R v D, C
[2013] SADC 168
•13 December 2013
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v D, C
Criminal Trial by Judge Alone
[2013] SADC 168
Reasons for the Verdict of His Honour Judge Soulio
13 December 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge alone - accused charged with three counts of unlawful sexual intercourse.
Verdict: Not Guilty on all counts.
Criminal Law Consolidation Act 1935 (SA) s 49; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) ss 34CB, 34M, 34P, referred to.
R v Dossi (1918) 13 Cr App R 158; R v Seigneur (2009) 103 SASR 207; R v Davis (1995) 81 A Crim R 156; R v Liddy (No 4) [2001] SASC 152; R v Lane (unreported, Wilcox, Ryan and Higgins JJ, 19 June 1995); R v H,T (2010) 108 SASR 86; R v S,DD (2010) 109 SASR 46; R v J,JA (2009) 105 SASR 563; R v Maiolo (No 2) (2013) 117 SASR 1; Dyers v The Queen (2002) 210 CLR 285, considered.
R v D, C
[2013] SADC 168Background
The accused elected for trial by judge alone, pursuant to s 7 of the Juries Act 1927 (SA), in relation to charges of unlawful sexual intercourse. The complainant, TH, was born in 1992 and at the time of trial was 21 years of age. He alleges that during a period between May 2004 and May 2005, when he was 12 or 13 years old, the accused, who was the complainant’s scoutmaster, performed fellatio upon the complainant on two occasions, and had TH perform anal sexual intercourse upon the accused.
The Charges
The Information
The accused is charged with three counts of unlawful sexual intercourse pursuant to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’).[1]
[1] The accused was originally charged with four counts of unlawful sexual intercourse but at trial nolle prosequi was entered in relation to Count 1. I refer to the remaining three counts as 1, 2 and 3.
The particulars alleged are that:
First Count
The accused, between the 18th day of May 2004 and the 31st day of May 2005 at Modbury, had sexual intercourse with TH, a person of or above the age of 12 years and under the age of 17 years, by performing an act of fellatio upon TH.
Second Count
The accused, between the 18th day of May 2004 and the 31st day of May 2005 at Modbury, had sexual intercourse with TH, a person of or above the age of 12 years and under the age of 17 years, by performing an act of fellatio upon TH.
Third Count
The accused, between the 18th day of May 2004 and the 31st day of May 2005 at Modbury, had anal sexual intercourse with TH, a person of or above the age of 12 years and under the age of 17 years.
An exact date is not alleged in relation to any offence. That is not an essential ingredient of either of the particularised acts or charged offences. The act or occasion alleged must be identified and I must be satisfied the specific act charged is proven beyond reasonable doubt.[2]
The Allegations
[2] R v Dossi (1918) 13 Cr App R 158 at 159-60.
In relation to Count 1, the complainant’s evidence was that the accused performed fellatio upon the complainant when they were at the accused’s unit together with the accused’s girlfriend, KL.
In relation to Count 2, his evidence was that the accused had again performed fellatio upon the complainant on an occasion at the accused’s unit subsequent to the incident involving KL.
In relation to Count 3, his evidence was that after the accused performed fellatio (the subject of Count 2) the accused then sat upon the complainant so that the complainant’s penis entered the accused’s anus.
Directions
Preliminary Matters
It is necessary to give consideration to the elements of the offences and to the onus of proof. It is also necessary to consider the warning which is required given the delay in bringing attention to the matters the subject of the present trial, and the use to be made of the initial complaint and any elaboration of that complaint.[3] It is also necessary to consider the relevant onus of proof in relation to acts constituting discreditable conduct, and the use to be made, if any, of such an act, if proved to the requisite degree.
General Directions
[3] No complaint was made to anyone, nor any report made to police until some three years after the events.
The accused is presumed to be innocent unless, and until, his guilt has been proven beyond reasonable doubt. The burden of proving each element of any charge lies wholly on the prosecution. The accused is not obliged to prove anything. The accused, in putting forward a defence is not required to prove the defence. The Crown must disprove it beyond reasonable doubt.
It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. In relation to any charge, I cannot reach a conclusion of guilt by preferring the evidence of the complainant to that of the accused. I must be satisfied that the prosecution has proved beyond reasonable doubt each element of the charge before I could convict the accused of any count on the Information.
