R v ADAMS - [2011] SADC 161

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ADAMS
Criminal Trial by Judge Alone
[2011] SADC 161
Reasons for the Verdicts of His Honour Judge Clayton
17 October 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with 11 offences involving four separate complainants.
Counts 1, 3, 4, 6 and 7 allege offences of Unlawful Sexual Intercourse.
Count 2 alleges Aggravated Inciting a Child to Commit an Indecent Act.
Counts 5 and 11 allege Aggravated Indecent Assault.
Counts 8, 9 and 10 allege Indecent Assault.
VERDICT:
Not Guilty Count 7
Guilty Counts 1 to 6 & 8 to 11 inclusive.
Criminal Law Consolidation Act 1935 s 62 , s 63B , s 5AA(3) , referred to.
R v Prasad (1979) 23 SASR 161; Doney v The Queen (1990) 171 CLR 207; R v Pahuja (1987) 49 SASR 191; R v Pfitzner (1976) 15 SASR 171; R v H [1995] SASC 5132; Knuller (Publishing, Printing & Promotions) Ltd v Director of Public Prosecutions [1973] AC 435, considered.

R v ADAMS
[2011] SADC 161

The accused has been charged with 11 offences involving four separate complainants. He has elected for trial by judge alone. The complainants are youths who at the time of the alleged offences were between 12 and 14 years of age. In these reasons I will refer to them as C1, C2, C3 and C4 respectively.
All of the offences are alleged to have been committed at the home of the accused at Loxton.
Counts 1, 4 and 7 allege offences of Unlawful Sexual Intercourse with C1 when C1 was 14 years of age.
Counts 2, 3, 5 and 6 allege offences against C2 when he was 12 years of age. Count 2 alleges Aggravated Inciting a Child to Commit an Indecent Act, Counts 3 and 6 allege Unlawful Sexual Intercourse and Count 5 alleges Aggravated Indecent Assault.
Each of counts 8, 9 and 10 allege Indecent Assault upon C3 who was 14.
Count 11 alleges Aggravated Indecent Assault upon C4 who was aged 12 years.
In each case the age of the complainant is an essential ingredient of the charge. There was no issue as to the respective ages of the complainants and I am satisfied that the Crown has proved the ages which are alleged beyond reasonable doubt.
At the end of the Crown case Mr Richter, who appeared for the accused, submitted that in the case of counts 2 and 3 there was no reliable evidence as to the date of the alleged incidents. I ruled that the date was not an essential element and that for the purpose of the application I had to take the prosecution evidence at its highest. I dismissed that application.
Mr Richter also submitted that I should deal with case in accordance with the principles described in Prasad. I ruled that the state of evidence was not such that I should enter a verdict of not guilty at that time. (See R v Prasad (1979) 23 SASR 161, Doney v The Queen (1990) 171 CLR 207 and R v Pahuja (1987) 49 SASR 191).
After I had made that ruling Mr Richter then advised the court that his client did not propose to call evidence and counsel made their final addresses.
Before the addresses commenced the prosecutor conceded that there was no evidence which supported count 7. That count must therefore be dismissed.
The remaining 10 counts must be considered separately. Each of the essential ingredients of those counts must be proved beyond reasonable doubt. The burden of proof rests with the Crown. If I am left with a reasonable doubt as to any element of the charge I must give the accused the benefit of that doubt and find him not guilty of the charge.
As I have mentioned the accused did not give evidence. He cannot be criticised for exercising that right. He is not required to prove anything.
In addition to evidence of the charged acts the prosecution adduced other evidence of conduct which is not the subject of any charge. I can only use evidence of uncharged acts where I am satisfied that the act occurred. The evidence of uncharged acts was permitted because the whole course of events provides a context in which it is alleged that the charged incidents occurred. It is alleged that the whole sequence of events throws light upon the nature of the relationship between the complainants and the accused.
