R v Ayles
[2006] SADC 67
•16 June 2006
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v AYLES
Criminal Trial by Judge Alone
[2006] SADC 67
Reasons for the Verdict of Her Honour Judge Simpson
16 June 2006
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - BUGGERY AND INDECENT ASSAULT OR DEALING - GENERALLY
The accused was charged with six counts of indecent assault and two of buggery - accused pleaded guilty to two counts of indecent assault and not guilty to four counts of indecent assault and two of buggery - whether specification of date or range of dates in particulars material to charges - whether intervening abolition of offence of buggery affects prosecution - whether victim presumed incapable of sexual intercourse per anum - whether accomplice warning in respect of charges of buggery required - whether element of assault made out in two charges of indecent assault - delay of over 30 years in prosecution of charges - careful scrutiny of evidence required: Verdicts: guilty on count 1; not guilty on counts 2, 3, 4, 5 and 6.
Evidence Act 1929 ss 34I(5), 34I(6a); Acts Interpretation Act 1915 s 16; Criminal Law Consolidation Act 1935 ss 69, 290, referred to.
R v Pfitzner (1976) 15 SASR 171; Johnson v Miller (1937) 59 CLR 467; R v Liddy (2002) 81 SASR 22; R v Warren [1971] SASR 316; Page v Butcher [1957] SASR 165; R v Doyle [1957] SASR 182; Faulkner v Talbot [1981] 3 All ER 468; DPP v Rogers [1953] 2 All ER 644; Fitzgerald v Kennard (1995) 38 NSWLR 184; Pritchard (1999) 107 A Cr R 88; R v Nieterink (1999) 76 SASR 56; Longman (1989) 168 CLR 79, applied.
Ware (1994) 73 A Crim R 17; R v Packer [1932] VLR 225; R v Moody (1897) QCR 344; R v Philips (1839) 8 Car & P 736, 173 ER 695; R v Waite [1892] 2 QB 600; R v Williams [1893] 1 QB 320; 1 Hale PC 670; R v Eldershaw (1828) 3 Car & P 396, 172 ER 472; R v Groombridge (1836) 7 Car & P 582, 173 ER 256; Tatam (1921) 15 Cr App R 132; R v Young [1923] SASR 35; R v M (1977) 16 SASR 589; R v Cratchley (1913) 9 Cr App R 232; R v Rigney (1975) 12 SASR 30; Hargan v R (1919) 27 CLR 13, considered.
R v AYLES
[2006] SADC 67
The accused, Raymond Frederick Ayles, is charged on Information of the 11 April 2005 with the following offences:
First Count
Indecent Assault. (Section 70(1)(c) of the Criminal Law Consolidation Act1935)
Particulars of Offence
Raymond Frederick Ayles between the 24th day of October 1971 and the 2nd day of May 1972 at Para Hills, indecently assaulted T.Second Count
Indecent Assault. (Ibid)
Particulars of Offence
Raymond Frederick Ayles between the 24th day of October 1971 and the 2nd day of May 1972 at Para Hills, indecently assaulted T.Third Count
Buggery. (Section 69 of the Criminal Law Consolidation Act1935).
Particulars of Offence
Raymond Frederick Ayles between the 24th day of October 1971 and the 2nd day of May 1972 at Para Hills, committed buggery with T.Fourth Count
Indecent Assault. (Section 70(1)(c) of the Criminal Law Consolidation Act1935).
Particulars of Offence
Raymond Frederick Ayles between the 24th day of October 1971 and the 2nd day of May 1972 at Para Hills, indecently assaulted T.Fifth Count
Buggery. (Section 69 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Raymond Frederick Ayles between the 24th day of October 1971 and the 2nd day of May 1972 at Para Hills, committed buggery with T.Sixth Count
Indecent Assault. (Section 70(1)(c) of the Criminal Law Consolidation Act1935)
Particulars of Offence
Raymond Frederick Ayles between the 2nd day of May 1972 and the 18th day of August 1972 at Wilpena Pound, indecently assaulted T.Seventh Count
Indecent Assault. (Section 69(1)(b)(iii) of the Criminal Law ConsolidationAct 1935)
Particulars of Offence
Raymond Frederick Ayles between the 1st day of January 1973 and the 31st day of December 1974 at Mount Gambier, indecently assaulted T.Eighth Count
Indecent Assault. (Ibid)
Particulars of Offence
Raymond Frederick Ayles between the 1st day of January 1973 and the 31st day of March 1975 at Glossop, indecently assaulted T.The trial of the accused commenced on the 5 June 2006 and proceeded as a trial before a Judge without a jury, pursuant to section 7(1) of the Juries Act1927. The accused entered pleas of not guilty to counts 1 to 6 inclusive and pleas of guilty to counts 7 and 8 on the Information.
On the second day of trial, as a result of evidence given by T, amendments were made on the Information, without objection on behalf of the accused, to the particulars of the offences charged in counts 1 and 2, amending the period over which the offence was alleged to have taken place from between 24 October 1971 and 2 May 1972 to between 24 October 1971 and 1 May 1973 in each case, and in counts 3, 4 and 5, from between 24 October 1971 and 2 May 1972 to between 24 October 1971 and 1 May 1974 in each case.