It follows that if I am left with a reasonable doubt as to the establishment of any element of a charge, I must give the accused the benefit of that doubt and find him not guilty of that charge.
The accused elected not to give evidence. I bear in mind that that was his legal right, as it is the right of anyone charged with an offence. I do not draw any adverse inference because he has exercised that right.
I have heard evidence from the complainant that amounts of alcohol were consumed on occasions relating to the offences. In considering their evidence I am entitled to take into account, apart from anything else, the amount of alcohol I find that each had consumed, and the intoxicating effect it had on them, for the purpose of determining the reliance to be placed on the evidence of each of them. I am also entitled to have regard to that in considering their behaviour.
I have also heard evidence from the complainant that, subsequent to the events that give rise to the charges, he was administered significant amounts of drugs by another person. The use of drugs is only relevant as to the effect it may have on a person’s behaviour, on their perception of events, or on their recollection of events.
I bear in mind that both the accused and the prosecution are entitled to a separate consideration of each count, and that the verdict must be based on a consideration of the evidence relating to each count.
Complaint
As I have said, the offences against the complainant are alleged to have occurred between May 2004 and May 2005, over eight years ago. The first time the matter was raised by the complainant, on his evidence, was more than three years after the incidents when he discussed the matter with an assistant scoutmaster, MD. MD encouraged the complainant to report the matter to police, which he did the following day, namely 30 July 2008.
The provisions of s 34M of the Evidence Act 1929 (SA) apply.[4] Section 34M of the Evidence Act relevantly provides:
(2)In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
[4] R v Seigneur (2009) 103 SASR 207.
In addition, s 34CB of the Evidence Act provides:
(1)A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.
Note—
See Longman v The Queen (1989) 168 CLR 79
(2)If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must—
(a) explain to the jury the nature of the forensic disadvantage; and
(b)direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
(3)An explanation or direction under subsection (2) may not take the form of a warning and—
(a) must be specific to the circumstances of the particular case; and
(b)must not include the phrase "dangerous or unsafe to convict" or similar words or phrases.
As has been observed in a number of previous decisions, there may be good reason to explain the delay in the making of a complaint.[5]
… It is commonplace for there to be a substantial delay in the reporting of alleged sexual assaults, especially where the complainant is a child … it seems that many sexual assault victims are unable to voice their experience for a very long time. To adopt a rule that delay simpliciter justifies a stay of criminal proceedings would be to exclude many offences, particularly offences against children, from the sanctions of the criminal law.[6]
[5] For example R v Davis (1995) 81 A Crim R 156 at 158; R v Liddy (No 4) [2001] SASC 152.
[6] R v Lane (unreported, Wilcox, Ryan and Higgins JJ, 19 June 1995) cited in R v Davis (1995) 81 A Crim R 156 at 158-159.
However, if I find that the lapse of time is such that the accused has suffered a significant forensic disadvantage, as the case against the accused essentially consists of the complainant’s unsupported evidence, I would approach each charge on the basis that I should give close scrutiny to the complainant’s evidence.
Complaint Evidence
The prosecution led evidence from the complainant as to the complaint made to MD. For reasons I refer to below, MD did not give evidence in the prosecution case. Again, s 34M of the Evidence Act applies and such evidence of the initial complaint by TH was led in accordance with that section which relevantly provides:
(1) This section abolishes the common law relating to recent complaint in sexual cases.
Note—
See Kilby v The Queen (1973) 129 CLR 460; Crofts v The Queen (1996) 186 CLR 427
(2)…
(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
• when the complaint was made and to whom;
• the content of the complaint;
• how the complaint was solicited;
• why the complaint was made to a particular person at a particular time;
• why the alleged victim did not make the complaint at an earlier time.
(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a) it is admitted—
(i)to inform the jury as to how the allegation first came to light; and
(ii)as evidence of the consistency of conduct of the alleged victim; and
(b) it is not admitted as evidence of the truth of what was alleged; and
(c)there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person, but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5)It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6) In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
The police incident report of Constable Allan Reid, dated 30 July 2008, was tendered by consent on the basis that it would have been Constable Reid’s evidence as to the elaboration of the initial complaint, had he given sworn evidence.
