R v Brian Gordet Maan
[2009] ACTSC 160
•7 December 2009
R v BRIAN GORDET MAAN
[2009] ACTSC 160 (7 December 2009)
CRIMINAL LAW – trial by judge alone – attempt to engage in sexual intercourse without consent – act of indecency without consent – Crown case entirely dependent on complainant’s evidence – sworn denials of accused – good character evidence – not necessary for a verdict of acquittal that accused’s account is truthful – finding of not guilty entered
EVIDENCE – whether to give a Prasad direction due to insufficient evidence – some discrepancies in complainant’s evidence – complainant a truthful witness – conduct of complainant following attack highly persuasive of its occurrence – request for a Prasad direction denied
EVIDENCE – complainant’s evidence not regarded as unreliable – no serious inconsistencies in the complainant’s evidence such as to have an adverse effect – multiple complaints from the same source have no enhanced evidentiary value – evidence of good character of accused – evidence of flight from the scene not an unequivocal consciousness of guilt
Supreme Court Act 1933 (ACT), s 68
Crimes Act 1900 (ACT), ss 50, 54
Criminal Code 2002 (ACT), ss 20, 44
Evidence Act 1995 (Cth), ss 66,102, 108, 164, 165
R v Prasad (1979) 23 SASR 161; 2 ACrimR 45
Papakosmas v The Queen (1999) 196 CLR 297
R v Bridgman (1980) 24 SASR 278
R v Redpath (1962) 46 Cr.App.R 319, 321
R v Knight (1966) 50 Cr.App.R 122, 125
Questions of Law Reserved on Acquittal (No 1 of 1993) (1993) 59 SASR 214, 218
R v E (1995) 89 A Crim R 325 (NSW), 330
No. SCC 168 of 2008
Judge: Higgins CJ
Supreme Court of the ACT
Date: 7 December 2009
IN THE SUPREME COURT OF THE )
) No. SCC 168 of 2008
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
BRIAN GORDET MAAN
ORDER
Judge: Higgins CJ
Date: 7 December 2009
Place: Canberra
THE COURT ORDERS THAT:
There be a verdict of not guilty recorded in respect of each count on the indictment.
On 22 September 2009, Brian Gordet Maan, the accused, pleaded not guilty to an indictment amended on 21 September 2009 so as to allege that -
… on the 19th day of May 2007 at Canberra [he] attempted to engage in sexual intercourse with [EW] without the consent of [EW] and was reckless as to whether she had consented.
… on the 19th day of May 2007 at Canberra [he] committed an act of indecency upon [EW] without the consent of [EW] and was reckless as to whether she had consented.
… on the 19th days of May 2007 at Canberra [he] attempted to engage in sexual intercourse with [EW] without the consent of [EW] and was reckless as to whether she had consented.
… on the 19th day of May 2007 at Canberra [he] committed an act of indecency upon [EW] without the consent of [EW] and was reckless as to whether she had consented.
The accused elected for trial by judge alone and the matter proceeded accordingly being governed by s 68C of the Supreme Court Act 1933 (ACT):
(1)A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.
(2)The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.
(3)In criminal proceedings tried by a judge alone, if a Territory law would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict.
The Prosecution Opening
The trial commenced before me on 22 September 2009. Ms MacKenzie, for the Crown, relied upon the filed Case Statement as the Crown opening.
In summary, it was alleged that the accused met up with the complainant and Ms Rebecca Page at Academy Night Club in the early hours of Saturday 19 May 2007. They had all been students together at Daramalan College some years previously.
The three then proceeded by taxi to the complainant’s residence which she shared with her parents. The complainant had agreed with Ms Page that she could stay the night. It appears that, before a decision as to whether the accused would stay was made, the taxi left.
As a result all three went to the complainant’s bedroom. Fully clothed, all three shared the queen sized bed in the room. This was probably around 4.30 am.
Sometime during the night, around 6.20 am, the complainant was wakened by the accused pulling down her pants. She felt his penis being pressed between her bare bottom cheeks.
That is alleged to comprise the offence charged in count one or, if that not be made out, count two.
The complainant resisted strongly, hitting the accused and loudly swearing at him telling him to get off her.
Instead of getting off her, the accused positioned himself straddling her face, grabbing it and pressing his penis against her lips. She again resisted. He then desisted. She grabbed a mobile phone and called for a taxi to take the accused away, loudly telling him to leave.