The accused faces serious charges. He comes into this court with a presumption of innocence in his favour. The law regards him as innocent unless his guilt has been proved beyond reasonable doubt. Nothing short of proof beyond reasonable doubt on every element of the charges against him will do. He is not to be found guilty on insufficient or doubtful evidence. It is not enough for the prosecution to show a mere suspicion of guilt, or to show that an accused person is probably guilty. The burden of proving the charges to which the accused has pleaded not guilty is wholly on the prosecution. The accused is not to be found guilty unless the charge in each case has been proved beyond reasonable doubt.
Each element of each offence must be proved beyond reasonable doubt. Each offence must be considered separately. The accused is entitled to separate consideration of each of the crimes charged, having regard to the evidence which applies to each charge.
There was evidence of acts which were not the subject of charges. In fact, there is little dispute about them. Nevertheless, I bear in mind that the relevance of uncharged acts is limited. They may assist in an understanding of the context in which the charged acts are alleged to have occurred. They may explain how it was that a person came to submit to acts which are alleged to have occurred, without complaint. They may establish the nature of the relationship between the victim and the accused. The uncharged acts are not of themselves evidence which can establish the guilt of the accused on account of propensity to commit acts like those alleged in the charges. (R v Nieterink (1999) 76 SASR 56 at 55-57)
The prosecution called the subject of the offending, whom I will refer to as T, and also a number of people who had been members in the early 1970’s, with T, of a Youth Fellowship Group associated with a suburban Anglican church. The accused was the priest for the parish. The prosecution also called T’s parents, who had intercepted correspondence from the accused to T and had themselves received two letters from the accused, after he left the parish in 1975, and the priest who succeeded the accused at the parish. Finally, the prosecution called a police officer who had been involved in the investigation into these charges. A copy of part of some correspondence in 1994 between the accused and former parishioners was tendered as an agreed fact.
T was born on the 2 May 1959. In 1971, he began attending church services at the Anglican church, which was near T’s home. In around June or July 1971, when he was 12 years old, T attended confirmation classes. The confirmation classes were conducted by the accused. At that time, T was in his final year of primary school. He recalled that in the second half of the year 1971, he had completed a test for entry to high school in the following year. T’s parents did not attend the church themselves. The accused occasionally called in to see them, when driving T home from confirmation classes.
On the 15 October 1971, T was confirmed. To mark the occasion, the accused gave T a Prayer Book. T taught Sunday School classes for about a year after he first began attending services at the church, and before he was confirmed. He was 12 or 13 years old, he could not remember exactly. After his confirmation, T became an altar server, and he stopped taking Sunday School classes.
T also attended the Youth Fellowship Group organised by the accused. The Youth Fellowship Group activities included informal meetings at the accused’s home, visits to other parishes, trips to an Anglican Retreat in the Adelaide Hills, excursions to visit parishioners at their holiday homes, camping trips in the Flinders Ranges and a trip to the Northern Territory. The Youth Fellowship Group activities usually occurred on a Friday evening. The accused occasionally drove the Youth Fellowship Group participants home. He would drop T home last.
The Youth Fellowship Group activities, in which the accused participated, included discussions on topics of general interest and concern to the young people who were attending. There were general discussions about sexual matters associated with growing up. T said that the general conversations in the Youth Fellowship Group about sexual matters occurred from time to time, including on the trips to the Flinders Ranges.
The accused and T also discussed matters that were of personal concern in particular to T as a young boy growing up. T said he had asked the accused about the facts of life. At around the time T was going in to high school, rumours were circulating at his school regarding T’s possible sexual orientation. T said he was confused about the direction in which he was heading and he had conversations with the accused about it. T was also experiencing some problems in his family at home. He spoke to the accused about them. It drew him closer to the accused. T said that because of his own involvement with the church, it was easy to speak to the accused.
The accused had a pilot’s licence. His Student Pilot Licence was issued on 10 October 1972. After obtaining a Private Pilot (Aeroplane) Licence on 23 March 1973, the accused was able to take passengers with him on flights. He occasionally took members of the church, including young people from the Youth Fellowship Group, on flying trips. T said that he had been a passenger in a plane flown by the accused on occasions, and in particular, he had been on flying trips with the accused on occasions before there had been any sexual contact between them. He said that he was probably 13 or 14 when he went on the first flying trip with the accused. T turned 13 on 2 May 1972 and 14 on 2 May 1973.
T said that there were eventually conversations between him and the accused which had made him feel uncomfortable. Those conversations concerned his feelings about where he was going sexually. T said that the accused introduced the topic of masturbation and told him that it was a natural activity and not a sinful thing to do. T remembered a conversation during which the accused had told him that on an occasion when T and the accused had shared a tent on a camping trip, the accused had been tempted to touch T, because the accused had noticed that T had an erection.
The accused had asked T if he would like to clean his house for extra pocket money. T agreed. It was after T began cleaning the accused’s house that the first physical sexual contact occurred between them, which, T said, was about 18 months to 2 years after he had first met the accused. He said he was 13 years old.
