It was supposed to be a regular teen birthday party.
Instead, it led to a police investigation, two trials and an experience one expert says should “shock our moral consciousness”.
Nadia Bach didn’t go to many high school parties.
“I was really a homebody. I just spent the majority of my time in my room writing and listening to music and watching movies,” she says.
But in September of 2017 she accepted an invitation to an 18th birthday bash for one of her high school classmates.
The party was at a rural property at Tallangatta, a small hamlet in the north of Victoria.
Nadia was 17, most of the way through year 12 and planning to go to uni the next year.
The party was a typical teenager bash.
It was set in an old hay shed, there were fire pits and music was playing.
Most of the teens at the party were drinking, but there were also adults handing out food and checking on the kids.
It was a cold night, so Nadia arrived wearing jeans, a long-sleeved top, a jumper and a jacket.
At the time, Nadia had no way of knowing how her choice of clothes would be scrutinised when the events of that night became the subject of a criminal trial.
She couldn’t know that she would later be grilled about the bra she was wearing and the “sheer” material her top was made of.
Because when Nadia arrived at the party, she was just a teenager who wanted to have some fun.
When she got there, she drank some Vodka Cruisers and chatted with friends.
At some point, she and a female friend shared a brief kiss.
Nadia didn’t place much importance in that moment either.
She says it was “the kind of kiss you would give your mother”.
But in court, lawyers would raise that kiss again and again.
They would describe it as “making out” and “breaking boundaries”, and it would come to take on a meaning and significance that Nadia had never placed in it.
Those questions still frustrate her, because that kiss was not part of the allegations that led to the trial.
The events of that party would eventually make it to the courts because later that night Nadia met two men she knew of but hadn’t been introduced to before.
They were a couple of years older than most of the kids at the party.
They hadn’t been invited, but had turned up anyway and were allowed to stay.
“I was getting to know them for the first time that night, just having fun getting to know each other and I was showing them the art I was working on in school,” Nadia says.
She liked one of the men, they flirted a bit and shared a kiss. It was consensual.
But later, Nadia says the two men beckoned her over to an area behind the large shed the party was set around.
“They said, ‘Come here’. And it was either, ‘We want to show you something’ or ‘look at this’, something along those lines,” she says.
Nadia followed the pair, thinking nothing of the request.
Allegations and denials
There are two very different accounts of what happened next.
Nadia would later tell police and then a court, that the two men orally, anally and vaginally raped her in the dirt behind that shed as the music played and the other kids partied on in ignorance.
“I was a little in shock because it happened so quicky,” Nadia told a court.
“As soon as I realised what was going on, I said, ‘I don’t want to do this anymore’.”
She gave evidence that she said no repeatedly.
The two accused men denied the allegations.
One of the men told police that many of the sexual acts he was accused of could not have occurred because he could not maintain an erection on the night.
Both men also told police the sex was consensual.
Sexual assault support services:
The Age newspaper reported defence lawyer Hayden Rattray, who represented one of the men, as describing the case like this:
“This case is about young people, a party, it’s about alcohol, it’s about bad decisions, it’s about consent, it’s about concern about rumours and reputation, and it’s about regret.”
These conflicting accounts would become the subject of two criminal trials and an appeal hearing.
The first trial was held in Wodonga and ended in a mistrial.
At the second trial in Melbourne, one of the defendants was found not guilty of four charges of rape and the jury could not reach a verdict on a fifth charge.
Prosecutors later dropped that charge.
The second man was convicted of one count of anal rape, was found not guilty of another charge of rape and the jury could not reach a verdict on a third charge of rape.
That man was sentenced to a four-year prison term.
But his conviction was overturned by the Court of Appeal a year later.
“The delivery of a single guilty verdict, in a case where eight charges are laid based on events occurring in a single continuous incident, is an unusual and surprising result,” the three appeal judges wrote.
While Nadia was disappointed with the outcome of that long legal process, this story is not about that verdict.
What the transcripts show
Nadia has chosen to identify herself and speak to the media for the first time, because she wants others to know what she experienced when she took her allegations through the justice system.
“I want them to hear how hard it was for me,” she says.
“I went through hell.”