The evidence of the uncharged acts can be used together with the evidence going directly to the charges to determine what weight I can place on the complainants' evidence. The evidence may assist me in concluding that the complainants' evidence is reliable. Alternatively, it may assist the defence in showing inconsistency, unreliability or inherent improbability in the evidence, thereby raising doubt about the charges. The evidence of the uncharged acts can be used to assist in explaining the background against which the charged offences occurred. It may also be used to explain why a complainant might be unclear about precise dates of the offences charged.
It would be wrong for me to conclude from the other conduct of the accused that he is the sort of person who would be likely to commit the offences with which he has been charged.
Ultimately I must render my decision as to each count upon the evidence in relation to that particular charge.
In assessing the reliability and truthfulness of the witnesses I have taken into account the directions that are normally provided to a jury. In particular I note that a witness can be truthful or reliable about some matters but not others and that I can accept some of the evidence of a witness whilst not accepting other evidence of that witness.
Before descending to consider the evidence as to the individual counts it is necessary to make some general observations about the environment in which the alleged offending occurred.
In late 2009 and 2010 the accused lived in Loxton with his teenage son. He worked as a taxi driver. A number of youths were in the habit of visiting his home. Some of them were friends of the son of the accused but others were not. The accused provided the visiting youths with cigarettes and alcohol and at times provided free taxi rides. There is some evidence that the accused allowed youths to watch pornographic movies, but I regard that as a peripheral matter to which I do not attach significance.
There is evidence, which I accept, that when a youth asked for a cigarette the accused would sometimes reply with a statement like "You have to kiss me first" or "You have to give me a head job". There is evidence which I accept, that at least C1 and C2 would regularly masturbate themselves in the presence of others at the home of the accused.
The prosecution case was that the accused groomed the youths and that his conduct progressed from initial touching to kissing, masturbation and in the cases of C1 and C2 to either anal intercourse or fellatio.
I now turn to consider the individual counts.
Count One -Allegation that between 1 November 2009 and 31 January 2010 the accused at Loxton committed the offence of Unlawful Sexual Intercourse with C1, a person under the age of 14 years, by performing an act of fellatio upon him
C1 was born on 23 April 1997. He is currently 14 years of age. In some respects he is quite mature. He is in grade 8 at school. He was initially reluctant to say anything about the alleged offending and claimed to be unable to remember relevant matters. For example, in answer to one question he responded "I can't remember. I'm not very good with my memory. It's shit as".[1] He answered many questions saying that he could not remember.[2] In response to one question he protested "I can't remember anything for God’s sake".[3] On the first day of trial the court adjourned early because of the lack of progress with his evidence.
[1]    T40 l32.
[2]    For example T41 l26, T41 l33, T42 l1.
[3]    T43 l15 and T43 l19.
When the court resumed on the following day C1 was more helpful, but when asked about one of the relevant events he was reluctant to give evidence claiming "I've lost it now". He again claimed to have memory problems.[4] His position was evidenced by his answer to one question "It's in my head there, something about - I just can't get it out of my mouth".[5]
[4] T47.
[5] T48 l36.
Eventually C1 described laying on the bed alongside the accused. They were both masturbating. C1 said: "And then he rolled over and then started to give me a head job, and as he was moving his mouth up and down, he was using his tongue as well".[6] He said the accused was using his tongue as he was going up and down on his penis.
[6] T50 l4.
As I have indicated C1 was reluctant to give that evidence, possibly because he was embarrassed. However his initial reluctance provides no reason not to accept the evidence which he eventually gave. His evidence describes an act of fellatio amounting to unlawful sexual intercourse.
I find that the evidence proves count one beyond reasonable doubt.
Count 2 - Aggravated Inciting C2, a child of the age of 12 years, to Commit an Indecent Act
In this case the alleged victim was C2, who at the time of the alleged offence was 12 years of age.
The information alleges that the offence was committed on 26 January 2010, which was Australia Day. C2 gave evidence that the relevant incident occurred on Australia Day. However he also gave contradictory evidence that the relevant event occurred at around the time of his mother's birthday which was in May. C2 told the court he did not know the actual date of Australia Day.