T said that he had been using the vacuum cleaner when the accused approached him and began talking about sex and masturbation. The accused asked him if he wanted to masturbate. T told him he was not sure that he wanted to do that. The accused nevertheless approached him and began rubbing the area of T’s groin. The accused started to undo and remove T’s clothing. The accused removed his clothing. He continued to masturbate T and invited T to masturbate him. They engaged in mutual masturbation. T told the accused he did not think it was right and that he should not be doing it. The accused told him that it was only natural to masturbate and it was not sinful. The first incident of sexual contact between the accused and T is the subject of counts 1 and 2 on the Information.
Following the first incident at the accused’s home, T went home. He went straight to his room. T told no one about what had happened. He was too embarrassed and he did not think anyone would believe him. He felt confused and angry and did not want to see anyone in the state he was in at the time. It was during the time, T thought, although he could not quite remember, when his mother had moved out from the family home for a short period. T’s mother said that she had left the family home for a few weeks during 1973/1974.
T said that after the first occasion, from about two or three weeks after the first incident, there were other regular episodes of mutual masturbation which continued over a period of some months, about once a week. After a period of time sexual contact became more frequent and developed to a kind of simulated sexual intercourse during which T would lie prone and the accused would place his penis between T’s thighs. Occasionally T said he would lie on his back during the simulated sexual intercourse.
T said that a few weeks after the first incident at the home of the accused, or certainly within three or four months of it, when T estimated he was about 13 or 14 years old, there was an occasion during which the accused and T performed mutual masturbation by one of them lying on the bed and the other putting his penis between the other’s legs, or vice versa. T said that the accused persuaded T to allow him to try anal intercourse with him. T said that the accused told him how to do it. T did what the accused had told him to do, that is, to push his penis into the accused’s anus. At first it did not go in, but T said later on his penis did penetrate the accused’s anus, although “not very far at all”, for no more than a minute or so. The accused said that he didn’t particularly like it at the time and he “didn’t feel right doing it, that it was wrong.”
The incident described by T is the subject of count 3. Count 4 on the Information is a charge of indecent assault as an alternative charge to count 3, in the event that I cannot be satisfied that there was anal penetration of the accused by T.
T said that on the same occasion the accused told T that he would try the same thing. T was lying face down on the bed. The accused put his penis between T’s legs. T said, “later on”, the accused’s penis penetrated his anus, “not very far”. T told him to stop. The accused did so. They continued with mutual masturbation. That incident as described by T is the subject of count 5 on the Information.
T said that the same thing happened on another occasion several weeks later. He said the accused asked him to try it again. T said that it was “pretty much like” the first time although he protested even more, because he did not want to go through with it. He later said that there was always the simulated sexual intercourse, with the penis between the thighs, and there was an occasion, “where there was sort of an attempt to do it again,” but there was no other occasion when penetration occurred.
T also described an incident involving sexual contact with the accused on one of the several Youth Fellowship Group trips to the Flinders Ranges. T went on two or three trips to the Flinders Ranges. During a trip to Wilpena Pound, during which the group climbed up to St Mary’s Peak, the accused and T became separated from the rest of the group. The accused asked T if he wanted to masturbate. The accused persuaded T to engage in mutual masturbation, before they rejoined the rest of the group on the camp.
T said that the first incident of sexual contact between him and the accused at the home of the accused occurred before any sexual contact occurred on a trip to the Flinders Ranges. T fixed the date of the sexual contact on the Flinders Ranges trip by referring to photographs taken on a trip to the Flinders Ranges. T said that the date on which those photographs were developed was in August 1972. The trip on which the photographs were taken was therefore likely to be the first trip T went on in 1972. Sexual contact and, in particular, the accused masturbating T, on a Flinders Ranges trip, fixed by T as occurring in May 1972, is the subject of count 6 on the Information.
T said that the sexual contact between him and the accused occurred on more than one trip, possibly on two trips, but he could not be sure. If it was not on the first trip, it would have been on the second, probably the following year.
Sexual activity between the accused and T occurred regularly, including on camping trips, on overnight visits to other parishioners. At Christmas in 1973, the accused gave T a book, “The Private Pilot”, by CS Hames, as a Christmas present. It was a technical manual on the principles of flight, aircraft engines, navigation, meteorology and aircraft operation for those contemplating a career in aviation. The accused inscribed the front page, “With thanks for all the help you’ve given me during this year, and with every blessing for your future.”
In May 1974, the accused took a group of boys from the church, including T, to the Northern Territory. T turned 15 on the trip. He was given a Bible and a photograph album as a birthday present by the accused and some of the other boys on the trip.
The accused has admitted the charges of indecent assault on a visit to Mount Gambier on the weekend of the 16 February 1974, the subject of count 7, and on a trip to Glossop in January 1975, the subject of count 8 on the Information. T said that at the time of the trip with the accused to Mount Gambier, the accused had told him that when T turned 16, they would be able to tell other people about their relationship.
After the accused left the parish in January 1975, he wrote to T, sometimes several letters a day. The accused wanted to organise a trip for T to visit him interstate. They were planning a trip for T to visit the accused with another boy from the parish in May 1975.
