R v Abdulla - [2006] SADC 110

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ABDULLA
Criminal Trial by Judge Alone
[2006] SADC 110
Decision of Her Honour Judge Shaw
19 September 2006
CRIMINAL LAW
Mental incompetence - determination of objective elements
Criminal Law Consolidation Act 1935, referred to.

R v ABDULLA
[2006] SADC 110

The accused is charged with unlawful sexual intercourse with a person under 12 years. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of the offence are that between the 28^th day of November 2000 and the 15^th day of April 2002, at Gerard near Winkie, Scott Brett Abdulla had anal sexual intercourse with BRW, a person under the age of 12 years.
Counsel for the accused, elected for trial by judge alone on behalf of the accused. It was agreed that the accused was unfit to plead.
I therefore proceeded to determine the charge against the accused as a judge sitting alone.
Pursuant to section 269NA of the Criminal Law Consolidation Act, 1935, I have decided to determine firstly whether the prosecution have proved the objective elements of the offence beyond reasonable doubt.
The prosecution case is that shortly before Christmas 2001, in the old kindergarten building at the Gerard Reserve near Berri, the accused, who was aged eighteen years, had anal sexual intercourse with the complainant who was aged ten years. It was the first of four alleged sexual acts committed by the accused against the complainant.
Complainant’s Evidence
The complainant was aged fourteen years at the time of giving evidence.
As at the time of the alleged offence he lived with his mother and one of his nans, called Ruby. He met the accused while playing chasey in the street. The accused was unable to communicate except by use of his hands or sign.
The complainant described the first occasion that there was “dirty business” between himself and the accused. He was playing in the kitchen of the kindy building. The accused gave him a hand signal to bend over, the accused pulled the complainant’s pants down and had forced anal sexual intercourse with him.
The accused left his penis in the complainant’s bottom for about an hour.
The complainant said he was too scared to tell anyone at that time. The accused threatened him with hand signals. He described a second time, two hours later, when the accused again had forced anal intercourse with him again. This occurred two days before Christmas.
On Boxing Day, the accused again had forced anal sexual intercourse with the complainant.
He described the next occasion as occurring when the accused grabbed him by the arms and took him to the old church building. There the accused forced him to suck the accused's penis.
There were only four times when “dirty business” occurred.
The complainant was cross examined about these various incidents. There were significant inconsistencies in his account. He was endeavouring to recall events which occurred four years ago. Clearly, his recollection was confused.
He was asked about various statements he had made where his account differed from his account in the witness box.
Agreed Facts
There were a number of agreed facts relating to uncontentious matters, the time frame when the complainant was at Gerard and prior statements made by the complainant.
Prosecution Submissions
The prosecution submitted that even though there were a number of inconsistencies in the complainant’s evidence, I could be satisfied beyond reasonable doubt that the elements of the offence were proved.
The offence allegedly took place in the school holidays, at a time when the complainant was 10 years of age.
The prosecution submitted that in considering the credibility and reliability of the complainant, the court should take into account that he is a young boy who found it difficult to talk about these matters. He was honest and consistent about the sexual acts.
He has not had a charmed existence.
It was conceded that there were a number of different versions as to where the incidents took place. However, it was submitted that the complainant has never deviated from his claim that sexual contact happened on four occasions.
It is accepted that in his first interview the complainant said that it happened dozens of times but it was unclear whether he understood at the time, what that meant.
The prosecution submitted that although there were a number of matters of which the complainant had no memory, this was not surprising bearing in mind that the complainant was ten years of age at the time and it was four years ago.
The prosecution conceded that the complainant told lies in evidence, for example, about his mother’s drinking and about his movements in the last week before this hearing. However, the prosecution submitted that these untruths did not relate to the sexual acts.
The prosecution submitted that despite the inconsistencies, the complainant was consistent about the sexual acts alleged, and that the court could be satisfied beyond reasonable doubt that the charge was proved.
Ms Davey, who appeared for the accused, submitted that based on the inconsistencies in relation to the complainant’s evidence and the circumstances of the alleged offence, there is a need to scrutinise the evidence of the complainant carefully.
It was pointed out that in relation to proof of the offence alleged, there was no supporting evidence from others who were described by the complainant as being nearby, and there is no supporting medical evidence.
The time frames described by the complainant are clearly incorrect.
On the complainant’s account, the sexual act alleged, involved full anal penetration of a child of ten years. There is no medical evidence. Its absence is a relevant factor.
In relation to the complainant’s credit, the defence did not submit that the complainant was untruthful.
It was submitted that although this is a matter where the court could be satisfied that the complainant is probably telling the truth, the question is whether the court could be satisfied beyond reasonable doubt that the complainant was reliable.
In his interview of 13 April 2002, the complainant described the first incident of sexual contact, as having taken place in the toilets.
During that interview, the complainant said sexual contact happened dozens of times and sometimes twice a day.
He described going to the toilet and locking the door.
He also described sucking the accused’s penis a few times.
This account was inconsistent with his evidence in court in a number of respects. In his statement, three years later, he described four occasions without any reference to an incident in the toilet.
Within his own evidence, there were inconsistencies.
The complainant is inconsistent in his evidence with what his mother states she was told about the location of the alleged sexual offending. He told his mother it happened in the shed, and that he was given lollies. In evidence, he denied having said this to his mother or that that happened.
The complainant’s evidence about the level of his mother’s alcohol consumption, was inconsistent with the evidence of another witness. The complainant was shown to have been dishonest about what happened over the few days prior to the hearing. It was conceded that he told untruths about his whereabouts and his knowledge of these proceedings.
The defence relied upon all of these matters in combination to submit that the court must be left with a reasonable doubt about the complainant’s reliability in relation to proof of the offence charged.
Findings
In my opinion, the complainant presented as if he was endeavouring to tell the truth. He was clearly distressed at times at having to recall and recount events which occurred when he was only 10 years of age.
For these reasons, I formed the view that the complainant might well be telling the truth. However, the prosecution is required to prove beyond reasonable doubt that the accused committed the specific offence alleged on the information. As Ms Davey outlined, and the prosecution conceded in several respects, there were significant inconsistencies in the complainant’s evidence, admitted untruths and examples of imperfect memory. Having regard to all of the evidence, I was left with a reasonable doubt as to the proof of the charge.
Therefore, I am of the view that the objective elements of the offence have not been proved beyond reasonable doubt.
In those circumstances, it is unnecessary for me to consider any other matters relating to the accused's fitness to plead or mental impairment.
Accordingly, I find the accused not guilty of the charge.