The evidence does not prove beyond reasonable doubt that the alleged incident occurred on 26 January 2010. That deficiency was the basis of a submission by Mr Richter that there was no case to answer. I ruled against the submission. In the case of this offence the date is not a material matter or an essential element of the charge. (R v Pfitzner (1976) 15 SASR 171, R v H [1995] SASC 5132 paras 31 to 35).
Notwithstanding his age C2 was a good witness. He was mature beyond his years, articulate and gave his evidence clearly. I accept his evidence.
C2 gave evidence that he first went to the home of the accused with C1. Thereafter he went to the home of the accused almost daily to smoke cigarettes.[7] He said the accused would sometimes say "If I give you a cigarette you have to be my boyfriend and stuff like that". C2 said that on one occasion the accused said that "If he gave me a cigarette I have to fuck him up the arse".[8]
[7] T91.
[8] T92.
There is other evidence that on occasions the accused bought alcohol for the youths.
C2 gave evidence that on the day which he described, perhaps incorrectly as Australia Day, there was a barbecue at his home after which he went to the home of the accused. C2 was given a cigarette and sat at the kitchen table. C2 gave evidence that after giving him the cigarette the accused made coffee for himself, sat down at the table with a cigarette while C2 was having his cigarette and said "For that cigarette you have to let me give you a head job, then you give me a head job". C2 said that he told the accused to "Fuck off" but that after C2 finished his cigarette the accused tried to kiss him so he got up and walked out.
At that time C2 moved on to give evidence of other incidents to which I refer later before the court adjourned.
When the court resumed on the following day C2 was again asked about his visit to the accused on what he described as Australia Day. C2 said that another youth started masturbating and that the accused brought out some Vaseline which C2 used. C2 gave evidence that the accused asked for "a head job" and C2 replied "Maybe".[9] It was then that the accused said that because he had given C2 a smoke, C2 had to give him a head job and then he would give C2 a head job.[10]
[9] T107.
[10] T108.
C2 said that he left the kitchen and went to a bed in the lounge room. He said "I dropped my pants down to the bottom of my crutch and I started wanking". That continued for two or three minutes. The accused produced a jar of Vaseline and said "Here, use this". C2 took some Vaseline from the jar and rubbed it on himself. C2 masturbated for about two or three minutes while the accused watched. After that C2 had another cigarette and left the home.[11] They are the circumstances alleged to give rise to count two.
[11] T108.
Section 63B of the Criminal Law Consolidation Act 1935 provides:
(1) A person who-
(a) incites or procures the commission by a child of an indecent act; or
(b) acting for a prurient purpose –
(i) causes or induces a child to expose any part of his or her body; or
(ii) makes a photographic, electronic or other record from which the image, or images, of a child engaged in a private act may be reproduced,
is guilty of an offence.
The prosecutor submitted that the offence of inciting a child to commit an indecent act is made out because the accused actively encouraged the sexual act by suggesting that C2 give him a head job and then facilitated C2 to masturbate in his presence by giving him Vaseline to do so.
I find that the act of masturbation as described by C2 in the presence of the accused was an indecent act in that the conduct was something which ordinary decent persons would find shocking, disgusting or revolting. Knuller (Publishing, Printing & Promotions) Ltd v Director of Public Prosecutions [1973] AC 435.
Mr Richter submitted that the facts did not amount to inciting C2 to commit an indecent act. He said the definition of "incite" was "to stir up or provoke to action". He submitted that the provision of the Vaseline did not stir up or provoke the masturbation because the act of masturbation had already commenced and that what the accused did was not to incite but was to assist after the act had commenced. He also submitted that the masturbation had nothing to do with "the head job conversation", because the head job had been declined.
The Macquarie Dictionary, second revised edition, defines "incite" as meaning "To urge on; stimulate or prompt to action". The Shorter Oxford English Dictionary defines "incite" as meaning "To urge or spur on; to stir up, instigate, stimulate".