No complaint was made by T to his parents or to any one at all about the sexual contact initiated by the accused, and in particular about the one occasion of anal intercourse he described in his evidence. A failure to make a complaint does not necessarily mean that the allegations he makes are false. A victim of a sexual offence may have valid reasons for failing to make a complaint. (Evidence Act 1929, section 34I(6a)) I bear in mind T’s age at the time of the events he described, his own personal circumstances, including his feelings of shame, the confusion of an adolescent about his sexual orientation and his fear of being disbelieved.
In around March 1975, T’s mother intercepted one of the accused’s letters to T. She opened it and discovered the extent of their relationship. She told T’s father. Together, they met the priest who had taken over from the accused, and the Rural Dean, who was next in line. There is no evidence of the Anglican Church taking any action in relation to what T’s parent’s told the parish priest and the Rural Dean. T’s parents left any further action to the Church.
The accused admitted the physical nature of his relationship with T in correspondence with T’s parents, and later on in a letter to former parishioners. He accepted full responsibility for the subsequent physical involvement that resulted from their friendship. He offered T’s parents “a full and complete apology.”
There is no evidence of any complaint being made to police by the Anglican Church, or at all, at the time the evidence of offending came to light.
The accused gave evidence. He was not obliged to do so. He is now 61 years old. He previously held office in the Anglican Church and, in particular, in January 1970, he was appointed as the priest in charge of the parish in which T lived. At that time, church activities were being conducted in temporary premises, while the construction of a new church was being completed. The accused was then about 25 years old. On Christmas Day 1971, a new church building was opened and from that day, church services and activities were held there. The accused lived in a parish house near the church.
The accused did not deny that he had engaged in a relationship which included touching of a sexual nature and mutual masturbation with T during the time that the accused was the priest at the parish attended by T. The accused described a relationship with T, which the accused described as a friendship, from the time T began attending the Youth Fellowship Group at the church. T discussed issues of concern to him at the time, and in particular he discussed with the accused his confusion over his sexual orientation and he discussed problems in his family life at home.
The accused said that he had taken passengers from the church, including T, on numerous flights after he obtained his Private Pilot’s Licence in March 1973. T had developed an interest in aviation. In December 1973, after a relationship of a sexual nature had developed between them, the accused took T with him and the instructor on a 5-hour navigation trip in his plane.
The accused accepted that the friendship with T changed into one in which there was sexual attraction on his part. The accused identified the first occasion on which he had become aware of a sexual attraction to T as one which occurred at the time of the trip to Lake Bonney over the Labour Day long weekend in 1973, which by reference to the relevant calendar was on 6, 7 and 8 October 1973. T was then 14 years old. The accused said he told T that he had been tempted to touch him, after noticing that T had a ‘massive erection’ during the night. The accused said that T told him he would not have minded if the accused had touched him.
At around the same time, the accused asked T if he would help him clean the parish house in order to earn extra pocket money. The accused does not dispute that on an occasion when T was cleaning his house, the accused initiated sexual contact with T, by inviting him to engage in mutual masturbation. While there is some discrepancy in the details of the account given by the accused and the account given by T, there is no dispute that the offence of indecent assault, the first count on the Information, took place, broadly as described by T.
There is no dispute that from the time of the first incident, whenever that occurred, sexual activity continued between the accused and T, in the beginning about once every week or two and increasing afterwards to an average of around twice a week. There is also no dispute that the nature of the sexual activity included mutual masturbation and there is no dispute that at least on some occasions, it developed into a kind of simulated sexual intercourse, during which the accused lay on top of T, who was supine facing him, and the accused inserted his penis between the top half of T’s thighs. The recollection of the accused is that simulated sexual intercourse began around February/March in 1974.
The accused denied any occasion where T was lying on his stomach while the accused inserted or attempted to insert his penis into the anus of T. The accused also denied that there was ever an occasion when he was lying on his stomach and T inserted his penis or attempted to insert his penis into the anus of the accused. The accused denied that there was any occasion on which he and T engaged in intercourse involving anal penetration.
There were several Youth Fellowship Group trips to the Flinders Ranges while the accused was at the parish, which by reference to records, the accused could say occurred in May 1972, May 1973, September 1973 and September 1974. The accused said that T went with the Youth Fellowship Group on three trips to the Flinders Ranges, in May 1972, May 1973 and September 1974. The accused accepted that there was sexual activity between him and T on the trip to the Flinders Ranges in September 1974. He denied any sexual contact with T on any other Flinders Ranges trip, and in particular, denied that there had been any indecent assault on T on the Flinders Ranges trip in May 1972.
The accused pleaded guilty to the offence of indecent assault, the subject of the seventh count on the Information, an offence which occurred during a trip with T to Mount Gambier on the 16 and 17 February 1974.
The accused also pleaded guilty to the offence of indecent assault, the eighth count on the Information, which offence relates to sexual activity between the accused and T at Glossop, which the accused said took place in January 1975.
At the end of January 1975, the accused left the parish to move to another parish interstate. By that time, the accused was anticipating a continuing close relationship with T, although conscious that T was still only 15 years old. He wrote several letters to T from his interstate parish, between January and March 1975, before the relationship was brought to an end by the intervention of T’s parents.