And she is not the only person who believes her case needs to be publicly scrutinised.
The County Court has granted the ABC access to the trial transcripts — it is the first time these documents have been publicly released.
Legal experts, criminologists and mental health workers have all raised concerns about what these transcripts show.
One criminologist says the questions that two defence barristers asked Nadia during the first trial should “shock our moral consciousness”.
While another legal expert believes a comment made by Judge Richard Smith during that first trial, where he described Nadia as “breaking her duck” during the alleged rapes in reference to her virginity, needs to be investigated.
And one of the country’s leading trauma psychiatrists is using this case to sound the alarm about the level of psychological distress that she says sexual assault complainants are experiencing within our justice systems.
A level of trauma so high, that she says she is aware of women taking their own lives while trying to pursue sexual assault claims through the courts.
Nadia has held onto her story of going through the justice system for the past two years, but says she finally wants to be heard.
A small town takes sides
Nadia reported the alleged rapes to police within hours of leaving that Tallangatta party in late 2017.
ABC News: Peter Drought
The small town was still sleeping when a friend’s mum picked Nadia up.
She drove her to the Wodonga Police Station about half an hour away and had an officer call her parents.
“I felt ashamed and I was scared of what it would do to my mum when she found out,” Nadia says.
She remembers crying at the police station until her parents arrived.
“When I saw my mum, she was a wreck, and that is when I stopped crying because I knew I had to be strong for her as well as myself.”
Police needed a forensic exam to be performed on Nadia, but it was difficult to organise.
There hadn’t been a doctor available in Wodonga to perform these exams for years and the closest available medical officer wasn’t free that night.
It meant police had to organise a seven-hour round trip to take Nadia to the Royal Children’s Hospital in Melbourne.
While necessary, that examination was also highly invasive.
“I just felt like I had no privacy anymore,” Nadia says.
“What had happened to me happened, and now I have more people taking swabs and strands of hair and photos of all the cuts and bruises and marks on my body, I just felt naked to the world.”
She was at the hospital for most of a day.
Nadia would later tell the court that by the time she gave her statement to police, she had been awake for about 40 hours — and that was before her long drive back to Wodonga.
“I just thought that would be the worst of it at the time, but looking back on it, it was definitely foreshadowing how hard it was going to be,” she says.
Even though Nadia’s identity was legally protected, news of the alleged rapes spread quickly in her home town.
ABC News: Peter Drought
Tallangatta is the kind of place where everyone knows everyone.
Nadia says by the time she made it back to school, days after the alleged rapes, she didn’t have any privacy left.
“I knew people were talking about me because I had everybody staring at me when I would walk past but nobody was talking to me,” she says.
The allegations split the community, but Nadia felt more people were supporting the accused men, who she says were more popular than her.
Many people judged the events of that night, well before the case ever made it to court.
ABC News: Peter Drought
“There was constantly people talking behind my back, I would just hear people saying that I made it up,” Nadia says.
Then there was school itself.
Nadia was in the same maths class as the younger brother of one of the accused men.
She was so distressed by the situation she had to drop out of that class even though it was getting close to her year 12 exams.
Her studies went downhill from there.
Many of the kids who had been at the party were also students at Nadia’s school.
Some were interviewed by police, and some were to be called as witnesses in the trial.
While other students knew the accused men and their families.
Things became so difficult at school for Nadia that she stopped hanging out with other kids and started spending her lunch and recess breaks with a teacher.
ABC News: Peter Drought
ABC News: Peter Drought
Outside of school, she was also dealing with the emotional impact of that night.
“I have always been a kind of emotional person, a cuddly warm person, but in the months that followed what happened I couldn’t even hug my mum without flinching,” she says.
She felt isolated and without community support.
Nadia’s mental health became a huge concern. She started suffering panic attacks and experienced suicidal thoughts.
Things became so difficult that people close to Nadia suggested it might be best to just drop out of the court case.
But she says even though she was “terrified” at the idea of going to court, she felt she had a responsibility to see the case through.
Nadia takes the stand
Once the first trial began in Wodonga’s County Court in 2019 it began making headlines in the local media.
Nadia was never identified — a legal restriction designed to protect the privacy of sexual assault complainants — but it didn’t make much of a difference for Nadia.