I find that the actions of the accused fall within both of those dictionary definitions. I accept that the act of masturbation commenced as voluntary conduct on the part of C2 and that it was not incited by the "head job conversation". However, I find that it is not necessary for the accused to have instigated the act of masturbation. I find that by providing Vaseline and by his attitude to the events generally the accused did urge on, spur on or stimulate C2 to continue masturbating, which was an indecent act.
Section 62 provides that for the purpose of s 63B a child means a person under the age of 16 years. As I have mentioned C2 was 12 years of age. That element of the offence has been established beyond reasonable doubt.
Count Three - Alleged Unlawful Sexual Intercourse by the accused inserting his finger into the anus of C2, a person under the age of 14
The fact that C2 was under the age of 14 has been established beyond reasonable doubt.
C2 gave evidence that after his first visit he went to the home of the accused the following day to get another cigarette. He said that when the accused let him in to the house "… he hugged me and put his hands on my arse". C2 said that he hugged the accused back and the hands of the accused went "down the back of my pants and in my bum hole". C2 said the accused was not just touching on the outside but "his finger went in my arse" for about five seconds. C2 said that he pulled the arms of the accused out, walked to the table, sat down and asked for a smoke. That is the conduct which is alleged to constitute count three.[12]
[12] T98.
C2 said there were other occasions when the accused had hugged him and had tried putting his hands down the front of his pants "but that didn't work out for him too well".[13]
[13] T102.
I accept the evidence of C2 and find that the accused inserted his finger in the anus of C2. I find that the evidence establishes penetration. The essential ingredients of count three have been proved beyond reasonable doubt.
Count Four - Unlawful Sexual Intercourse with C1 by the accused inserting his penis into the anus of C1
C1 was reticent about giving evidence of this allegation. He had been asked whether there were other occasions that made him feel uncomfortable. He commenced but then stopped his description of the incident saying "There was one time I was - we were in the room and I had my pants down and - nuh, it just slipped out of my mouth then".[14] However with prompting C1 continued:
I had my pants down and he said that he wanted to fuck me hard and he, like, rolled me over and put his knees over me and my legs were apart about six inches and he tried getting it in my bum but it only went in once and I felt a little bit of pain, then I jumped away a little bit and that's all I can remember.[15] (my underlining)
[14] T55.
[15] T56.
Later C1 repeated "He tried to get it in a couple of times and he couldn't, and then it went in once and I jumped and I felt a little bit of pain". C1 said that after that he pulled his pants up and had a cigarette.[16] He said that the accused said to him "It's not gay unless you do it all the time" and "What happens in the house stays in the house".[17]
[16] T57.
[17] T58.
It is necessary for the Crown to prove beyond reasonable doubt that the penis of the accused actually penetrated the anus of C1. Mr Richter submitted that it is not clear from the evidence that "it went in (his) bum", whether the penis of the accused simply went between the cheeks of his bottom or there was actual penetration of the anus. The slightest penetration is sufficient but there must be penetration.
I find that the evidence to which I have referred does prove beyond reasonable doubt penetration of the anus of C1 by the penis of the accused. That follows from the statement "he tried getting it in my bum but it only went in once".
C2 gave other evidence of the accused kneeling over him on the bed, masturbating and then ejaculating on his chest.[18] I treat that evidence as an uncharged act.
[18] T59.
Count Five - Aggravated Indecent Assault of C2
C2 gave evidence of an incident a couple of days after his birthday when both he and C1 were at the home of the accused. He said:
…we were in the lounge room and we started wanking and (the accused) brought out some Vaseline from his room and gave some to (C1) and rubbed it on (C1) for 20 seconds and then he asked me if I wanted some and then I said "No, I don't like it". Then (C1) and (the accused) went back to his room and (the accused) - like (C1) asked me, as he was walking past, to follow him, so about a minute after he asked me to follow him I followed him in and (C1) was laying on the right side of the bed, (the accused) was in the middle, so I lay on the other end of the bed and started wanking and then (the accused) put his hand on my groin or on my penis and I rolled over and (the accused) spooned me for about five or six seconds, till I said stop.[19]
[19] T109.