Leaving to one side the offences charged in counts 3, 4 and 5, there is very little dispute about the nature of events and the sexual activity between T and the accused. The accused does dispute that the sexual contact between him and T began any earlier than October 1973.
I accept that T was an honest witness doing his best to be factually accurate. However, on the topic of the period over which there was a relationship of a sexual nature between T and the accused, I prefer the evidence of the accused. The accused was in his mid-twenties at the time of these events. The accused could refer to other events, such as having a boarder staying in his house until early October 1973, to help him place the time of the relationship with T. He was able to refer to written records relating to the trips to the Flinders Ranges and to his logbook for flights he had undertaken, records which were not challenged by the prosecution.
T was a child at the time covered by the charges. The trial was over 30 years after the events. The evidence given by T about the timing of events in itself is internally inconsistent and inconsistent with other unchallenged evidence. T said that the first episode of sexual contact between himself and the accused occurred before the trip to the Flinders Ranges on which he and the accused engaged in mutual masturbation. It is however unlikely, on T’s evidence alone, that the first incident of sexual contact occurred before May 1972, the time of the trip to the Flinders Ranges. T was unsure in any event if the incident had occurred on the first or second trip to the Flinders Ranges. In May 1972, T had known the accused for a relatively short time. He was only 12 or 13 years old. He said that he had been on flying trips with the accused before any sexual contact between them. T had not then been on any flying trips with the accused.
He was at his first high school, rather than the second high school he attended where he said he was when the sexual contact had occurred. The events which are the subject of counts 3, 4 and 5 T said occurred when he was 13 or 14 years old, but he also said they occurred only a few weeks after the first incident at the home of the accused.
On the other hand, much of the evidence given by T is consistent with other evidence, including evidence given by the accused. T said that he had known the accused for 18 months to 2 years before there was any sexual contact between them, that he had been on flying trips with the accused before any sexual contact occurred between them, that the first incident in the accused’s home was at the time when his mother had left the family home for a few weeks, a time his mother said was in 1973/1974, that there had been no sexual contact between them before the Flinders trip on which an incident of mutual masturbation occurred, which evidence would be consistent with the first sexual contact occurring around October/November 1973 and a trip to the Flinders Ranges in September 1974.
In addition, T told a police officer in 1992 that he was 14, nearly 15 years old, before the accused began to drop hints about masturbation or make what might be described as sexual advances, and that he was 14 to 15 years old the first time mutual masturbation occurred. T said in his evidence he was mistaken when he told the police officer that. However, what he said in the statement to the police officer is consistent with some of his evidence and consistent with other evidence given.
Count 1 - Indecent Assault
I find that the first episode during which the accused initiated sexual contact with T, an incident admitted by the accused, occurred not as charged in accordance with the particulars to count 1 on the Information but instead, shortly after 6 October 1973. It is the Crown’s submission that while the Crown is usually bound by the particulars it alleges against an accused person, in this case, the offence itself was identified by reference to the event itself rather than the particular dates alleged, which in any event covered a lengthy period of time. The date was not critical to the prosecution case or to the defence of the accused.
Whether the date alleged in an information is vital to the charge must depend on the circumstances. So long as it is clear that the controversy turns on the events of a certain occasion, it may not matter if the date is misstated if the occasion itself is clearly identified and both parties have directed their cases towards it; cf Page v Butcher.
(R v Pfitzner (1976) 15 SASR 171 at 185, 192)
In this case, there was no dispute about the nature of the event in question, or that it occurred at some time. The accused did maintain a strong denial of the time at which sexual contact between the accused and T began. The nature of the forensic contest here was one directed not at whether or not the accused was responsible for the conduct the subject of the charge, but rather when it had occurred.
The accused has pleaded guilty to two other charges of indecent assault occurring later in the admitted relationship between them. Those admissions are not relevant to his guilt or innocence on other charges. The date on which the first incident of sexual relations occurred is nevertheless relevant to the age of T at the time and to the period over which sexual contact with T occurred, and therefore likely to be relevant to sentence.
The date of the offence is not material to the charge. It is not a case where the jury is being asked to find that the alleged offence occurred on any one of a number of several occasions deposed to by a complainant. The incident was properly identified, the accused knew the incident to which the charge related, and the accused is not at risk of conviction of another offence altogether. (R v Liddy (2002) 81 SASR 22 at 93-98; Johnson v Miller (1937) 59 CLR 467 at 490; R v Warren [1971] SASR 316 at 318; Page v Butcher [1957] SASR 165 at 173)
The accused admits the incident occurred. The accused said that it occurred in mid-late October. I accept his evidence as to the date of that offending. Common sense dictates against an acquittal of the accused in relation to an identified offence as to which he has admitted criminal responsibility. (R v Pfitzner (1976) 15 SASR 171 at 193)
For the accused to be found guilty of count 1, the particulars on the Information require further amendment, by substituting another date for 1 May 1973, a date some months later. If this were a jury trial, the jury would have to be directed that it did not matter whether the event in question took place when asserted by the prosecution or at some other date, in this case the date asserted by the accused himself. In the circumstances as I have found them, the relevant section of the Criminal Law Consolidation Act 1935 also requires amendment.