She says she didn’t have any privacy left to protect in Tallangatta.
“It seemed like everyone else around me was allowed to talk about it, but it was my story and I wasn’t allowed to say anything,” she says.
There was a short list of people in the courtroom when the day finally came for her to give evidence. It was:
The court was closed to the public while Nadia gave evidence.
And while the trial was also expected to hear evidence from police, the doctor who examined Nadia, and some of the people who had been at the party, Nadia’s testimony would be the most crucial evidence.
It was so important Mr Rattray said this about it at a later hearing:
“There’s no evidence upon which a jury could convict these men of rape other than what the complainant says.”
The prosecution began presenting Nadia’s evidence to the jury by playing a video recording of her statement to police.
She had to sit in court and watch that recording for the first time.
“There was a certain part that got to me, when the officer went out of the room and they just showed me sitting there by myself crying,” Nadia says.
It took her right back to that night.
“Every single emotion I had on that day came back,” she says.
“I was sitting there and just sobbing because I felt everything I felt on that day.”
In sexual offence trials, complainants often report the cross-examination as the most stressful part of the trial, but it is also one of the most crucial parts for the defence.
It is where the defence lawyer can question the witness and test their evidence.
But there are rules.
In Victoria, there is a section of the Evidence Act that lists the types of questions deemed to be improper to ask a witness and which aren’t allowed.
These include questions that harass or intimidate a witness, as well as questions that are misleading, confusing or “have no basis other than a stereotype”.
Victoria also has what are known as Rape Shield Laws, which are designed to protect sexual assault complainants from being questioned about their sexual history or reputation.
Nadia was questioned in a remote witness box during that Wodonga trial, rather than in the courtroom itself.
It’s a measure designed to reduce the trauma and stress of giving evidence for sexual assault complainants, as it means they do not need to be in the same room as the accused person.
Because there were two accused men in this case, Nadia had to be questioned by both of their barristers.
ABC News: Ben Nelson
ABC News: Ben Nelson
‘What were you wearing?’
The cross-examination went for two days and was wide-ranging.
Nadia had alleged that she had been raped four times in a location close to that shed before one of the men pulled her further away, where the alleged attack continued.
She was questioned by the barristers about how and why she was invited to the party, about how many friends she had there, and whether she was trying to make a good impression on some of the other teenagers.
She was asked about whether she had flirted with the men before the alleged attacks and about that consensual kiss she shared with one of them.
She was questioned about who she spoke with that night. She was asked about the order of the alleged rapes, about when she allegedly told the men she did not want to have sex, and about the state of one of the men’s erection.
Nadia was questioned about why she didn’t call for help during the alleged rapes. She was asked about the differences between her account of the night and the account of the accused men.
She was questioned about perceived inconsistencies between her police statement and her courtroom evidence.
And she was asked if she made the rape allegations up out of embarrassment.
But it was questioning from both barristers about Nadia’s appearance that would be scrutinised when the case went to a second trial.
Defence barrister Hayden Rattray began his cross-examination by establishing that Nadia had been at the party and how she had been invited, before asking these questions.
Hayden Rattray: And what were you wearing?
Nadia Bach: I was wearing boots, jeans, a belt, a leather jacket, a jumper underneath, and a top underneath that.
Hayden Rattray: Was the top underneath that a — can you describe the top that was underneath the…?
Nadia Bach: It was long-sleeved, and high neckline, black.
Hayden Rattray: And what sort of material was it made out of?
Nadia Bach: Sheer material.
The other defence barrister, Charles Morgan, went further in his cross-examination.
Charles Morgan: You took that jumper off at an early stage of the evening, is that right?
Nadia Bach: Yes, and I was still wearing my jacket.
Charles Morgan: So your jacket and a sheer shirt that I think people have described as being see-through, so you had like some kind of under — a bra or something under that?
Nadia Bach: I have something over my bra, but under my shirt, yes.
Charles Morgan: So when yesterday you just said you were wearing a jumper, was that to downplay the actual state of your dress that night?
The prosecutor, Peter Triandos, did not object to any of the questions about Nadia’s clothing and Judge Richard Smith did not intervene.
But they were questions that upset Nadia.