Constable Reid recorded that the complainant alleged the accused sexually abused him at the accused’s home address. The complainant told Constable Reid the abuse was ongoing for a period of approximately three months, but he was unsure of his exact age, or the exact times and dates. The complainant told Constable Reid that he was coerced into acts of fellatio numerous times as the recipient and once as the giver, he was masturbated by the accused and coerced into masturbating the accused, and on one occasion, the accused coerced him into having anal intercourse. The complainant also told Constable Reid that on one occasion a female friend of the accused was involved and coerced him into having sexual intercourse with her.
While the evidence of the complaint to MD was admissible, there is a discretion to exclude such complaint evidence.[7] It was submitted by defence counsel that I should disregard the evidence of the complaint to MD. When giving evidence about the complaint to MD, TH said: “I didn’t mention the details of oral and anal sex and things like that but I mentioned exactly basically things that he mentioned to me”.[8] Defence counsel submitted that such evidence did not amount to complaint evidence, as it was not referable to a charged act. I bear in mind that evidence of the initial complaint to MD is only admitted to inform me as to the way in which the allegations first came to light, and potentially as evidence of the consistency, or lack of consistency, of the conduct of the complainant, and the reliability or unreliability of his evidence.[9] It is not admitted as evidence of the truth of what the complainant alleges. Such evidence must relate to the alleged offences.[10]
[7] See R v H, T (2010) 108 SASR 86 (per Gray J), R v S, DD (2010) 109 SASR 46 (per Peek J).
[8] T 44.
[9] R v J, JA (2009) 105 SASR 563 per Duggan J at [93].
[10] See R v S, DD (2010) 109 SASR 46 (per Duggan J), R v Maiolo (No 2) (2013) 117 SASR 1 (per Peek J).
Here, there was no evidence from MD. The manner in which the complaint was, in effect elicited by MD, and described by the complainant as responding to matters raised by MD, combined with the generality of the complaint, meant that ultimately such evidence was not of assistance to me in determining the issues.
Discreditable Conduct
There was material put before me that was in the nature of discreditable conduct pursuant to s 34P of the Evidence Act.
Section s 34P of the Evidence Act provides that:
(1)In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b) is inadmissible for that purpose (impermissible use); and
(c) subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a) the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
(4)Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
(5)The court may, if it thinks fit, dispense with the requirement in subsection (4).
The complainant gave evidence that the accused had induced the complainant into engaging in masturbation in the accused’s car and had show the complainant pornography. The complainant also said the accused supplied alcohol and engaged in other acts of fellatio. Such evidence could be said to throw light on the relationship between the complainant and the accused. It may tend to explain why the complainant did not make an immediate complaint at the time the charged incidents were said to have occurred. It may explain why the accused expected the complainant’s co-operation and silence at that time.
The evidence of the uncharged incidents, along with the evidence going directly to charges, can be used by me in determining what, if any, weight I am prepared to place on the complainant’s evidence. The evidence may assist me in concluding that the complainant’s evidence is reliable. Alternatively, it may assist the defence in showing inconsistency, unreliability or inherent improbability in his evidence, and thereby raising doubt about the charges.
I will only use the evidence of an uncharged act where I am satisfied, beyond reasonable doubt, that such an act occurred. I remind myself that it would be wrong for me to conclude from the other conduct of the accused that he is the sort of person who would be likely to commit the offences with which he is charged. My verdicts must be delivered on the basis of the evidence in relation to the charges themselves.
Elements of the Offences
Count 1 – Unlawful Sexual Intercourse s 49(3) CLCA
Unlawful sexual intercourse as defined by s 49(3) CLCA is comprised of the following elements or ingredients:
The first element which must be proven is that the accused engaged in sexual intercourse with the complainant. The law has an expanded definition of sexual intercourse. It includes the placing of the mouth over the penis, or fellatio, and includes the penetration of the anus of a person by any part of the body of another person. The slightest penetration is enough.
Here, the act alleged to constitute the unlawful sexual intercourse is that the accused performed fellatio upon the complainant. On the defence case, no form of sexual intercourse occurred at any time.