On 9 November 1972, the following amendment to the Criminal Law Consolidation Act 1935 came into operation as section 69 of the Act:
(1) Subject to section 68a of this Act-
(a)any person who commits buggery, either with a human being or an animal, shall be guilty of a misdemeanour and liable to be imprisoned for a term not exceeding ten years;
(b) any person who—
(i) attempts to commit buggery either with a human being or an animal;
(ii) assaults any person with intent to commit buggery;
or
(iii) indecently assaults any male person,
shall be guilty of a misdemeanour and liable to be imprisoned for a term not exceeding seven years;
and
(c) any male person who commits an act of gross indecency with another male person shall be guilty of an offence and liable to be imprisoned for a term not exceeding three years.
(2) Unless a male person has attained the age of twenty-one years, he shall not be considered capable of consenting to an indecent assault on his person by a male person and unless a male person has attained the age of seventeen years he shall not be considered capable of consenting to an indecent assault on his person by a female person
I amend count 1 on the Information as follows:
Indecent Assault. (Section 69(1) (b) (iii) of the Criminal Law Consolidation Act1935)
Particulars of Offence
Raymond Frederick Ayles between the 24th day of October 1971 and the 31st day of October 1973 at Para Hills, indecently assaulted T.
I find the accused guilty of the charge in count 1 on the Information as amended.
Count 2 – Indecent Assault
Count 2 relates to the same incident as that charged in count 1. It concerns the conduct of T towards the accused on that occasion, that is, T masturbating the accused.
There are two elements to an offence of indecent assault, that of an assault and that of indecency. An invitation to touch an invitor cannot amount to an assault on the invitee. If a person has done nothing that could amount to physical compulsion, that is, something which, if done against a person’s will would have amounted to an assault, or acted in a hostile manner, there will be no element of assault. (R v Doyle [1957] SASR 182)
Where there is evidence of physical touching, it does not have to be hostile or painful, but where there is no touching by the invitor, an element of hostility is required to constitute assault. (Faulkner v Talbot [1981] 3 All ER 468 at 471; DPP v Rogers [1953] 2 All ER 644; Fitzgerald v Kennard (1995) 38 NSWLR 184)
It is accepted by the prosecution that there is no evidence of any physical touching, constituting compulsion, or hostility on the part of the accused in his invitation, or persuasion or coercion of T to engage with him in mutual masturbation. The element of assault is lacking and is fatal to the charge.
I find the accused not guilty of the charge in count 2 on the Information.
Counts 3 and 5 – Buggery
The accused denied that any incident of anal intercourse, or attempted anal intercourse, occurred during his relationship with T. The prosecution case depends entirely on the evidence of T.
The crime of buggery with a human being is no longer a criminal offence. Buggery was the crime of a man having intercourse per anum with a man or a woman (sodomy) or an animal (bestiality) (1 Hale PC 669; 1 Hawk. c 4; 1 East PC 480; 1 Russ Cr, 12th ed 735; R v Jacobs (1817) Russell & Ryan 331). Penetration of the anus is an essential element of the offence.
Before the accused can be found guilty of an attempt to have anal sexual intercourse I must be satisfied, on the evidence, that the accused took certain steps with the intention of having anal sexual intercourse with T, but was unable to complete that action for some reason.
On 2 October 1975, amendments to sections 68a and 69 of the Act came into operation as follows:
68a.The law relating to unnatural offences shall be prescribed by this Act and any such offence created under any enactment or at common law is abolished.
69. (1) Any person who commits buggery with an animal shall be guilty of a misdemeanour and liable to be imprisoned for a term not exceeding ten years.
(2) Any person who attempts to commit buggery with an animal shall be guilty of a misdemeanour and liable to be imprisoned for a term not exceeding seven years.
The common law offence of sodomy, and the offence created by the former section 69(1)(a) of the Act, were therefore abolished. However, section 16 of the Acts Interpretation Act1915 relevantly provides:
(1)Where an Act is repealed or amended, or where an Act or enactment expires, then, unless the contrary intention appears, the repeal, amendment or expiry does not—
(a) revive anything not in force or existing at the time the repeal, amendment or expiry takes effect; or
(b) affect the operation of the repealed, amended or expired Act or enactment, or alter the effect of the doing, suffering or omission of anything, prior to the repeal, amendment or expiry; or
(c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable, or any status or capacity existing, prior to the repeal, amendment or expiry; or
(d) affect any duty, obligation, liability or burden of proof imposed, created or incurred, or any penalty, forfeiture or punishment incurred or imposed or liable to be incurred or imposed, prior to the repeal, amendment or expiry; or
(e) affect any investigation, legal proceedings or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty, forfeiture or punishment.
(2)Any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed and enforced, as if the repeal or amendment had not been effected or as if the expired Act or enactment had not expired (as the case may be).
…
(4) In this section—
"legal proceeding" includes any proceeding pursuant to an Act, enactment or law whether of a judicial or administrative nature.