That conduct of the accused is alleged to comprise the offence charged in count three or, if that not be made out, then count four.
The complainant’s mother, whose name I suppress to protect the complainant’s identity, heard the sound of raised voices and heard the front door close.
The complainant attempted to wake Ms Page without success. She phoned a friend, Jessica Kennedy, and complained to her of the accused’s conduct. She then telephoned her boyfriend, [RZ], who was then in France, and complained to him. Ms Page then woke up and the complainant also told her of her complaint. She also texted Megan O’Neill, another friend, with a complaint about the accused.
Police were not summoned to attend until 22 May 2007, according to police records. They then seized bedding, clothing, the complainant’s mobile phone and a pair of men’s underpants which were identified by DNA analysis to be consistent with belonging to the accused.
The legal principles applicable
The Crown bears the onus of proof of each element of the offences alleged before they can be found proved against the accused. Each such element of any such offence must be proved beyond reasonable doubt. The onus never shifts to the accused. He does not need to prove anything. Further, he is to be assumed innocent both to emphasise the onus upon the Crown but also as a guiding principle in assessing the evidence adduced.
The offence alleged in count one requires acceptance beyond reasonable doubt that in performing the acts complained of, the accused was attempting to insert his penis into the complainant’s vagina or anus. That, if performed intentionally, would amount to “sexual intercourse” within the meaning of s 50(a) of the Crimes Act 1900 (ACT). If done without the consent of the person so penetrated and with, at least, reckless indifference to whether that person so consented, it would amount to an attempt to commit an offence against s 54 of the Crimes Act. An attempt to commit an offence is itself an offence by virtue of s 44 of the Criminal Code 2002 (ACT) (the Code). Conduct will amount to a criminal attempt, if, apart from the intent to perform the completed act, there is conduct which is not only intentional and directed towards completing the act but “is more than merely preparatory” (see s 44(2)). Whether such conduct is so is a question of fact (s 44(3)).
If those requirements are not satisfied but it is proved to the criminal standard that the accused deliberately placed his erect penis against the complainant’s buttocks that would constitute an act of indecency. If done without consent and at least with reckless indifference to whether the complainant consented thereto, count two could be proved.
Counts three and four have similar elements. The attempt for the purposes of count 3 is identified as an attempt by the accused to insert his penis into the mouth of the complainant. So to do is defined as sexual intercourse pursuant to s 50(c) Crimes Act. The elements of attempt are similar. So, also, if it be not proved that the accused indeed attempted to insert his penis into the complainant’s mouth but that he did deliberately press his erect penis against or in the vicinity of her closed lips, that would be an act of indecency which, if done without consent and with, at least, reckless indifference to whether the act was consented to, would then prove count four.
In this context I consider that s 20(2) of the Code correctly reflects the correct meaning of recklessness for the purposes of the Crimes Act. That is, if the accused was:
(a)… aware of a substantial risk that the circumstance exists or will exist; and
(b)having regard to the circumstances known to the person, it is unjustifiable to take the risk.
Whether taking a risk is unjustifiable is a question of fact (see s 20(3)).
The evidence
The complainant first gave evidence. As required by law, her evidence was given by CCTV and no inference adverse to the accused or otherwise is to be drawn from that circumstance.
Unsurprisingly, the complainant agreed that she had consumed a number of alcoholic drinks before going home that morning.
Before going to bed she removed her dress but not her tights and put a singlet top on. She entered the bed first. Ms Page lay next to her. Then the accused entered the bed. She said that he said “I want to sleep in the middle” and attempted to do so. She and Ms Page, she said, pushed him away so that he ended up going over both of them next to the wall. The complainant was, therefore, next to him.
The complainant and, presumably, the other two then went to sleep.
She was then woken up, she said, by her pants being pulled down and the accused’s penis being pressed in between the cheeks of her buttocks. She “was hitting him and telling him not to do it”.
He then ceased that attempt and, as she had shifted onto her back, he crouched “at my face” with his penis above her face. He then squatted, putting his penis in the vicinity of her mouth. She moved her head away. The accused grabbed her face and pulled it towards him.
She was, she said, “… still fighting him with my arms trying to get him off”. He then squatted over and he and his penis then touched her mouth. She was telling him to stop and get off her. Somehow, she said, he did so. He was then wearing nothing on his lower body.