The law says it is an offence to have intercourse with a person under the age of 17 years. The offences are alleged to have been committed within defined periods, and the prosecution must prove beyond reasonable doubt that the acts, if they occurred at all, occurred within those defined periods. The period alleged in Count 1 is between 18 May 2004 and 31 May 2005. It is common ground that during that period the complainant was under the age of 17 years. The law says that it is impossible for a person under the age of 17 to consent to an act of sexual intercourse. Consent is not an issue in this case.
Count 2 – Unlawful Sexual Intercourse – s 49(3) CLCA
The elements of the offence are the same as for Count 1. Here the allegation is again that the accused performed fellatio upon the complainant.
Count 3 – Unlawful Sexual Intercourse – s 49(3) CLCA
The elements are the same as for Counts 1 and 2. The allegation is that the accused was sitting astride the complainant, and inserted the complaint’s penis into the accused’s anus.
Witnesses
The Crown case comprised the evidence of TH, his mother, and the investigating police officer, Detective Dalton, together with certain documents to which I will refer as necessary.
The Prosecution Evidence
Complainant
At the time of giving evidence the complainant was, as I have said, 21 years of age, and during the time particularised in the Information was therefore 12 or 13 years old. The complainant said that in 2004 he was in year six at primary school and was 12 years old. He commenced attending scouts in that year, on Friday nights between about 6pm and 8pm. The accused was the scout leader, and MD the assistant scout leader. The complainant said there were no scouting activities, but rather the group of about 12 boys “run amok … we mucked around in the back of the scout hall.”
The complainant said he attended two camps during the year he was involved with the scouts, one at Woodhouse and one at Mount Compass. Each of the scout camps was of about three days duration.
The complainant said that he did not have any interaction directly with the accused while at the scout hall on Friday nights, separate from other children. He said, however, that on several occasions the accused collected him from his parent’s house, and that sexual offending occurred at the accused’s house.
The complainant agreed that his evidence about the accused using a proposed fishing trip, as a subterfuge in order to spend time alone with the complainant, had not been mentioned to police or anyone until the complainant gave evidence about that.
The accused, when collecting the complainant from the complainant’s house, would speak with the complainant’s mother and explain the proposed activities such as attending a fishing trip, or similar.
In subsequent cross examination the complainant said “on one occasion I believe he dropped me from Malvern Scout Hall to home and sexual offending occurred in his car before he dropped me home.”
The complainant said that the last occasion he attended the accused’s house was before Christmas in 2004. The complainant said that he contacted the accused either via the complainant’s mother, or by mobile phone, but recalled that on New Year’s Eve of that year he could not get in touch with the accused, and did not hear from him for a long time. He said that the accused “put a bit of space between us”.
The complainant said that on the very first occasion that he attended the accused’s unit, the accused played a film containing heterosexual pornography, and the complainant and the accused masturbated themselves. The complainant said the accused played the movie without any preamble. The playing of pornography and masturbation occurred on a few occasions.
The accused later introduced his girlfriend, KL, to the activity, being that the occasion Count 1 is said to have occurred. The complainant believed KL to be about 27 years old. The complainant said that the accused supplied premixed alcoholic drinks and that KL was drinking alcohol. She removed her clothes and then the accused removed his clothes. She then performed fellatio on the accused, and then on the complainant. The complainant said that he then performed oral sex on KL at the same time she was performing fellatio on the accused. The complainant said that the accused then began performing fellatio on him (Count 1) which lasted for 15 to 20 minutes.
The complainant said that the accused then had penile-vaginal intercourse with KL, and at the same time KL performed fellatio on him. The complainant then had sexual intercourse with KL. While this was occurring the accused was underneath the complainant and KL and the complainant had his testicles in the accused’s mouth. The complainant said that two condoms were used, the first he had with him, and the second was provided by the accused. He said that the accused had never touched the complainant in a sexual way prior to the incident involving KL. After the sexual activity had concluded the accused drove the other two participants to their respective houses, dropping KL off first, and then dropping the complainant to his house at Clarence Gardens.
I admitted the evidence as to the accused showing pornographic movies, and engaging in simultaneous masturbation, as acts of discreditable conduct, which, if accepted beyond reasonable doubt has having occurred, constitute part of a grooming process by the accused.
