R v AJ

[2012] ACTSC 25

R v AJ [2012] ACTSC 25 (8 February 2012)

CRIMINAL LAW – particular offences – offences against the person – assault and act of indecency on female under age of 16 – judge-alone trial – verdict of not guilty.

CRIMINAL LAW – jurisdiction, practice and procedure – limitation of time for prosecution – assault and act of indecency on female under age of 16 – no prosecution more than 12 months after alleged offence if girl “over the age of fourteen years and under the age of sixteen years” – indictment alleged acts in 1978 or 1979 – evidence that acts complained of might have taken place after complainant turned 14 years of age – verdict of not guilty.

Crimes Act 1900 (ACT) ss 69-72, 73, 74, 76, 77, 78
Evidence (Miscellaneous Provisions) Act 1991 (ACT), Div 4.2, ss 40, 43, 46
Supreme Court Act 1933 (ACT), s 68C

Saraswati v The Queen (1991) 172 CLR 1

No. SCC 109 of 2008

Judge:             Penfold J
Supreme Court of the ACT

Date:              8 February 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCC 109 of 2008
AUSTRALIAN CAPITAL TERRITORY           )

R

v

AJ

REASONS FOR JUDGMENT

Judge:  Penfold J
Date:  16 December 2008
Place:  Canberra

THE COURT ORDERED THAT:

A verdict of not guilty be entered on the charge that between 1 June 1978 and 11 May 1979 the accused assaulted the complainant, who was under the age of 16 years, to wit 13 years of age, and at the time of the assault committed an act of indecency on her.

Introduction

The charge

1. The accused AJ was arraigned before me on one count, as follows:

That between the 1^st day of June 1978 and the 11th day of May 1979 at Canberra in the Australia Capital Territory [he] assaulted a female, [the complainant], who was under the age of 16 years, to wit 13 years of age, and at the time of the assault, committed an act of indecency upon [the complainant].

Legislation

1. The charge arose under s 76 of the Crimes Act 1900 (ACT) as in force at the time of the alleged offence. That section operated subject to s 78 of the Crimes Act.  The two provisions were in the following terms:

Indecent assault

76. A person who assaults a female and at the time of, or immediately before or after, the assault commits an act of indecency upon or in the presence of that female is liable to imprisonment for three years, or, if the female is under the age of sixteen years, to penal servitude for five years.

Limitation

78. If the girl was, at the time of the alleged offence, over the age of fourteen years and under the age of sixteen years, no prosecution under section seventy-one, seventy-two or seventy-six of this Act shall be commenced after the expiration of 12 months from the time of the alleged offence.

1. The accused pleaded not guilty to the charge.

Trial by judge alone

1. The accused elected to be tried by judge alone in accordance with procedures specified in s 68C of the Supreme Court Act 1933 (ACT).

1. In a judge-alone trial the judge must give herself certain directions equivalent to those that would be given to a jury.  The directions I gave myself for the purpose of this trial are set out at Appendix A. 

Suppression of names

1. This proceeding is a sexual offence proceeding for the purposes of Division 4.2 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), involving a complainant who is the step-daughter of the accused. Section 40 of that Act makes it a strict liability offence in relation to such a proceeding to publish the name of the complainant, protected identity information about the complainant, or a reference or allusion that discloses the complainant’s identity or from which the complainant’s identity might reasonably be inferred.

1. In these reasons, I do not mention the names of the complainant, the accused and the family member who gave evidence.  I have added an appendix to these reasons (Appendix B) which I order not to be published but to be made available to the prosecution and the accused only, to be used by them if required for the purposes of these and any subsequent proceedings.

Verdict

1. At the end of the trial, I entered a verdict of not guilty on the charge, and said that I would provide reasons later.  These are my reasons.

Background to the charge

1. The case statement alleged that AJ indecently assaulted the complainant, who was his stepdaughter, between 1 June 1978 and 11 May 1979, when she was 13 years old.

1. The complainant was born on 12 May 1965.  Her parents were not married to each other.  The complainant’s mother formed a relationship with AJ, and married him when the complainant was two years old.  Three daughters were born to that marriage.  The complainant only became aware that AJ was her stepfather when she was about 10 years old.  In mid-1978 the complainant’s mother left AJ, and sometime later her three younger daughters went to live with her.  The complainant chose to remain with AJ.