Next, she said, she took Ms Page’s mobile phone which was lying next to her and phoned a taxi. The accused appeared then to be looking for his clothing. He put his jeans on. She told him “Get out of my house”. She rang a taxi driver friend of Ms Page. He advised her to ring 132227 and she did so, giving her address as the pickup point. The accused then left the room and, apparently, the house, closing the front door behind him.
Ms Page was still asleep. The complainant shook Ms Page and called out to her but she did not wake up. Just then the complainant’s mother came to the room. The complainant’s mother said to her, “Are you okay?” The complainant said that she was, though, she said, that was not the case. “I think I was still in shock,” was her explanation for that statement.
The complainant then attempted to text a message to the accused saying, “Your fucked in the head, you belong in jail”. However, it was sent to the wrong person. Having realised that from the reply she received, she texted three friends from her phone. One of them, Jessica Kennedy, replied, so she rang Ms Kennedy. The complainant told Ms Kennedy that the accused had tried to put his penis in her bottom and her face.
After that, she rang her boyfriend, [RZ], in France and complained to him of the accused’s conduct. While she was speaking to him, and she thought it took about half an hour, Ms Page woke up and asked her what was happening. The complainant told her to look at her “sent” items on her phone where some text messages of complaint had, apparently, been recorded.
She dropped Ms Page off at the latter’s home some time before noon. She then called the Rape Crisis Hotline and contacted police, she said, on the following Monday.
It was her recollection that police visited on the 21st May 2007, though the police property seizure record is dated 22 May 2007 and police records indicate that the contact was on Tuesday 22 May 2007.
The messages sent from Ms Page’s phone were not retrieved. However, the records of Optus show that a service registered to Ms Page (0417-679914) at 6.36 am on 19 May 2007 registered a call to Canberra Cabs to pick up “Brian” from the complainant’s address. The job was accepted by TX 168 which attended at 6.47 am. There was no pick-up.
Records relating to the accused’s phone (0402 211844) indicated that it called 132227, Canberra Cabs, at 6.48 am. Some of the messages sent from that phone were retrieved from the complainant’s phone. Those messages were recorded on the complainant’s phone as follows:
13:35:5919-05-2007 from the accused’s phone:
[E] i don’t know what i did to make you so pissed off. I’m sorry if i did anything to offend you and and thank you for letting me stay there
There was another, received –
02:03:0119-05-2007 from the accused’s phone:
What the fuck? I’m sorry for whatever i did to piss you off but i have no idea what it is?
This seemed to respond to a message timed 07:43:00; 19-05-2007 sent to the accused’s phone:
Ur fucked in the head u belong in jail
Further messages from the complainant’s phone were:
06:51:2019-05-2007 sent to Jessica Kennedy’s phone:
Get this brian mann slept at my place last night with me n bec woke up to him trying to suffocate his dick in my face. Perverted fuckhead.
The same message was sent to Tania Phillips phone at 07:12:10; 19-05-2007; to Megan O’Neill’s phone at 06:51:46; 19-05-2007. Some of the times may not have been accurately displayed.
Cross-examination of the complainant as to the sequence of events led to the concession that, though she had not expected the accused to stay the night, she did not suggest that the accused contrived that situation. She agreed that she did not object to him staying the night. In evidence, the complainant asserted that she had said to the accused, “What are you doing, get back in the taxi”. However, that assertion is not consistent with the complainant’s statement to police nor is it otherwise supported by other evidence.
However, it is not inconsistent with a view of the event having happened as she described it. The complainant has, it seems to me, reconstructed a concern about the accused staying at her house for the night. The same may be said about the issue she raised as to whether the accused was directed to lie closest to the door rather than closest to the wall or between her and Ms Page. She said she did not recollect the accused removing his underpants and replacing his jeans after initially getting into bed. She did admit that at school some five years before, she and the accused had kissed – “a pash”.
She denied a suggestion that, in effect, she pretended an assault had taken place to divert attention from the fact that she had spent the night with the accused, pre-empting [RZ] being told of it by someone else. The complainant confirmed that Ms Page had slept through the entire violent episode despite the fact that she repeatedly struck the accused and loudly yelled and swore at him.
The telephone records did not show text messages recorded on the complainant’s phone, though calls that apparently conveyed a text message could be identified. Had an earlier request been made to Vodaphone or Optus, those messages might have been retrieved.
