R v Abrahamson - [2004] SADC 172

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ABRAHAMSON
Criminal Trial by Judge Alone
Reasons for the Verdict of His Honour Judge David
2 December 2004
CRIMINAL LAW
R v ABRAHAMSON
[2004] SADC 172

The accused was charged upon an Information which alleged:-
“FRANCIS MATTHEW ABRAHAMSON
is charged with the following Offences
First Count
Statement of Offence
Aggravated Serious Criminal Trespass in a Place of Residence. (Section 170(2) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Francis Matthew Abrahamson on the 24^th day of February 2004 at Port Augusta, entered or remained in place of residence of Ian Backshall as a trespasser, with the intention of committing an offence therein, namely theft, when Ian Backshall was lawfully present in his place of residence and knowing of his presence or being reckless as to whether he was there.
Second Count
Statement of Offence
Theft. (Section 134 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Francis Matthew Abrahamson on the 24^th day of February 2004 at Port Augusta, stole money in the sum of $400.25, the property of Ian Backshall.”
The accused pleaded not guilty to the First Count and guilty to the Second Count and elected for trial by Judge Alone on the First Count.
Before the accused can be found guilty of the offence charged I must be satisfied beyond reasonable doubt of each of the elements of the offence:-
1. The accused entered a place of residence as a trespasser.
2. He intended to enter as a trespasser.
3.He intended to enter or remain at the place of residence for the purposes of committing an offence namely theft.
4.He knew of the lawful presence of another person in that place of residence or was reckless as to whether another person was there or not.
If the first 3 elements are found proved beyond reasonable doubt but I have a reasonable doubt about the fourth element then my verdict would be not guilty as charged but guilty of the offence of serious criminal trespass in a place of residence.
The Prosecution Case
The Prosecution called four witnesses namely Mark Anthony Collins, Ian John Backshall and his wife Mary Ann Backshall. Ian John Backshall and Mary Ann Backshall were and are the proprietors of the Myoora Motor Inn at Port Augusta. On the evening of the 24^th February they were dining with another member of the staff and her partner in the restaurant of the Myoora Motel Inn. This is indicated on Exhibits P1 and P2.
The reception area and proprietor’s residence of the Motel are across a driveway into the Motel opposite the restaurant. There are doors leading into the reception area from that driveway and on the same side of the Motel there is a side door for the residential area. I was taken on a view of the premises in order to obtain an appreciation of the layout.
Within the residential premises which are attached to the reception area of the Motel there is an internal surveillance unit which allows a person to see who is entering the reception area. This can be observed from both the kitchen and the lounge room. The door leading into the residential part of the Motel is a screen door.
Mark Anthony Collins gave evidence that he was dining with his partner, who is employed at the Motel, Mary and Ian Backshall. After they had finished their meal they were all sitting in the bar area and at one stage Ian Backshall left in order to attend to his duty by going to the residential premises and from there observing the reception area. He gave evidence that after he had left he heard a noise and Mrs Backshall went to the door of the restaurant and looked but did not see anything. A very short time later they heard noises again and heard Ian Backshall calling out.
Mr Collins gave evidence that he heard a cry for help then went out the backdoor and saw Ian Backshall holding another man in an upright position close to the screen door which opens into the residential premises. He gave evidence that the man was struggling but they managed to restrain him until the Police came.
There is clear evidence from the Police Officer who attended, namely Constable Fatchen, that the other man who had been detained was the accused.
In cross-examination it was put among other things that Mr Collins gave a statement to the Police in which he said that during the altercation Mr Backshall had referred to the other person as Boris and he got the impression that they knew each other. In cross-examination he confirmed that that was the case. He said he got the impression Mr Backshall had known him because he referred to him by the name of Boris.
Ian Backshall was called and gave evidence that on the evening of the 24^th February 2004 he dined with Kylie Munroe who is employed at the Motel, her partner Mark Collins and his wife. He said that generally speaking when they dined together in the restaurant he would go back and forward between the residence and the restaurant during and after the meal. When he goes back to his residence he often sits in the lounge room and watches television but at the same time can observe the surveillance monitor in order that he might service the reception area.
He gave evidence that a staff member put the takings of the day in a bank bag and put it on the kitchen table. He said the amount was at least $317 and there would be other takings on top of that base amount.
He gave evidence that about 10 minutes after she had done that the kitchen door opened and he saw a flash of colour namely black and red. He immediately jumped up and ran into the kitchen and saw an Aboriginal person trying to get out of the house through the security door and he grabbed him and they both ended up outside the security door. He said this person had the bank bag which was on the kitchen table in his hands and also a white envelope and two $5 notes which were also on the table. The white envelope contained a cheque. He said that when he grabbed this man outside, he dropped both the envelope, the notes and the bank bag. He then said there was a struggle and Mark Collins came out and gave him a hand and the Police eventually came.