1. The case statement sets out an allegation that one night, AJ came home from work and came into the complainant’s bedroom, “reeking of alcohol”.  He told her to come into his room and get undressed, which she did.  He then performed various sexual acts on her, including touching her breasts and kissing the outside of her vagina. 

How old was the complainant at the time of the offence?

1. When the complainant was 16 or 17 (in the early 1980s), she told her mother about AJ’s actions, but she did not speak to police until March 2004.  AJ was interviewed by police in May 2005, and proceedings were begun by summons on an information sworn on 20 June 2007.  That is, the prosecution was commenced nearly 30 years after the alleged offence was committed.

1. Under s 78 of the Crimes Act as in force until 1985 (at [2] above), a prosecution under s 76 in relation to an offence allegedly committed against a girl who is “over the age of fourteen years” at the time must not be commenced more than 12 months after the time of the alleged offence.

1. It was accordingly important in this case for the prosecution to establish that, at the time the offence was committed, the complainant was not “over the age of fourteen years”.

1. The dates specified in the indictment covered a period from shortly after the complainant’s thirteenth birthday until immediately before her fourteenth birthday. If I was satisfied that any offence had been committed during the period particularised, then s 78 would present no difficulty for the prosecution. If the evidence suggested that the offence had been committed after that period then, apart from s 78, the prosecution could have applied to amend the indictment to specify different dates. The effect of s 78, however, was to exclude the possibility of amending the indictment to extend into any period in which the complainant was “over the age of fourteen years”.

1. The first problem was to determine what was meant by “over the age of fourteen years”.  The phrase clearly describes a person who is 15 years old, or older.  It is not immediately clear whether it also describes a person who has attained the age of 14 years, and is therefore over the age of exactly 14 years; she may, for instance, be aged 14 years and one day, or 14 years and nine months.

1. The interpretation of s 78 is complicated by other provisions of the Crimes Act also in force at the time of the alleged incident that use an unambiguous expression, being “of or above the age of” (for instance, ss 69 to 72, 73 and 74). Section 77 uses both phrases – “over the age of fourteen years” in s 77(a) and “of or above the age of sixteen years” in s 77(c)(ii)” – with no obvious explanation for the use of the two different formulations.

1. On the face of it, these other provisions might suggest that “over the age of” is intended to mean something different from “of or above the age of”; on the other hand, if the expression “over the age of fourteen years and under the age of sixteen years” as used in s 78 was intended to mean “no longer fourteen years old but not yet sixteen years old”, the obvious description to use would have been “fifteen years old”.

1. In Saraswati v The Queen (1991) 172 CLR 1, the High Court considered provisions of the Crimes Act1900 (NSW), including s 78, which at the relevant time was in similar terms to the provision in issue in this case. Section 78 was quoted by Dawson J at 10; it excluded prosecutions for certain sexual offences being commenced more than 12 months after the time of the alleged offence:

if the person upon whom the offence is alleged to have been committed was at the time of the alleged offence over the age of fourteen years and under the age of sixteen years.

1. In that case the meaning of the phrase “over the age of fourteen years” was not in issue, and was not explicitly canvassed, but in the course of the judgments some useful comments were made. Deane J, in dissent but not as to this aspect of the interpretation of s 78, made remarks that implied an interpretation of “over fourteen” as meaning “having attained the age of fourteen”. First, his Honour expressed some uncertainty about the policy underlying s 78 of the NSW Act, and in the course of his remarks said at 7:

it is difficult to understand why the time limit is imposed in the case of the more serious offences only in a case where the alleged victim has reached fourteen years of age.

1. Later on the same page he referred to cases in which:

the statutory time limit [imposed by s 78] ... was inapplicable (e.g. a thirteen-year-old victim) or had not expired.

1. In the same case, Gaudron J in the majority referred to the provisions of s 78 and noted at 17 that:

A limitation provision with respect to such offences had been in the Act since 1910 when the age of consent was altered from fourteen to sixteen years.

1. Her Honour did not comment on the reason for including such a limitation provision, and it is not easy at this distance to imagine such a reason. If the provision was consequential on the lifting of the age of consent from 14 years to 16 years rather than just contemporaneous with that change, it probably was intended to cover the full period of two years during which consent would previously have been able to be given, that is from when the person turned 14 until when she turned 16, rather than only the period while she was 15 years old.