The complainant’s mother said that on the morning in question, at about 6.00 am, she heard “some voices” coming from the complainant’s bedroom. The complainant’s father was in bed with her at the time. She had heard the complainant come home at about 4.30 am. Then, at about 6.00 am, she was woken up by “quite loud” noises. “It was as though people were shouting and yelling at each other”. However, she did not go and investigate at that point. After the noise of voices had gone on for about five minutes she “heard the front door shut and then I did get up. I raced upstairs”.
Her reason for doing so was not because of fear that a physical altercation was taking place but to check whether someone was coming in or, indeed, whether the complainant was going out and, perhaps, driving her car. Accordingly, the complainant’s mother first opened the front door and noted that the complainant’s car was still there. Then she went to and knocked on the complainant’s bedroom door. She opened it and saw the complainant and Ms Page in bed. The complainant was sitting up, Ms Page “appeared to be sound asleep”.
The complainant in response to her query, “Is all okay?” replied, “All’s okay.”
It was not until “about the Tuesday” that the complainant raised with her a matter of concern about the conduct of the accused.
The complainant explained this omission to complain earlier by saying that she was shocked at first and, later, concerned about her grandmother’s grave illness which, clearly, was very concerning for her mother as well.
The content of what the complainant then said to her mother was not given in evidence. It was after she had made a statement to police. The content of that statement could not therefore be admitted into evidence by virtue of s 66(3) (Evidence Act 1995 (Cth)).
In cross-examination, the complainant’s mother stated that she had assumed that the conversation in question was between the complainant and Ms Page. She agreed that she described the noise as “shouting and yelling” because of what she had been later told by the complainant rather than because of her impression of what she heard at the time. Indeed, at the time she made her statement to police she referred to that noise only as “loud talking”, though, in retrospect, the former description, she considered was more appropriate.
It is, perhaps, a little odd that the complainant’s mother did not ask the complainant about the front door being closed. If it was no one coming in, who was going out?
Ms Page gave evidence that, on arriving at the complainant’s home, she paid the taxi driver. The other two had exited the taxi. They all got into bed. The accused, she said, “tried to get into the middle of us”. That remained the situation, she said, till she fell asleep. She woke about 7.00 am to find the complainant crying and talking on the phone to [RZ]. The complainant then hung up and told Ms Page that she had woken up to the accused trying to have sex with her. She was clothed, she said, but he was not, he tried to put his penis in her mouth, she had yelled at him and told him “no” and struggled to get him off her. He did get off and she called a taxi for him on Ms Page’s phone.
Ms Page also asserted that she was “a heavy sleeper” and that that would have been accentuated by her consumption of alcohol.
In cross-examination, she stated that there had been no disagreement or arguing about whether the accused would stay the night, nor about where in the bed they would respectively sleep.
This evidence directly contradicted that of the complainant that there had been a physical tussle with the accused to position him against the wall.
Ms Jessica Kennedy gave evidence that she had, early in the morning of 19 May 2007, received a phone call from the complainant. Her recollection of the complainant’s statement to her was that the latter had woken up with the accused trying to have sex with her and that she had then “kicked him out of the house”. The complainant described the accused as having attempted to penetrate her from behind and into her mouth.
She did not, in her evidence, recall if she had first received a text message from the complainant. However, I note that the phone records do support the conclusion that there was a text message from the complainant at 6.49 am followed by a lengthy phone conversation at 6.52 am.
She agreed in cross-examination that the complainant said that she had told the accused not to be stupid and that “he was trying to get in the middle between her and Bec and that they told him to sleep on the “edge of the bed”.
[RZ] gave evidence that he had received a phone call from the complainant at “nearly midnight” in France. She was upset and crying. The account of the event he recalled her giving was that:
… Bec was between her [the complainant] and [the accused]. He was on her side of the bed, and she said that he kept getting up and trying to get over to her side of the bed … and herself and Bec, they’d push him back and tell him “No, you stay put, that’s where you’re sleeping” and after some time, they fell asleep. She then told me that she woke up in the night and had felt her pants were being pulled down. She then felt [the accused] with his pants down trying to put his penis inside her from behind. She said she struggled and got away, and then he hopped up, held her head down and started trying to put his penis in her mouth … she screamed and hit him to get off, get off. Eventually she said he did get off and she continued screaming at him to get out of her house.
[RZ] told the complainant, he said, to tell her mother what had happened and to call the police. She was, he said, at first reluctant to do so.
The complainant, in fact, did both but not until the Tuesday following.
