saw it.”
Officers push back
Before the matter was pulled, Dixon wrote to Doubleday requesting his opinion on whether a conviction could be secured.
On May 17, he wrote back, arguing “if any matter needs to be given a run, it’s this”, and that “any jury, properly instructed, would have no issues convicting the defendant of these offences”.
“I know the DPP has been under fire lately for running matters with little chance of a conviction, but I think we might be overly focused on the fact that Lauren didn’t specifically say the word ‘stop’ or that her language may not have been clear enough to indicate an irrebuttable (sic) withdrawal of consent,” he wrote.
“I don’t want to tell you or the crown how to do your jobs, but here’s my thoughts now that I know your concerns and have had time to re-read the brief. I agree that, without an obvious ‘stop’ or ‘no’ the defendant may have a claim that he didn’t know she wasn’t consenting. But I think that if we look at the entirety of Lauren’s actions as a whole rather than focusing on just what she said, he’s clearly reckless as to her continued consent, if not having actual knowledge in some parts.”
Doubleday said Lauren’s statements could not “be mistaken as anything other than a withdrawal of consent, or at the absolute minimum, as a statement that would cause a reasonable person to turn their mind to the fact that consent may have been withdrawn”.
He pointed to physical harm caused to Lauren, when TedBear05 “slapped Lauren’s face, genitals and ribs while performing oral sex on her, immediately after Lauren told him ‘I don’t want any bruises’ and with it previously established that she wasn’t going to do anything that involved violence”.
“Again, this seems to me like the defendant would have knowledge, or was at least reckless as to Lauren’s ongoing consent, given that he was acting outside the constraints of their agreement,” he wrote.
Doubleday accepted parts of Lauren’s statement “could prove difficult”, especially where she admitted to climbing on top of the defendant and saying “I just want this to be over”.
“But after she climbs off the defendant, she says she curls into a ball on the bed,” he wrote. “To me, that’s a defensive position, not the position of someone who is eager and willing to continue.”
Musumeci wrote to Dixon on June 4, one day after the matter was pulled, arguing it was “unacceptable” it was discontinued so close to trial and saying it “makes no sense”.
“I understand that the decision not to proceed with the matter is not your decision, coming from the Chambers of the Director. I also understand that there is a large-scale review under way in relation to the certification of Sexual Assault matters,” he wrote. “I definitely know my limitations, and I am not writing to you to say I know better, but only to advocate for my victim, Lauren James, who I truly believe in this matter has been left behind by the system.”
Musumeci said Lauren’s matter is “well past that of a he-said, she-said consent argument, instead painting a picture of a violent sexual assault where the accused has used the agreed sexual encounter as a proviso for sexual and physical violence”.
He said the fact Lauren complained both to an off-duty NSW police detective inspector and her sister, a serving NSW police officer, directly after the incident “corroborated the victim’s version and timeline”. He also described Lauren as “nothing but compliant and helpful in every aspect of this investigation”.
“I believe that in this matter, it is my absolute duty to bring up these issues as I see them,” he wrote.
Sally Dowling SC
On the evening the matter was discontinued, Lauren filed a Victim’s Right to Review to have the decision considered by chief prosecutor Sally Dowling.
Dowling, failing to meet the 20-day reply period, came back to Lauren with a response on July 16 explaining why the matter had been discontinued. “On my assessment, the evidence is capable of establishing that you did not consent to this conduct,” she wrote. “However, to prove these charges beyond a reasonable doubt, the Crown must also establish that the accused knew that you were not consenting, that he was reckless to the fact that you were not consenting, or that he had no reasonable grounds to believe that you were not consenting.”
Dowling said her office was never supplied with a transcript of Lauren’s eight-minute conversation with her friend, in which she had admitted to faking an orgasm during the incident
“This has a material bearing on the capacity of the evidence to prove the mental state of the accused,” she wrote. “I note that a transcript of that recording was never provided by the NSW police to the ODPP, such that the significance of this information to the prospects of conviction was not fully appreciated until the matter was under review.”
NSW police reject this characterisation, a spokesperson telling The Weekend Australian officers “are required, and will, promptly comply with all requisitions from the ODPP; and the full brief of evidence was served on the ODPP and defence as required”.
“Police have made a formal request to the ODPP to review the decision not to proceed with this matter,” the spokesperson said.
Dowling told Lauren she would not reinstate the sexual assault or common assault charges, but would reconsider instituting proceedings for the choking without consent charge after Lauren offered her views.
Lauren believes Dowling is using the police as a “scapegoat” to prevent the matter running to trial.
She says she does not understand how the ODPP was unaware of the orgasm evidence, considering it was documented in a text message to the defendant directly after the incident, and her updated police statement on March 18. “She’s saying it’s a change in evidence; however, the evidence that she’s saying is the change has been referenced in several other aspects of the investigation,” Lauren says.
An ODPP spokesperson says the office “takes sexual assault cases extremely seriously”.
“We acknowledge the impact and trauma associated with these matters, including when a decision is made to discontinue proceedings, as was the case here,” the spokesperson said.
“The assessment of the decision to prosecute, as set out in Chapter 1 of the Prosecution Guidelines, is an ongoing one, and is revisited throughout the course of a prosecution, including when new information comes to light or takes on additional significance.
“The decision to discontinue the sexual assault charges in this matter was reviewed afresh as part of the ODPP’s Victim’s Right of Review policy, and found to be the correct decision in accordance with the Prosecution Guidelines.”
‘Life on hold’
Lauren has spent the past 18 months holding on to a hope that she would one day see TedBear05 brought to justice. She says all throughout the process, she was told “the evidence really doesn’t get any better than this”.
“I wasn’t able to put my trauma and pack it away,” she says. “I had to live it. I had to have regular meetings. I had to put my life on hold. If this had been pulled from the beginning, I wouldn’t have had to relive the trauma over and over and over again in preparation for trial.”
Lauren says she can no longer trust that the criminal justice system will protect complainants.
“The law isn’t worth the paper it’s written on,” she says. “I fear sex offenders now have a licence to perpetrate because they will not be prosecuted.”
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