1. Having regard to the peculiarity of using “over the age of fourteen years and under the age of sixteen years” to describe “fifteen years old”; to Deane J’s reference to the equivalent provision taking effect if a victim has “reached 14 years of age” and his reference to “a 13-year-old victim” as an example of a case in which the statutory limitation period was not applicable; and to the origin of the provision as mentioned by Gaudron J, I was satisfied that s 78 was intended to impose a limitation period in respect of an offence alleged to have been committed against a person who had turned 14 at the time of the alleged offence.

1. This meant that there was no scope for the indictment to be amended to cover any period beyond the complainant’s fourteenth birthday, and that the offence could only be made out if the prosecution could establish that the complainant had not attained the age of 14 at the time of the incident.

The evidence

The offence

1. The complainant gave evidence of the act of assault and associated act of indecency, as well as of other uncharged sexual acts to which AJ had subjected her.  That evidence was not challenged and on the basis of her evidence I would have had no trouble being satisfied beyond reasonable doubt that the incident happened as she described.  It was apparent from her evidence, including of events in her life subsequent to her experiences with AJ, that she had been damaged by those experiences.

The timing of the offence

Evidence

1. Most of the complainant’s evidence related to the timing of the incident.  She gave evidence that she was still going to school when the incident had happened, and that it had happened the night before she had been “run over by a pushbike”, possibly on the last day of the school term (she thought she remembered wanting a day off school), or early in the school holidays.  She said that she had then gone to Camp Sturt during that school holiday period, still bearing a scab on her face from the pushbike accident, and that she had had her birthday while at Camp Sturt.  This evidence puts the incident in late April or early May, but it does not identify the year concerned.

1. Other evidence was relevant to the year in which the incident took place.  Initially the complainant said that the birthday shortly after the incident would have been her twelfth or thirteenth birthday (which would have been in 1977 or 1978), and that the incident had happened during her first year at Melba High School.  She said she left Melba High School in the first term of Year 8, and could not remember how old she was at that time, but later said that she would not have been able to leave school until she was 14 and nine months (which would have been in February 1980). A 1979 school magazine put in evidence contains a photograph of the complainant in a Year 8 class at Melba High School, which means that she would have turned 14 in May of Year 8 and would have attained 14 years and nine months early in Year 9.  She could not remember whether she went back to school after the May school holidays in which she went to Camp Sturt after the bicycle accident.

1. The complainant was cross-examined about the fact that at the committal hearing she had asserted that the incident involving AJ had taken place when she was 12 or 13 but not 14, but had conceded that she was not sure why she believed this and that she could not be specific about her age. At trial the complainant said that she knew “exactly when the incident happened”, which was “the night before I got run over”, but agreed that she didn’t remember the year.

1. The complainant also agreed that in November 1980 she spoke to Mr Hall, a welfare officer, and told him that she had left school in May 1980.

1. The complainant’s mother gave evidence that she separated from AJ in 1978, and that their marriage was dissolved in June 1979.  At that time, she said, the complainant was still at Melba High School.

1. The prosecution had not been able to find any records about when the complainant had been run over by a person on a bicycle, or about when she went to Camp Sturt.

Analysis

1. Some of the evidence supports the possibility that the incident happened shortly before the complainant’s fourteenth birthday in May 1979, or even earlier.  That evidence includes the complainant’s direct assertion that she might have been 12 or 13 at the time of the incident but was not 14, and that she had left school aged 14 and nine months (which would have been in February 1980, making it unlikely that she would have gone to a school holiday camp in May 1980).  Her evidence that she had left school in the first term of Year 8 (just before she turned 14) is also consistent with the possibility that the incident happened before the complainant turned 14, but not with her evidence about leaving school aged 14 and nine months and not being able to leave school before reaching that age, or with her mother’s evidence that she was still at Melba High School in June 1979 just after she turned 14.

1. Other evidence raises the possibility that the incident occurred shortly before the complainant’s fifteenth birthday in May 1980 and that she did not return to school after those school holidays.  That evidence includes her inability to recall going back to school after her stay at Camp Sturt, and the fact that in November 1980 she told Mr Hall that she had left school in May 1980.

1. The fact that some of the complainant’s evidence about timing was inconsistent with other evidence, and that she frankly admitted that she could not be sure about the year in which the incident happened, also undermines the weight of the evidence supporting the possibility that the incident happened in 1979.

1. I could only have found AJ guilty if I had been satisfied beyond reasonable doubt that the incident had happened shortly before the complainant’s fourteenth birthday in May 1979 or earlier, and therefore either during the period specified in the indictment or in an earlier period that could have been covered in an amended indictment.  The real possibility that the incident had happened shortly before the complainant’s fifteenth birthday in May 1980 raised a reasonable doubt about the timing of the incident, and the prosecutor conceded that I had no alternative but to enter a verdict of not guilty on the charge against AJ.