The other witnesses to whom the complainant made an account of the attack upon her by the accused were, first, Megan O’Neill. She had received a text message that the accused had “… just tried to have sex with me and rape me”. Ms O’Neill then spoke with the complainant by telephone.
The account Ms O’Neill said she was given was first, that the accused had said that he didn’t have enough money to get home. That was not a detail supported by Ms Page. She said the complainant “specifically” told her she stayed on the “other side of the bed with Rebecca in the middle and Brian on the inside and that they then went to sleep.
That detail contradicted the complainant’s version which she gave in evidence. Otherwise, her account was of a version of the alleged attack consistent with the complainant’s evidence.
There was evidence given by Ms Susan Allen from business records of Canberra Cabs. This revealed that a taxi was requested for the complainant’s address at 6.36 am on 19 May 2007. The entry further indicated that the passenger was not picked up within 10 minutes by the assigned driver (TX168). A GPS record tracked the taxi in question to a position near the complainant’s address arriving at 6.47 am.
Although the initial report Ms Allen received suggested the taxi had gone to the wrong address, the records satisfy me that it went to the correct address, albeit a little over 10 minutes from the allocation of the job. Records to confirm the information from the accused’s phone, namely, that he called for a taxi at 6.48 am and from where, had been deleted after six months. They had not been requested by police prior to deletion.
Police had, of course, knowledge of the accused’s phone number as at 22 May 2007 but did not choose to access records of Canberra Cabs as they did for the call from Ms Page’s phone.
Senior Constable Tara Ducker disclosed that the complainant did not, in fact, contact police until 22 May 2007. The complainant had then outlined an incident of attempted rape three days before. Items were then seized from her residence.
Those items were forensically examined. The accused volunteered a forensic sample. The examination supported a conclusion that underpants seized from the complainant’s bedroom belonged to the accused. There was otherwise no relevant finding.
That was the prosecution case.
I was asked by Mr Gill, for the accused, to consider ruling at this point that, though sufficient for a prima facie case, the prosecution evidence was insufficient to dispel all reasonable doubt as to the guilt of the accused.
Whilst it is true that doubt might arise as to some details recounted by the complainant, in particular, whether there was reluctance expressed by the complainant as to the accused staying the night with her and Ms Page and as to the positions they occupied in the bed before going to sleep and whether there was resistance to the accused occupying the middle position, nevertheless, the messages and conversations engaged in by the complainant, including those with the accused, are only consistent with something happening much as the complainant alleged. It is also true that the accused denied any attack upon the complainant at the first opportunity. It is also curious that the complainant’s loud and, on her presentation, vigorous resistance did not rouse Ms Page. Further, although the complainant’s mother heard something, it was insufficient to cause serious alarm. Further, though present, her father was not offered as a witness to indicate the level of noise that could be heard. Finally, the complainant herself, though not reluctant to complain of the accused’s conduct to a variety of persons including her boyfriend, did seem reluctant to complain to police or her mother.
Nevertheless, had there been no further evidence, I would have concluded that those matters were insufficient to cause me to doubt the essential truth of the complainant’s evidence. It is, of course, not corroborated by any independent evidence not emanating from her but I found her presentation to be that of a truthful witness.
I, therefore, ruled that I would not give myself a direction of the kind approved in R v Prasad (1979) 23 SASR 161; 2 ACrimR 45. It seemed to me that, though the Crown case depended entirely on acceptance of the complainant’s evidence beyond reasonable doubt, the conduct of the complainant following the alleged attack, in the absence of any contrary evidence from the accused or otherwise, was highly persuasive of its occurrence. Indeed, even after allowing for the discrepancies between her evidence and that of Ms Page and between that evidence and some details she recounted to others, I found no reason to doubt her account of the essential elements of the events she related.
Her account of the actions of the accused, if accepted as proved beyond a reasonable doubt, would have supported an inference that the accused was, as she supposed, intending to insert his penis into her anus or vagina in the first part of the incident and into her mouth in the latter part. That would have warranted a finding of guilt.
The accused then elected to call evidence and to himself give evidence. Whilst in so doing an accused is in no special position compared to other witnesses, it is important to bear in mind that he is not obliged to do so. It is a voluntary decision and in no way does he thereby take upon himself any onus of proof.
He deposed that his original intention was to take the taxi, after dropping off the complainant and Ms Page, to Gungahlin where his parents lived as his girlfriend, with whom he lived, was away.