C2 said that the accused touched him on his penis for about two or three seconds until he rolled over. He said that when he said the accused spooned him he meant "Like he held me and, like, pretended, like, he had his doodle - cock in me".[20]
[20] T112.
He said that event happened before his mother's birthday which is 30 May.
I accept the evidence of C2 and find beyond reasonable doubt that the accused placed his hand on the groin and penis of C2 and also "spooned" C2 for about five or six seconds. I find that conduct amounted to an indecent assault.
Count Six - Unlawful Sexual Intercourse by the accused inserting his penis into the anus of C2, a person under the age of 14
C2 gave the following evidence of an occasion which was a day or two before his mother's birthday:
… I was with C1 again and me and C1 were in (the accused) bed wanking and (the accused) come in, C1 – C1 – (the accused) was in their wanking himself and C1 and me were in there as well wanking and C1 got up and left and I had gone to stand up and he had knocked me down, ripped my pants off, which bent my belt buckle, used the Vaseline and said " Bite the pillow because this is going to hurt", then rubbed the finger in his left hand and shoved it up my clacker… He - like, he said "Bite the pillow" because he was - yeah, and I sort of gathered what it meant and he shoved his finger up my arse and he - once he went in about 20 times and it came out and then he put his hand on my arse and then said "Bite" – I’ve already said that. Then put his hand -guided his dick in and put his hand above my head and - yeah, and it felt like - and it went in and it felt like it went for about 20 minutes but it could have been less.[21]
[21] T113.

C2 said that the accused stopped after he had ejaculated over his back. C2 wiped his back with a blanket off the bed.
Mr Richter argued that the evidence of C2 was unreliable because C2 had described the penis of the accused as not being circumcised. It is an agreed fact that the penis was circumcised. The evidence as to the view that C2 had of the penis is vague. He said that he had seen the penis when it was soft. When asked whether he saw it when it was hard he answered "No, not really, only limp, so I never got to see the whole thing".[22] His evidence that the penis was not circumcised is not a reason for rejecting the evidence of C2. He gave a particularly vivid description of the incident itself. As I have said I found C2 to be a very good witness. I accept his evidence beyond reasonable doubt.
[22] T131.
I reject the defence submission that the evidence surrounding count six is not sufficiently reliable for a properly instructed jury to convict. The evidence was clear and cogent and there is no reason to doubt C2.
I find that the evidence establishes beyond reasonable doubt that the accused inserted his penis into the anus of C2 in the way described by C2.
Count Seven - Unlawful Sexual Intercourse with C1 by the accused performing an act of fellatio
The Crown abandoned this count and it is unnecessary to consider it further.
Counts Eight, Nine and Ten - Three counts of Indecent Assault on C3
These three counts involve the same complainant and they occurred on the same occasion.
C3 said that he went to the home of the accused on three occasions. The three alleged offences were committed on the second visit.
C3 gave evidence of C1 asking the accused if he would buy alcohol to which the accused replied that it would cost C1 a kiss. The accused kissed C1, then approached C3 and said that he would need a kiss from him as well.[23] C3 gave evidence of the accused kissing C1 on the lips for about 20 seconds and said "He came over to me and said that he would need one from me as well and he held my head and, like, kissed me and I tried to move my head away but he just kept holding it there".[24] He said that the kiss lasted for about 20 to 30 seconds. He said he tried to move his head away but the accused just held it there and kept pulling it back.[25] He said that the accused had his hand on the inside of his leg "right up near my dick pretty much"[26] and the accused said C3 was beautiful and that he was going to save him for later.[27]
[23] T143.
[24] T143.
[25] T144.
[26] T144.
[27] T144 l19.