Counts 2 and 3 were said to have occurred on an occasion at the accused’s unit at least a week after the incident involving KL. The accused had collected the complainant from the complainant’s parent’s house and said that they were going on a fishing trip. The accused provided alcohol to the complainant. The accused began performing fellatio on the complainant, (Count 2). The complainant said that the accused then sat on top of him and inserted his penis into the accused’s anus, and that the act of anal intercourse continued for up to half an hour (Count 3). The complainant gave evidence of the accused performing fellatio upon him after Count 3 had occurred. The latter act of fellatio, occurring after Count 3, was alleged as an uncharged act.
The complainant gave evidence that apart from the occasion involving KL, the occasion of fellatio at the accused’s unit, and the occasion during which anal intercourse occurred, there were three or four other occasions when oral intercourse took place at the accused’s unit, and one occasion at the scout hall on an occasion other than a Friday night. The complainant said that while he was at the scout hall on that occasion the accused showed him pornographic magazines and performed fellatio upon the complainant. During that visit there were two scout supervisors who attended at the hall and engaged in a conversation with the accused about scouting activities. The complainant said that the accused told him that “if anyone comes in put the pornographic magazines in [the filing cabinet] … push the files back, and close the draw and turn the key and take it out.”
The complainant said that subsequently attended the accused’s unit on one or two occasions, but thereafter the accused did not answer the complainant’s calls, and “seemed to become distant”.
The complainant said that on one of the last occasions he had engaged in any sexual activity with the accused the accused said that if the complainant said anything, the accused would be in gaol. The complainant said it was not threatening, rather “it was putting a bit of guilt trip on, sort of, I reckoned that was his way of debriefing because that would have been the last occasion that I had any contact with him of that manner.”
Dealings with MD
After leaving scouts the complainant did not have any further contact with the accused. However he continued to have contact with the assistant scoutmaster, MD. He said he was contacted by MD, through a MySpace account, and by telephone. He engaged in activities with MD including travelling to Clare and to the Port Adelaide markets. He said that on an occasion when he attended a motorcycle race at Mallala with MD, he saw that MD had homosexual pornography on his telephone. MD disclosed at that time, to the complainant, that MD was homosexual. The complainant said that on each occasion he had engaged in any social activity with MD, alcohol was involved.
Evidence of Complaint
During a particular conversation with MD, MD said that he had heard that the accused was alleged to have engaged in inappropriate sexual behaviour with the accused’s young daughter. MD said: “I don’t know what to do. I don’t know who to believe you know”. The complainant responded saying “you can believe it because it’s true. It happened to me”, and then said that he started to tell MD “his story”, although not in detail.
The complainant said:
I wasn’t too detailed with him but I probably basically – everything that he had told me that was, you know, how he said all these stories matched and coincided with each other, the things that coincided with my story were mentioned to him. I didn’t mention the details of oral and anal sex and things like that but I mentioned exactly basically things that he mentioned to me.
The manner in which the complainant related the conversation about MD gave an impression that MD had led the conversation and suggested matters to the complainant.
The complainant said that MD suggested that the complainant go to the police station the next day. The complainant stayed at MD's house on the night of the conversation said to contain the initial complaint.
The complainant said that when he attended the police station he gave a detailed account of what had happened, including the supply of alcohol, details of the sexual offending including oral sex, anal sex and masturbation, and told police about the involvement of KL. He could not recall whether he discussed those matters with a male or female police officer.
Counsel for the DPP sought leave, which was granted, to examine the complainant in relation to his belief about sexual activity involving MD. The complainant said that at the time of his attendance at the police station he did not have any knowledge or belief that any sexual activity had occurred between him and MD.
The complainant also said that at the time of his attendance on police his mental health was “pretty poor”, which he attributed to the circumstances involving the accused, and the drugs supplied to him by MD. The complainant said he was very reliant on MD for support and friendship.
He said that MD gave him amnesiac drugs, including midazolam, designed to be used during surgery. MD was a nurse, and first provided drugs to the complainant when the complainant was having his tongue pierced at the age of 14 years. The complainant said that he was then given such drugs almost every night for some two years dating from the time of the tongue piercing which was performed by MD, at MD's house. The complainant said at that stage, he believed that was after he had reported the allegations against the accused to police.
Cross Examination of the Complainant
The complainant estimated the period of time over which the offending occurred as between three and six months, and agreed that, given his evidence as to when the offending commenced, the offending had concluded before the end of December 2004.