While he was speaking with the complainant at her address, they having both exited the taxi, Ms Page had paid the fare and the taxi departed. Without further discussion they all went to the complainant’s bedroom and got into bed.
He said that he first got into the side of the bed furthest from the wall with Ms Page next to him and the complainant next to the wall. However, he decided not to lie next to Ms Page because he had a girlfriend. The complainant, he knew, had a boyfriend, so it seemed more appropriate not to lie next to Ms Page. It was “safer”, he said.
I have to say I found this explanation somewhat curious but it does accord with Ms Page’s evidence that he then positioned himself against the wall. He denied any discussion, dispute or physical resistance to this which also accords with Ms Page’s evidence and not that of the complainant.
The next matter addressed was how his underpants came to be on the complainant’s bedroom floor. The accused said that after the three persons were lying in bed:
The underpants were riding up when we were lying in the bed so I said to [the complainant] “Do you mind if I take my pants off, my underpants off, they are riding up?” She said, “Not a problem”. And so I went to the end of the bed, the lights were off at the time so it was pitch black, took my jeans off, took my underpants off, and then put my jeans back on.
He then lay back down and went to sleep.
Later, he woke up. It was less dark. He had a conversation with the complainant about [RZ]. After some time, the complainant offered to order him a taxi. Contrary to the complainant’s suggestion that he had claimed to have not re-engaged the original taxi because of a lack of funds, he said he did have sufficient money to pay for a taxi. Indeed, that had to be so because he did engage a taxi shortly after he left the complainant’s home and apparently paid for it. Indeed, that claim by the complainant could not have been true to her knowledge at the time as, otherwise, it would have been pointless for her to have called him a taxi. That, and her claim of original reluctance to let him stay, albeit I accept it was not the original plan that he would do so, has all the hallmarks of reconstruction.
It took two calls by the complainant, he agreed, to engage a taxi. He grabbed his wallet, keys and phone and left. He forgot, he said, that his underpants had been removed.
However, instead of waiting out the front of the complainant’s house for the taxi the complainant had engaged to arrive at her address, the accused, after six or seven minutes, walked to a corner “down the hill”. There were, he said, “two cabs” he waited for.
Sometime in the afternoon, after he had gone to bed at his girlfriend’s home in Red Hill, the accused received the message “You’re fucked in the head, you belong in jail” from the complainant. His reply, “What the fuck? I’m sorry for whatever I did to piss you off, but I have no idea what it is”, was certainly consistent with innocence of any such conduct as that of which the complainant complained. Of course, the conduct of the complainant, including her messaging, was consistent with some event occurring of the kind she had complained of.
In cross-examination, the accused was referred to the fact that the complainant had called a taxi for him at 6.36 am. He agreed that he had left the outside of the complainant’s house before the taxi arrived, as it did at 6.47 am.
The accused denied that the events which the complainant alleged had occurred. It was suggested to him that the reason he left his underpants behind was because he fled in panic and that also was the reason he did not wait for the taxi that the complainant had called. He rejected those suggestions.
The incident concerning the accused’s underpants having been removed before the persons in the bedroom went to sleep had been put to the complainant. She did not deny that it occurred but said that she did not recall it. I accept that Ms Page would probably have been asleep at that time and could not confirm or deny the incident. According to the accused, the complainant responded positively to his stated intention to remove them. Nevertheless, I did not consider that there was a persuasive reason for the accused to remove his underpants. The fact that the accused did not wait outside the house for the taxi called for him is also suspicious. It does look, as Ms MacKenzie suggested, as if he was putting distance between himself and the complainant.
That was not all the evidence called. Father Bernard Patterson, a Catholic priest, gave evidence of long association, since 1986, with the accused and his family. He had a very high opinion of the honesty of the accused and his respect for women. Of course, as Ms MacKenzie elicited, he had not had experience of the accused in the night club environment.
A long time school friend, Mark Van Zomeren was also called. He considered the accused both honest and truthful and that his character was inconsistent with the allegations against him.
That was the case for the accused.
Evidence of good character is, of course, significant. It tends to support the view that the accused is not the kind of person who would knowingly do that of which he was accused nor tell untruths on oath.
Ms MacKenzie, in address, pointed to the suspicious circumstances that the accused did not wait for the taxi out front of the complainant’s home and his account of removing his underpants. On the positive side, she pointed to the behaviour of the complainant, consistent with a strong belief on her part that conduct of the kind alleged had been engaged in by the accused.