“I just felt like screaming to them, ‘What has this got to do with anything?'” she says.
Nadia was also questioned by both defence barristers about that kiss she shared with a female friend earlier in the night at the party.
These questions were allowed during that first trial in Wodonga but would also be scrutinised when the case went to a second trial.
Mr Rattray asked Nadia about the kiss during his cross-examination.
“Would that be an example of behaviour that you probably wouldn’t have engaged in if you hadn’t been drinking? he asked.
Nadia described the kiss as a closed-mouth kiss on the lips and not sexual.
But she would also be asked about it by Mr Morgan.
Charles Morgan: Now [—-] has accepted previous evidence that the kiss was described as “making out”. Would you disagree with her?
Nadia Bach: Yeah. It was closed mouth.
Charles Morgan: And why is a closed mouth kiss to a friend of yours “breaking boundaries”, as you’ve accepted in the evidence yesterday?
Nadia Bach: Um…
Judge Smith: Breaking boundaries?
Charles Morgan: Well, I’m paraphrasing. You said you accepted yesterday that.
Judge Smith: I don’t recall that word – those words being used.
Charles Morgan: Well, no, it’s my word, your honour. I’m paraphrasing.
Both lawyers questioned Nadia about that kiss and whether it was an example of her drinking alcohol and acting in a way she wouldn’t normally.
Mr Rattray would again seek to link that kiss to Nadia’s alcohol consumption at another point in his cross-examination, where he also asked whether she had intended to sleep with the accused men that night.
Hayden Rattray: Do you recall a conversation with [—-] and [—-] … where [—-] asks you whether or not you were going to get a root tonight?
Nadia Bach: No.
Hayden Rattray: Can you say absolutely that that did not happen?
Nadia Bach: I can say absolutely that did not happen.
Hayden Rattray: And I take it, then, you’d say absolutely that you did not say to her, “I don’t know yet, we’ll see. I’ll take what I can get”?
Nadia Bach: I can absolutely say that I would not say that, because at the time, I was a virgin.
Hayden Rattray: You’d been drinking?
Nadia Bach: Yes.
Hayden Rattray: You’d been behaving in a way that you wouldn’t have been behaving had you not been drinking, correct?
Nadia Bach: I had been drinking before.
Hayden Rattray: You’d been kissing a friend of yours on the lips?
Nadia Bach: Closed mouth.
Hayden Rattray: And you’re adamant that you did not say to [—-], “I don’t know yet, we’ll see. I’ll take what I can get”, is that your evidence?
Nadia Bach: Yes.
Hayden Rattray: No room for uncertainty around that? You’re absolutely sure?
Nadia Bach: Absolutely sure.
Nadia says she was shocked by the questions about that kiss with her friend.
She says it didn’t have anything to do with the alleged rapes and she couldn’t understand why she was being asked about it.
For Nadia, the cross-examination was deeply upsetting. She felt like she was the person on trial.
She says many of the questions that were put to her were not about the alleged rapes but were about who she was as a person.
“I felt even though I was a virgin, I was being slut shamed, just victim blamed. It just wasn’t fair on me,” she said.
Nadia says she understands the defence barristers had a job to do.
But she believes she could have been questioned in a way that didn’t make her feel so ashamed.
“They made me feel tiny compared to them, like I was nothing,” she says.
There is another part of that first trial that also upsets Nadia.
It was a comment made by Judge Smith during a conversation about Nadia’s virginity. He said:
“It strikes me as being relevant to an issue as to whether a 17-year-old girl who’s had no experience of intercourse at all before would choose to break her duck, so to speak, with two men, vaginal, anal and oral on the ground, in the dark.”
The phrase to “break her duck” is taken from cricket where it is usually used to describe a batsman making their first run.
ABC News: Ben Nelson
It’s not the first time Judge Smith has made a controversial comment during a rape trial.
In 2018, Nine News reported Judge Smith as saying this about a rape victim who had partially undressed in front of a man who was staying at her house, so she could go to sleep:
“Look, when I was a younger man, I might’ve referred to it as teasing.”
Judge Smith did tell the court that ultimately the offender was responsible for understanding sexual consent.