Effect of the s 78 limitation period

1. Although s 78 as applicable in this case has long since disappeared from the statute book, it continues to apply to relevant offences committed before the mid-1980s, and its effect is unlikely to be altered at this stage. Nevertheless, it is appropriate to emphasise the unfortunate effect the section has had in this case. I have already indicated my acceptance of the complainant’s evidence of AJ’s conduct, and but for s 78 the accused AJ might well have been found guilty of an offence that, if it was committed, should certainly not have gone unpunished. One can only imagine that s 78 and equivalent provisions originally had a policy basis of some kind but, even if such an approach made sense in 1910, it is unfortunate that the provision survived into the mid-1980s. Several generations of girls have grown up since 1910 with the age of consent at 16 years. Whatever the position, and the policy basis, in 1910, it is hard to imagine any basis for assuming that 14- or 15-year-olds born in the 20^th century would have found it so easy to disclose sexual molestation of the kinds to which s 78 applied that a one-year limitation period for such disclosure remained appropriate for a further 75 or so years.

   I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

   Associate:

   Date:    8 February 2012

Counsel for the Crown:  Mr J Lawton
Solicitor for the Crown:  ACT Director of Public Prosecutions
Counsel for the defendant:  Mr J Sabharwal
Solicitor for the defendant:  Rachel Bird & Co
Date of hearing:  16 December 2008
Date of judgment:  16 December 2008
Date of reasons:  8 February 2012

Appendix A – trial directions

Part 1 – General directions for judge-alone trial

1. I set out first the general directions I have given myself.

1. The prosecution has brought this charge and the prosecution bears the burden of proving it.  Guilt must be proven.  The accused does not have to prove innocence.  The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his innocence.  He is entitled to be presumed innocent of any charge until his guilt has been proven to the standard of proof that the law requires, namely beyond reasonable doubt.  To prove guilt, the burden of proof rests upon the prosecution to prove each and every element or ingredient of the offence charged beyond reasonable doubt.

1. It is not enough for the prosecution to persuade me that the accused is probably guilty or even that he is very likely guilty.  On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events, and the prosecution does not have to do so.

1. If the accused offers or suggests an explanation which is consistent with his innocence, he is not required to prove that explanation.  It is for the prosecution to disprove the explanation, or show that it is irrelevant; if the prosecution does not do so, the prosecution has not proved its case to the required standard of proof.

1. In deciding what evidence I accept and what evidence I reject, I may take account of all manner of things, including what a witness had to say; the manner in which the witness said it; and the general impression which the witness made upon me when giving evidence.  I am not obliged to accept the whole of a witness’s evidence.  I may, if I think fit, accept part and reject part of the same witness’s evidence. 

Part 2 – Specific directions

Accused not giving evidence

1. The accused did not given evidence in the trial.   

1. An accused person may always, by giving evidence (or calling other evidence) make a response to the case presented by the prosecution by way of an explanation for the whole or parts of a prosecution’s case, but there is no obligation to do so.

1. The prosecution bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offence charged.  The accused bears no onus, and is presumed to be innocent until I am satisfied beyond reasonable doubt by the prosecution that the accused is guilty.

1. Although the accused may give or call evidence in relation to the whole or any part of the prosecution’s case by way of explanation for it, or by way of additional matters which the accused may wish to raise, the accused may equally choose not to give or call any evidence in that regard. He is entitled to say nothing and make the prosecution prove his guilt.

1. As a matter of law, the accused’s silence in court and the accused’s choice not to call evidence cannot be used against him. The accused’s choice not to offer an explanation of the whole or any part of the prosecution’s case by giving evidence or calling evidence constitutes no admission by the accused and no such inference must be drawn from that fact.

1. Nor may I use such a choice to fill gaps in the evidence tendered by the prosecution, or as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt.  I must not speculate about what might have been said in evidence if the accused had himself given evidence, or what might have been said by any other person who might have been called by the accused as a witness in the trial.

Evidence given by audiovisual link

1. The complainant gave evidence by audiovisual link from a remote location in accordance with s 43 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). Under s 46 of that Act, a jury must be warned not to draw any inference adverse to the accused from the fact that evidence is given from a place other than the courtroom, so I gave myself an equivalent warning.