He said that he had never met that person before but on receiving information after this incident he realised that he had heard about him.
In cross-examination counsel for the accused in putting the accused’s case asked the following questions:-
"QWhat name did you know this person as.
AThe person who was associated with the staff member or the person who –
QYes, the person who was associated with the staff member.
AFrancis Abrahamson.
QDo you remember calling the person you detained on this night Boris.
AYes.
HIS HONOUR
QWhy did you do that.
AExcuse my mirth, but I used to be a police officer and I used to address most people that I dealt with in the circumstances of my job by the name of Boris. It was just a common name that a lot of us used, so I guess it was habit.
XXN
QIsn’t it actually the case that what occurred on this night was that you saw an Aboriginal person who you recognised walking past your hotel.
ANo.
QIn fact, you know that person because you have had dealings with him on at least two previous occasions.
ANo.
QI put it to you what actually happened was that you invited this person into your residence and asked him to suck your cock.
AI’m disgusted with that.
HIS HONOUR
QJust answer the question. I’m sorry, counsel has got a duty to put that to you. Give a ‘yes’ or ‘no’ answer, that’s fine.
ANo.
XXN
QAnd that you brought him into your lounge room for the purpose of him giving you fellatio in exchange for $50.
ANo.
QAnd that that’s something that had occurred at least twice before with this person.
ANo.
QAnd that he did attend with you in the lounge room, you pulled your pants down –
AThis is ridiculous.
HIS HONOUR
QIt has got to be put. Just deny it by all means, but it’s got to be put.
APardon?
XXN
QThat he did attend with you in your lounge room at your invitation.
ANo.
QThat you pulled your pants down.
ANo.
QThat that person then knelt down and you had an erection at that stage.
ANo.
QThat, for a period of a couple of minutes, that person gave you fellatio.
ANo.
QAnd then when you were at that point of arousal, you grabbed a towel located in your lounge room and used that towel to –
ANo.
Q– be the reciprocal for the ejaculation.
ANo.
QAnd that, after this had occurred, you refused to give him the money promised for the service, $50.
ANo.
QOn the way out, he grabbed that bag of money on the kitchen table and it was at that stage that you grabbed him and called for help.
ANo.
QI put it to you that you had invited this person into your house for the purpose of receiving sexual favour for money.
ANo.
QThat this wasn’t the first time that had happened.
AHow long have I got to put up with this?
HIS HONOUR
QJust answer the question.
ANo. That’s never happened.
XXN
QI put to you it has happened at least twice before.
HIS HONOUR You have already put that, he has denied that.
XXN
QAnd that you first met my client, this person, about six to 12 months prior to this when you saw him sitting on the rock located across the hotel.
ANo.
QThat you approached him and asked him what he was doing and whether he was all right.
AI don’t know this man. I have never spoken to him before.
QI put it to you you have.
ANo.
QI am putting to you the first time you spoke to him was when you approached him on that occasion and asked him what he was doing and that he then told you that he was selling himself because he needed money.
AI don’t know this man and I wouldn’t recognise him if I walked past him in the street, and I don’t even recognise him today.
QAnd that you then offered him some money on that occasion if he gave you a head job.
ANo.
QAnd that he then followed you into the same room, the lounge room, and proceeded to do that service.
AThese allegations are ridiculous, madam, because my business premises was open and subject to people coming in at any stage of the day or night. My wife was over in the dining room, so was a member of the staff, so was her partner and another staff member had only just left.
QOn that occasion, you actually did pay him.
ANo.
QThat conversation occurred about what he was prepared to do and not prepared to do in relation to whether he would swallow or not.
HIS HONOUR
QThe answer is no, is it.
ANo.
XXN
QThen another occasion, maybe three or four months prior to the February date, you again saw my client walk past your premises and invited him in.
AI don’t know your client. I have never met him, at any time. I have never met him other than the occasion when I grabbed him leaving the kitchen door of my premises.”
I set that out in full because it encapsulates the defence case as put by his counsel. In other words the defendant’s answer to the charge is that although he stole the money and therefore pleaded guilty to Count 2 he was not a trespasser but was on the premises by way of invitation. As can be seen Mr Backshall vehemently denied that suggestion.
Mary Ann Backshall also gave evidence about observing the altercation and that evidence was basically unchallenged.
The last Prosecution witness was Nicholas John Fatchen an arresting Police Officer who came to the scene and identified the person apprehended as the accused and he took him back to the Port Augusta Police Station and conducted a video record of interview (Exhibit P3). I observed that record of interview in which the accused maintained that he was at the premises for the purposes of male prostitution and had known the person from whom he had stolen money as in effect a client.
There was some confusion in the record of interview as to where he said the actual activity took place and there is some confusion as to the identity of the person with whom he says he had sexual activity. At one stage he mentioned the name of a Dave Pearce who in fact works at another job with Mr Backshall. I noticed from the record of interview that the accused seemed superficially to be effected by some substance. He talked about alcohol and pills. I mention this because although there is no challenge to the voluntariness of the record of interview and the Police were fair in how they went about it, nevertheless his state as I observed it is such that I would not use anything he says as material adverse to his case.