While the offence of sexual intercourse per anum between consenting adults has been abolished, engaging in sexual intercourse, per anum or per vaginam, between an adult and a person under the age of consent, remains a criminal offence and there is no issue relating to the accused being properly charged with the offences. (Pritchard (1999) 107 A Cr R 88)
At common law, once penetration was proved, both parties were equally guilty, unless one of the parties was under 14 years, either because he was under the age of discretion, or, in particular, if he were the party responsible for penetration per anum, because there was an irrebuttable presumption, or arbitrary rule of law that a boy under the age of fourteen was incapable of engaging in sexual intercourse, or effecting penile penetration per vaginam or per anum. (R v Moody (1897) QCR 344; (1897) 8 QLJ 102; Howard, Criminal Law, 3rd ed, (1977) Law Book Company Ltd at 356)
…the law with respect to offences of this character is that sexual capacity, - that is, the absence of impotence – is an essential element of the offence. If that element is not present, there cannot be an offence. It is a presumption of law that that element does not exist in the case of a boy under 14 years.
(Moody (1897) QCR 344; (1897) 8 QLJ 102;and see R v Philips (1839) 8 Car & P 736; 173 ER 695; R v Waite [1892] 2 QB 600; R v Williams [1893] 1 QB 320; 1 Hale PC 670; R vEldershaw (1828) 3 Car & P 396; 172 ER 472; R v Groombridge (1836) 7 Car & P 582; 173 ER 256; Tatam (1921) 15 Cr App R 132)
Consent to anal intercourse by a participant is not an issue, in that it is a crime, regardless of consent. A boy who participates in the offence of sodomy, that is, sexual intercourse per anum with a human being, is capable of being an accomplice if he is of an age of criminal responsibility[1] and, provided that if he is under 14 years, he has the mental capacity to understand that what he was doing was wrong.
[1] ‘It shall be conclusively presumed that no child under the age of eight years can be guilty of an offence.’ (Juvenile Courts Act 1965-1966, section 57; Juvenile Courts Act 1971, section 69; ten years, Juvenile Courts Act1971-1975, section 69)
I accept the evidence of the accused, for the reasons I have already given in relation to the time at which count 1 occurred, that he and T engaged in simulated sexual intercourse from around February/March 1974. I infer from that, and from the evidence given by T, that any incident during which anal penetration was attempted or achieved occurred from that time and not before.
On the facts as I have found them, any incident, if proved, involving anal penetration or an attempt to effect anal penetration occurred at a time when T had already turned 14. No question therefore arises as to an irrebuttable presumption that T was incapable of committing the offence of sodomy by reason of his age. (R v Young [1923] SASR 35 at 50, referring to R v Tatam (1921) 15 Cr App R 132)
In the circumstances where I have found that T must have been over 14 at the time of the incident he described, there is no such presumption and the question of whether or not he is to be considered an accomplice is a matter for the jury. (R v Young, above, referring to R v Cratchley (1913) 9 Cr App R 232; and see R v Allen, (1849) 1 Den 364; 169 ER 282; cf R vPacker [1932] VLR 225)
In this case, T gave evidence that he participated in the offence. He was over 14 and he said that he knew it was wrong. If it were necessary, it would not be difficult to find that T knew the difference between right and wrong and was capable of appreciating that “it was wrong according to the ordinary principles of reasonable men.” (R v M (1977) 16 SASR 589 at 591-593)
T is capable of being considered as an accomplice and a caution in relation to corroboration of his evidence may be warranted:
The danger is that the witness may give false evidence regarding events with which the crime against the accused is connected in order to save himself from being convicted of a crime arising out of those events or to secure a lighter punishment or no punishment at all.
(R v Young, above; R v Cratchley (1913) 9 Cr App R 232; R v Rigney (1975) 12 SASR 30 at 35, 37, 53, 56)
In Hargan v R, ((1919) 27 CLR 13) Barton J said (at 19):
Next is the case of R. v. Warren. In this case Darling J. gave the judgment of the Court. The prisoner had been convicted of sodomy, and the remarks are not perhaps on the actual point on which decision was given, but are accepted by the Court. Darling J. said (14 Cr. App. R.4, at p. 5):—
"The conviction is attacked on the ground that it depended upon the evidence of an accomplice which was uncorroborated. The accomplice was a boy of thirteen, and whether or not the boy was an accomplice in the sense that he could be charged with the offence we think that the Judge ought to have warned the jury against acting on the evidence of an accomplice, and also a warning should have been given to them against acting on the evidence of a boy of that age.”
In my opinion, such a caution is not warranted here. Although T could have been prosecuted for the offence, it is so unlikely as to be effectively of no account. T was a young person in a church congregation. He was vulnerable to advances of a sexual nature from the priest of the parish, a person in a position of trust. The nature of the offending means that evidence from the complainant necessarily implicates the complainant, rather than exculpates him. It means that the evidence given is less likely to be unreliable on account of the complainant’s participation in the offending.