C3 said that the accused forced his tongue into his mouth and kissed him like that for about 20 seconds.
C3 then went into the bedroom where a porn movie was being shown. C1 also went into the bedroom. The two youths then laid down on the bed with C1 on the left side and C3 on the right. The accused entered and laid in between them in the middle of the bed. C1 and the accused kissed each other for about 20 seconds moving their hands over each other's bodies. C3 said "we were there for a couple of minutes and then he turned to me and put his arm around, like the back of my neck, and his other arm around the front of me and started kissing me again". C3 said that lasted about 15 seconds. C3 said he was trying hard to pull his head away but again the accused forced his tongue into the mouth of C3.[28] That is the conduct which gives rise to count 9.
[28] T152.
C3 gave evidence that the accused then performed an act of fellatio upon C1. That is an uncharged act although it might have supported count 7 which the Crown abandoned. After a couple of minutes the accused reached for the fly of C3 and pulled the button undone and the zip down. C3 said "You’re tricky" and the accused laughed as if it was just a joke. The evidence of C3 continued:
I was still laying there and my button was still undone, he just, like, quickly put his hands down my pants, under my jocks and everything, and touched my penis quickly, but I jumped straight out of the bed after that.[29]
[29] T153.
C3 said that the accused touched his penis for about two seconds.[30] That is the conduct which gives rise to count 10.
[30] T153.
C3 was a good witness. He was cross-examined about his omission in his initial statement to the police to mention that the accused touched C3 on the penis, the sexual contact between the accused and C1 and the pornographic movie. I do not regard those omissions as being anything other than an innocent oversight. He may not have been provided with the opportunity to describe those events. The evidence of C3 was clear and when cross-examined he was quite open in acknowledging unsatisfactory conduct. I accept his evidence as proof beyond reasonable doubt of counts 8, 9 and 10.
Mr Richter submitted that C3 had no idea as to when counts 8, 9 and 10 were committed. As I have already stated the date of the alleged offences is not an essential element of the offences. The failure of C3 to identify the date with precision is not a reason for rejecting his evidence. In fact the date of counts 8, 9 and 10 can be identified as 8 or 16 May 2010, being the date of a friend’s birthday party.
The evidence of C3 as to the actual offending cannot be criticised.
Count Eleven - Aggravated Indecent Assault on C4 who was aged 12 years
C4 was a friend of C2. He knew the accused as a taxi-driver. C4 went to the home of the accused in September 2010. C2 requested and was given a cigarette for himself and C4.
C4 said that the accused said to him "Now I've given you a smoke you need to give me a kiss" and the accused grabbed the back of the head of C4 and kissed him putting his tongue inside his mouth. C4 said it lasted about two seconds.[31] C4 said he was disgusted. The accused told him that he did not need to tell anyone and it was natural.
[31] T165.
C4 said that the accused also kissed C2 putting his tongue inside his mouth for couple of seconds. After that C2 and C4 washed their mouths out.[32]
[32] T166.
C4 gave his evidence in a straightforward and clear manner. There is no reason not to accept his evidence. I accept his evidence as proof of Count 11 beyond reasonable doubt.
Uncharged Acts
The prosecutor did not identify the uncharged acts with any precision. It is unnecessary for me to make findings as to whether the uncharged acts have been proved beyond reasonable doubt. I have been able to find that counts 1 to 6 and 8 to 11 inclusive have been proved beyond reasonable doubt by the evidence as to those specific charges.
Conclusion
Because of the ages of the victims their consent is not an issue.
The information does not state the circumstances alleged to aggravate some of the offences as required by s 5AA(3). Neither counsel addressed me on the allegation that some offences were aggravated offences. I find that the evidence establishes beyond reasonable doubt the basic offences. I will hear counsel on the question of aggravation.
In the case of count seven there will be a verdict of not guilty.
In the case of counts one to six and eight to eleven inclusive I find that each of the elements of the basic offences have been proved beyond reasonable doubt and there will be verdicts of guilty.