I have to remind myself that under the Evidence Act, s 66, the terms of complaints of sexual assault are not merely evidence of consistency but also probative of the facts asserted, provided the facts asserted would be fresh in the memory of the complainant and are not recounting evidence the complainant intends to give in relevant proceedings. No issue arises as to the timeliness of the complaints she made, though, in relation to the complainant’s mother, I bear in mind the reasons the complainant advanced for not telling her of the assault when she inquired, which was shortly after the accused had left the house. I also have to bear in mind that multiple complaints, emanating as they do from the same source, do not, by virtue of repetition gain any enhanced evidentiary value. Inconsistencies, of course, may have an adverse impact (see Papakosmas v The Queen (1999) 196 CLR 297). In the present case, I perceive no serious inconsistencies in the statements of complaint made by the complainant. The evidence of her demeanour when making those statements is not inconsistent with the perceived truth of her account.
Mr Gill, for the accused, submitted that little weight could be attached to the fact that the accused called a taxi from a distance away from the complainant’s home. It did not unequivocally bespeak a consciousness of guilt, particularly as there was no evidence to contradict the assertion of the accused that he waited outside the complainant’s home for 6 – 8 minutes, before walking off and calling a taxi himself.
Clearly, as Mr Gill pointed out, evidence of flight from the scene is a slender support for the Crown case unless it unequivocally points to consciousness of guilt (see R v Bridgman (1980) 24 SASR 278). Similarly, evidence of the distressed condition of a complainant, whilst consistent with the Crown case, should be accorded little weight (see R v Redpath (1962) 46 Cr.App.R 319, 321; R v Knight (1966) 50 Cr.App.R 122, 125).
In relation to the latter, I bear in mind that the distress of the complainant was not apparent to the complainant’s mother immediately after the alleged assault. It was first apparent only when the complainant spoke to [RZ] and Ms Kennedy on the telephone.
The accused’s underpants being left on the floor, Mr Gill pointed out, was not a circumstance inconsistent with either version of the event. On the other hand, of course, on any account of it, there was a time gap between the alleged assault and the accused leaving the bedroom. He seems to have had no difficulty finding all his other possessions which is, marginally, more consistent with the accused’s account of the event than with him fleeing in panic.
It is true, as Mr Gill submits, that the prosecutor did not seek leave to adduce the evidence of the prior consistent statements of the complainant under s 108 of the Evidence Act so as to except that evidence from the prohibition on credibility evidence under s 102 thereof. Thus the evidence is inadmissible to rebut the inference to be drawn from the evidence of the complainant’s mother that would be inconsistent with an event such as the complainant alleged having taken place.
It is also the case that there is no requirement for any warning not to act on the uncorroborated evidence of the complainant (see s 164, Evidence Act), however, it is the case that there is an absence of supporting evidence from persons who might have been expected to offer such support, such as Ms Page, the complainant’s mother and father.
Mr Gill submitted that I should give myself, in the circumstances, a warning under s 165 (Evidence Act), that is, that the evidence of the complainant should be regarded as unreliable.
I do not accept that to be the case. It is true that the lack of contemporaneous support is surprising but not so much so that, standing alone, it seriously damages the complainant’s credibility.
Nevertheless, I accept that in order to find guilt it is necessary to find not only that the complainant’s account is completely convincing but also that the sworn denials of the accused are so unconvincing that a conclusion may be reached as to guilt beyond reasonable doubt (see Question of Law Reserved on Acquittal (No 1 of 1993) (1993) 59 SASR 214, 218).
It must be emphasised that it is not necessary for a verdict of acquittal that I be persuaded that the accused’s account is, or is even probably, truthful (see R v E (1995) 89 A Crim R 325 (NSW), 330).
Other criticisms were levelled by Mr Gill at the complainant’s evidence, however, they do no more than support the view that in the context of the sworn denials of a man of good character, it is not possible to conclude beyond reasonable doubt that the accused is guilty as charged.
Accordingly, I record a verdict of not guilty in respect of each count on the indictment.
I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 7 December 2009
Counsel for the Crown: Ms Mackenzie
Solicitor for the Crown: Director of Public Prosecutions for the ACT
Counsel for the defendant: Mr S Gill
Solicitor for the defendant: pappas j - attorney
Date of hearing: 21, 22, 23, and 24 September 2009
Date of judgment: 7 December 2009
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