Julia Quilter from the University of Wollongong is one of the country’s leading academic authorities on sexual assault law reform and trial practise.
She says these are concerning comments from a judge.
“I think these are just completely inappropriate comments to be making at any time, but certainly not in this day and age,” she says.
“It is really not the role of a judge to be providing an opinion about those sorts of issues.”
She says where comments like these are known, they should be the subject of a formal complaint and investigation.
Nadia believes the comment Judge Smith made about her was “unprofessional and out of line”.
‘Inadmissible or irrelevant’
At the start of March in 2019, the trial in Wodonga was suddenly declared a mistrial before all of the evidence had been heard.
The Border Mail newspaper reported Judge Smith saying this to the jury:
“For legal reasons, I shall dismiss you as a jury and order a retrial to be heard with a fresh jury,” he said.
“It is neither necessary nor appropriate to advise you of those reasons.”
A transcript released to the ABC of a later hearing before Judge Meryl Sexton appears to show that it was a question asked by Judge Smith that led to that first trial being discontinued.
That mistrial had consequences for both Nadia and the accused men.
It meant they had to wait another five months for a second trial to be run.
“I was just disappointed and scared that I would have to go through it all again, a second time,” Nadia says.
“I kind of felt at that point it was never going to end, I would always be fighting this.”
The case was moved to Melbourne to be heard before Judge Sexton.
It was agreed that a video recording of Nadia’s evidence from the first trial would be played to the jury, so Nadia would not need to give her evidence for a second time.
But when Judge Sexton reviewed the transcript from the first trial, she became concerned about the evidence that had been presented to the jury.
ABC News: Ben Nelson
She told the defence barristers, Mr Morgan and Mr Rattray, during a pre-trial hearing:
“I consider that a great deal of it was inadmissible or irrelevant.”
She was most concerned about the questions that were put to Nadia about her appearance and clothing on the night, as well as the questions about the kiss with a female friend.
“There seems to be a great deal of emphasis throughout the trial of the fact that she was wearing a see-through top, and that seemed to me to be an improper line of questioning,” Judge Sexton said.
Judge Sexton went on to say it appeared “improper as a stereotype, that if a woman seeks to wear something that is sheer, that therefore she is more likely to be consenting to sexual activity.”
Mr Rattray argued that his questions only needed “bare relevance” to be included in the second trial.
Hayden Rattray: I’m not saying for a moment that because she was wearing a see-through top she consented. I am not saying that for a moment.
Judge Sexton: Well that’s the flavour that comes through when you read the transcript.
Mr Rattray argued in court that his questions about Nadia’s appearance were relevant to the trial because they showed his client could remember what Nadia had worn on that night.
Judge Sexton response to that argument was short.
“And my question then is, so what?” she replied.
Mr Rattray and Judge Sexton went back and forth about the issue for some time.
Hayden Rattray: But there’s nothing in any of these questions I’ve asked that’s improper, they’re not even leading.
Judge Sexton: “That has no basis other than a stereotype.”
The conversation led Judge Sexton to finally say this:
“I can’t believe that in the year 2019 I am having discussion with counsel about the relevance of what the complainant is wearing in a sexual offences trial.”
Judge Sexton also heard arguments from the barristers about the questions that were made about Nadia and a female friend kissing.
She outlined her concern that these questions were inadmissible because they related to prior sexual activity.
Mr Rattray argued that the kiss between Nadia and her friend should not be considered sexual activity.
Judge Sexton: So kissing is not a sexual activity?
Hayden Rattray: No, absolutely not. Particularly not when you take…
Judge Sexton: I’m definitely living in another universe.
Mr Morgan would argue that the evidence should be included because it showed Nadia trying to “minimise the effect of evidence” by saying the kiss was closed mouthed.
But Judge Sexton was not swayed. She ruled that the questions about that kiss could not be included in the second trial.
All up more than 130 lines of transcript that was put to the jury in the first trial were removed as evidence in the second trial.
It meant evidence about Nadia’s appearance and that kiss with a friend was not seen by the jury in that second trial and could not have affected the verdict in that trial.
ABC News: Peter Drought
But for Nadia, it didn’t change the experience she had in court.
For her the question remains: Why were these questions asked, and allowed to remain, during the first trial?