The Defence Case
The defendant gave evidence on oath and did not call any other witnesses. I remind myself that the fact that he has given evidence on oath does not relieve the Prosecution of the onus of proving the case beyond reasonable doubt. I also remind myself that his evidence should be treated like the evidence of any other witness in the case, subject to the onus of proof.
He gave evidence that on the 24^th February 2004 he went to his cousin’s place at about lunchtime. He said that he was drinking alcohol and taking Serapax and Valium. He said he took about 6 or 7 of those tablets and was drinking beer and Jim Beam mixed with Coke.
He said that when he left the premises he was feeling pretty drunk. He then set off to walk home and on the way bumped into a friend called Damian Stapleton. He said they had an argument and were just about to have a fight when Damian Stapleton ran off but in doing so dropped a screwdriver which the accused said he picked up. He then continued walking and walked past the Myoora Motel and saw the witness Ian Backshall standing in the area between the reception area and the restaurant known as the breezeway.
He gave evidence that a year or two previously he had oral sex with that same person. The situation in which that arose was that he was sitting on a rock opposite the Myoora Motel when Mr Backshall came up to him and asked him for oral sex and they had that sexual activity in one of the Motel guest rooms and the accused was paid $50. This happened one or two years before the 24^th February 2004.
He gave evidence that on the 24^th February 2004 Mr Backshall obviously recognised him and asked him to have oral sex. They went into the residential area of the Motel namely the lounge room and they had oral sex. He said when that was finished Mr Backshall wiped himself with a towel which he got off the lounge but refused to pay him. As a result the accused when leaving saw money on the kitchen table and grabbed it on the way out as a result of which he was grabbed by Mr Backshall and an altercation took place just outside the door in the breezeway.
The Police eventually arrived and they arrested him and he was interviewed. He agreed with the contents of the Police interview but said that he was feeling effected by liquor and was confused but nevertheless did make it clear that he entered the premises for the purposes of oral sex. He said he has been prostituting himself in this way for about four years.
When cross-examined by Mr Preston it was put to him that when he spoke to the Police in the video record of interview he really told them that oral sex had taken place in one of the Motel rooms and it was only after that that he, whilst leaving, went into the residential area and took the money by way of payment. It was also put to him that he has just made up this story.
The Defence case therefore is that although he stole the money and has pleaded guilty to that charge he was not a trespasser as he had been invited into the premises and that while he was on the premises he was not there for the purposes of theft, that situation only arose when Mr Backshall refused to pay him.
The Defence called no other witnesses.
Conclusion
I have two diametrically opposed versions of the one incident, one from Mr Backshall and one from Mr Abrahamson. I remind myself it is just not a matter of accepting one version over the other. Before I can convict the accused it must be proved beyond reasonable doubt that Mr Backshall is telling the truth about the salient matters and that Mr Abrahamson is not telling the truth.
It was put to me by the Prosecutor, Mr Preston, that there are glaring discrepancies between the version given to the Police by Mr Abrahamson and what he said on oath before me. However as I have indicated earlier I do not rely upon that as evidence of guilt because it is clear on observing that record of interview that Mr Abrahamson was tired, inebriated and not concentrating. However I do bear in mind as his counsel put to me that the question of oral sex and prostitution was in fact raised during that record of interview.
Nevertheless I find it proved beyond reasonable doubt that Mr Abrahamson is not telling the truth. I find that his story is extraordinary and he was an unconvincing and unimpressive witness. In contrast I found Mr Backshall to be honest and straightforward and I believed him beyond reasonable doubt when he vehemently denied that any sexual activity had ever taken place between he and the accused. In my view I do not believe that Mr Abrahamson just happened to be walking past with the screwdriver he had obtained from his friend shortly before and just happened to run across Mr Backshall who was standing in the driveway who just happened to be the person he had oral sex with a year or two before.
I find it incredible to believe that Mr Backshall, even if he was so inclined, would go with the accused into his lounge and with the door unlocked have oral sex whilst his wife and companions are a short distance across the breezeway in the restaurant. I therefore reject beyond reasonable doubt the accused’s version of events.
Nevertheless the question of alcohol still has to be addressed in considering the elements of the offence. Despite the fact that I have found that he was inebriated I also find it proved beyond reasonable doubt that his state of inebriation did not confuse his intention to enter the place of residence as a trespasser. I find that although inebriated he entered through the door for the purposes of theft. Because the door was unlocked and because it was a residential premises and there is evidence that the lights and television were on, I find that despite his state of inebriation he was at least reckless as to whether another person was there. I therefore find that the elements have been proved beyond reasonable doubt and the accused is guilty as charged.

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