The warning which is required in offences of this nature on account of the risk that the evidence is unreliable due to a long delay in prosecution (Longman (1989) 168 CLR 79 at 84-85) that:
‘it is dangerous to convict on the uncorroborated testimony of the person (whether male or female) on whom the offence is committed, although members of the jury may act upon that testimony if, after scrutinising it with great care, and paying heed to the warning, they are satisfied of its truth and accuracy”-
covers the matters to be addressed in a warning in relation to accomplice evidence in any event. (see Ware, (1994) 73 A Crim R 17 at 26, 28, 33)
The distinction between a warning in relation to evidence of an accomplice, or in relation to the evidence of a person who was a young child when the offending occurred over thirty years before, is likely to be of little or no importance. (R v Young, above at 50; R v Hargan (1919) 27 CLR 13 at 19)
I am not required to direct myself as a matter of law or practice that it is unsafe to convict the accused on the uncorroborated evidence of the alleged victim of the offence. (Evidence Act 1929 section 34I(5))
However, in this case, I bear in mind that T was between about 13 and 15 years old when the events he described occurred. He gave his evidence about those events over 30 years later, as a mature adult.
I bear firmly in mind that it would be dangerous to convict the accused on the evidence of T, on his evidence alone, unless, after scrutinising his evidence with great care, considering the circumstances in which it is to be evaluated and paying heed to the warning, I am satisfied of its truth and accuracy.
There is no other evidence which supports T’s allegations of the offending conduct itself of the accused. It is his word on oath against word on oath of the accused. The nature of the charges, and the evidence called to prove them, makes it difficult to arrive at a conclusion of guilt beyond reasonable doubt.
Had allegations of anal intercourse and indecent assault described in evidence as occurring as early as 1971 or 1972 been made soon after the events described by T, it may have been possible for the accused to explore in more detail the alleged circumstances relating to the charges and to adduce evidence throwing doubt upon T’s evidence, or confirming the accused’s denial.
Experience has shown that human recollection, no matter how honestly and genuinely held, is frequently erroneous and liable to distortion because of many and various factors, and increasing with delay.
In this case, I take into account T’s age at the time of the incidents he described and his likely sexual immaturity and inexperience. I take into account the risk of his misinterpreting the events, especially as the incidents he described occurred in the context of simulated sexual intercourse and any contact around the anus may have been coincidental or accidental, and made without the intention of penetration. I take into account the delay of over 30 years and the risk that T’s memory of the incidents he described has been affected or altered by events in the intervening years and simply by the passage of time.
The evidence given by T of the episode in which he described anal penetration is but one episode over the course of a relationship involving sexual activity between T and the accused. The simulated sexual intercourse in which they were engaging makes misunderstanding or misinterpretation of the physical contact a real risk, especially when the experience was of a young adolescent and the evidence was given over 30 years afterwards. Scrutinising the evidence with great care, and bearing in mind the need for caution, I am not satisfied beyond reasonable doubt that there was penetration of the anus in either case, that is, of T or of the accused. I am not satisfied that the accused is guilty of committing buggery with T, either in the case of T’s penetrating the anus of the accused or vice versa. For the same reasons, I am not satisfied of any intention of anal penetration on the part of either T or the accused. I am therefore not satisfied beyond reasonable doubt that the accused attempted to commit buggery with the accused.
I find the accused not guilty of the charges in counts 3 and 5 on the Information and not guilty of attempted buggery, as an alternative verdict on those charges. (Section 290 Criminal Law Consolidation Act1935)
Count 4 - Indecent Assault
Count 4 was laid as an alternative to count 3, an incident in which T described his penetration of the anus of the accused, or at the least, an attempt to effect penile penetration of the anus of the accused. I have found that I cannot be satisfied of either. If instead, the incident is one of simulated sexual intercourse between T and the accused so as to support a charge of an indecent assault, the incident as described discloses no compulsion or hostility on the part of the accused towards T, in the course of his invitation or the persuasion he invoked to initiate sexual contact between T and himself. For the same reasons applied in relation to count 2 on the Information, count 4 lacks the essential element of assault on the part of the accused.
(R v Doyle [1957] SASR 182; Faulkner v Talbot [1981] 3 All ER 468 at 471; DPP v Rogers [1953] 2 All ER 644; Fitzgerald v Kennard (1995) 38 NSWLR 184)
I find the accused not guilty of the charge in count 4 on the Information.
Count 6
The charge in count 6 relates to an incident of mutual masturbation between the accused and T specifically on the trip to the Flinders Ranges in May 1972. For the reasons outlined above, I have found that no sexual contact occurred between T and the accused until after 6 October 1973. I am not satisfied beyond reasonable doubt that the accused indecently assaulted T on the trip to the Flinders Ranges in May 1972.
In respect of this charge, it is accepted by the prosecution that the date is critical to the prosecution case and to the defence of the accused. (R v Pfitzner, above) Although the accused admitted that sexual contact occurred between T and himself on a later trip to the Flinders Ranges, in September 1974, it is not open to find the accused guilty of indecent assault in respect of an entirely discrete and earlier occasion, and nor is it open to amend the particulars of the charge to create what would amount to a different offence. (R v Pfitzner, above at 192-193; R v Liddy, above at 93- 96)
I find the accused not guilty of the charge in count 6 on the Information.
My verdicts are therefore as follows:
Count 1, as amended: Guilty
Count 2: Not Guilty
Count 3: Not Guilty
Count 4: Not Guilty
Count 5: Not Guilty
Count 6: Not Guilty
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