Mr Morgan and Mr Triandos did not respond to detailed questions asked by the ABC.
Mr Rattray said in a statement that he asked Nadia about her clothing “because the answers were relevant to my client’s recorded interview with police”.
“In that interview, police asked my client to describe what Ms Bach was wearing,” he said.
He said the prosecution was arguing that the jury should not accept his client’s interview as reliable and credible.
Mr Rattray said he asked Nadia the question about the kiss she shared with a friend to show she had a separate conversation with other friends at the party where she discussed whether she was going to have sex with one of the accused men later that night.
Mr Rattray says he also asked about that kiss with a friend to show “Ms Bach lied to the jury when she denied having this conversation in her evidence”.
He said that conversation was directly relevant to whether Ms Bach consented to the sex with his client.
“Ms Bach’s denial was demonstratively false,” he says.
“There was evidence from other witnesses at the party that she had that conversation and her behaviour, in part kissing a friend at the party, supported the argument that she had the conversation.”
In court, Nadia denied having that conversation.
Judge Smith did not respond to the ABC. Judges rarely speak publicly about cases after they have concluded.
‘I am terrified to do this’
Dr Quilter has spent years studying rape trial transcripts and says the questioning Nadia experienced was not unique to that case.
What she does say is that Nadia’s case demonstrates problems with how some sexual assault complainants are still being questioned, despite 40 years of law reform.
“We have so much evidence now of the problems,” Dr Quilter says.
“We have very progressive legislation largely in place but still we have the practice of the law going against all of the evidence of the irrelevancy of these issues.”
Dr Quilter is not alone in her concerns, and others go further in their critique.
Rachael Burgin is a law lecturer at Swinburne University and is the Executive Director of the Rape and Sexual Assault Research and Advocacy group.
She says we should be shocked that sexual assault complainants are still being asked about their appearance in rape trials.
“It should shock our moral consciousness and we should be advocating to reform law to even the playing field,” she says.
Dr Burgin wants to see greater training and education about sexual offences provided to those who work within the courts.
Law Institute of Victoria president Tania Wolff says sexual assault trials are incredibly stressful on everyone involved, and that defence lawyers have extensive legal training and training in courtroom advocacy.
She says in terms of “sensitivity training”, the trial process “is an adversarial system, that is our current system and there is a lot at stake, the liberty of an individual is at stake.”
“And this from a defence perspective is the liberty of an individual who has come to you and said, ‘I didn’t do it’,” she says.
Ms Wolff says defence lawyers must do the best job they can to represent their client and we are all entitled to the presumption of innocence.
Still, questions linger about how best to do this.
Karen Williams is a NSW psychiatrist who has spent the past decade treating sexual assault victims, and argues our justice system is not run in a way that is trauma informed.
ABC News: Justin Huntsdale
“I don’t think it is quite as well understood that when a person is traumatised that they have this survival technique where you play out in your mind what you should have done differently,” she says, adding that this often leads to feelings of shame and guilt.
Those feelings can be made worse, Dr Williams says, if police or lawyers ask a woman to justify her decisions or behaviour before or after an alleged assault, or blame the person for what occurred.
“That traumatises her again and again and again,” she says.
Dr Williams is aware of women who have become so distressed while going through the courts as a sexual assault complainant, they have taken their own lives.
She wants to see mental health professionals working with police and lawyers to create a more trauma informed approach to sexual assault cases and trials.
In Victoria, the Law Reform Commission is undergoing a major review of how the justice system responds to sexual offences, with a report due in August. It’s an issue justice systems across the country are grappling with.
Nadia desperately wants to see change — it’s why she has decided to speak up.
“I am terrified to do this, but I just feel a responsibility,” she says.
“Even if I just help one person, make it easier than what I had to go through, then I would do this a million times,” she says.
But for Nadia, any change will be too late.
She still has nightmares about her time on the witness stand.
And she still doesn’t feel welcome when she heads home to Tallangatta.
It’s a lasting scar from a night out that was meant to be fun.
Producers: Ben Knight and Joanna McCarthy
Digital editor & production: Patrick Wood
Photography: Peter Drought
Video: Peter Drought and Michael Barnett