R v A W L No. DCCRM-03-544

R v A W L
[2003] SADC 129
Judge Lowrie
Criminal

Mr L, on information, was charged with seven offences. The first five relate to conduct between himself and his daughter in regard to a variety of sexual acts. He has pleaded guilty to each of those allegations. On the seventh count, a charge of gross indecency, he has pleaded not guilty to those allegations.
It was alleged that at Mount Gambier or Carpenters Rocks you committed an act of gross indecency in the presence of S McC, a child under the age of 16 years, an occasion depicted in the photograph at page 5 of the photograph album entitled ‘Friends’. Certain essential factual matters for the purpose of this count have been agreed. It was agreed that the young lady was under the age of 16, and, a friend of the accused’s daughter who was referred to in the other counts. It is agreed that she is the young person depicted in the photograph album. It is further agreed that at that time she was asleep, and, in the vicinity of her face is an erect penis. It has been conceded that that penis is that of the accused. I have no doubt in finding from the photograph that the penis was in very close proximity to the infant’s head.
The accused was interviewed about this particular photograph, and, on his second interview, he made concessions at page 11 of that interview, that it was his penis with the young girl. He said,
“Ayes, that, was me, but I was going from my bed across, because they were sleeping on the floor and I was in the nude.
Q104are you able to tell me why those photographs were taken in that sense
AI thought it would be funny at the time, so I know its wrong. But I never ever touched her.
Q105are you sure about that
Ayes
Q106you’ve never interfered with
Anever interfered with S.....”
The Crown has put to me this section is specifically related to an act of gross indecency in the presence of S and the elements of the charge have been established.
The charge has been made out by the fact that it was the accused who placed his penis at or near this child, and simply, even if she was asleep at the time, that clearly amounts to an act of gross indecency in the presence of the child. The child does not have to be aware that the act is taking place but by reason of the established facts peculiar to this case the charge is established, and, by reason of the proximity to the sleeping child’s face of the accused’s penis.
Both counsel have mentioned that there are no authorities in point. Both have referred to an early decision of R v Johnson (1968) SASR 132, where the charge was indecent assault, particularly, the caning of young men when the young men did not appreciate that the act was ‘indecent’.
As the former Chief Justice has commented upon at the foot of page 134 clearly argument putting that case about a victim who was asleep in regard to such an act. He then particularly said:
“.... I cannot think that a person who indulges in sexual self-gratification near an infant or a sleeping person, at the same time touching the infant or the sleeper on the shoulder, commits an indecent assault, or a man who derives sexual stimulus unknown to a girl while touching her in a manner not in itself indecent. I repeat that any sexual display to the victims, coupled with a physical assault, would probably be enough to constitute the offence. After all, in common sense, the absence of any sexual affront to the victim or of any danger of corruption must be important factors.”
Those comments related to a charge of indecent assault.
This is not a charge of indecent assault. It is a charge of gross indecency in the presence of a child. I would certainly make that distinction and accept what the Crown has put to me.
Ms Williams commented on the learned comments of the former Chief Justice about the nature of such an act when a person clearly is not aware of the act taking place, and that in itself cannot amount to offensive conduct. She mentioned that the only persons to have seen this photograph are certain limited people in the court process, and relied upon an assertion of the need for some understanding of the act taking place. Thus if the victim has no knowledge of the act it cannot be said to be ‘in the presence of’.
Miss Williams has referred me to R v Gillard (1999) 105 ACrimR 479, which is authority in regard to indecent conduct where a child has been forced to observe an act of intercourse and there is, as she has pointed out, a clear observance of the act in the mind of a child and deemed an indecent act.
No doubt as she opened it is a matter to be decided by the average citizen whether conduct is ‘indecent’. Clearly, in Gillard’s case forcing an infant, albeit no perception of the act, to observe an act of intercourse is indecent. It would follow in my reasoning if I were dealing with an ‘indecency’ question, the act of placing an erect penis in the vicinity or on the face of an infant is an indecent act.
She mentioned the English case, masturbation in the presence of children, as amounting to an indecent act, but, again, pointed out there the children were conscious of the act taking place.
I believe this legislation has been framed relating to any act, which one can regard as grossly indecent occurring in the presence of a child or children, and, in my view that does not have to be a conscious observance or understanding of that act by a child. ‘Presence’ is the important word. What constitutes presence will no doubt vary from case to case. The photographs show the close proximity of the erect penis to the face of the infant. Particularly the second photograph. I view that act as grossly indecent in the presence of the infant.
In my view I believe the Crown has made out its case to my satisfaction beyond reasonable doubt that notwithstanding the fact that this child was asleep, the placing of an erect penis in or about or on the face of a child clearly is an act of gross indecency, and I so find.
Consequentially, I would convict the accused on that count on that factual basis.

[2003] SADC 129

7 August 2003