The complainant agreed in cross examination that, contrary to his evidence that there were no scouting-type activities, there were scout camps, games nights and talent nights. He agreed that there had been a quiz night and camp fire cooking, a barbecue, rock climbing, ten pin bowling, and so on.
The complainant said that the first occasion on which there was any sexual behaviour involving the accused was an occasion when the accused was driving him to his house after a scout meeting. They stopped in a park. The accused said “I’m horny” and started masturbating himself, and suggested that the complainant do the same, which the complainant said he did. There was no physical contact between them.
It was common ground that the complainant had never mentioned that incident, the allegation of first sexual dealings, to any police officer. The complainant also conceded that he had had a meeting with the prosecutor and the investigating officer in the week prior to trial, and made no mention of the incident at that time.
The complainant also conceded that his evidence regarding the accused sucking his testicles, during the occasion KL was involved in sexual activity, had never been mentioned to anyone before. He sought to explain that by saying that giving a statement was not easy, that he answered police questions, that the police were busy, and they ran out of time, “and when they say they’ve got enough information, they’ve got enough information.”
Suggestion of Motive
The complainant agreed that in late July 2008, he told MD about a boy who he was seeing at school. The complainant said of the relationship with that boy, that “it got a little bit nasty, but he was denying basically everything that had occurred between us and basically let me suffer the consequences of being gay in a school of all boys …” The complainant agreed that he had published material relating to his asserted relationship with the boy and distributed the written material around the school.
It was put to the complainant that on about 25 July 2008, he was questioned by teachers and given detention in relation to the dissemination of that material. It is common ground that the complainant reported the present matter to police on 30 July 2008, after discussions with MD. It was suggested to the complainant that he had a motive to make a false allegation, and made the report to police regarding the accused in an attempt to deflect the trouble he was in regarding the dissemination of that material. The complainant denied that, and refuted the suggestion of a motive to make a false allegation against the accused.
Motive
The suggestion of a motive can of course be taken into account in assessing this matter. However I bear in mind that there is no onus on the defence to prove a motive to lie. It is for the prosecution to establish each of elements of the charges beyond a reasonable doubt. The defence does not have to prove anything and that includes a motive to lie.
Even if I were to reject the defence contention even as a reasonable possibility, then that does not relieve me of my responsibility to be satisfied beyond a reasonable doubt of the allegations before I could return a verdict of guilty. A failure of the defence to be able to provide a motive to lie can never be used in any way to strengthen the crown case. The defence has no onus to prove anything.
The complainant said that he had lived at MD’s house for a period of not more than two years. He said that he was given midazolam in doses of up to 220mg each night, although he understood that the standard dose for sedation was 2.5-5mg. He was asked how he knew the dose he had been given and said:
[MD] told me. He said he had to ‘use the antagonist to bring you back’, because my breathing became so shallow, and the antagonist for midazolam or the benzodiazepine is a drug called Anexate, or the correct term for it I believed to be – I believe it’s flumazenil, but its shelf name is Anexate, and it reverses the effects of all benzodiazepines.
The complainant said that, on occasions, MD administered phenergan but only when there were no benzodiazepines available. The complainant also said that the benzodiazepines “created other effects like hypersexuality among a lot of other things.”
The complainant agreed that he had been admitted to hospital in April 2009, due not to the administration of midazolam, but rather another benzodiazepine, or a combination of them.
The complainant said that he had in the past used ecstasy, but was deprived of access to that drug by MD because MD did not like the fact that ecstasy, as a stimulant, cancelled out the effects of the sedative drug MD was administering. He said that MD made the supplier of the ecstasy “disappear”, in the sense that the supplier disappeared from the complainant’s life.
The complainant agreed that he had been admitted to hospital for psychiatric care because of a suicide attempt, but denied that he had otherwise been under psychiatric care. When the name of a psychiatrist was put to him, he agreed he had seen that psychiatrist but said that he did not call that being in psychiatric care, but rather seeing a psychiatrist for support.
Following his hospital admission in 2009, the complainant returned to live with MD. The complainant said that he was not aware that he was being sexually abused by MD because the drugs administered by MD created amnesia. The complainant said he only found out about the abuse when he had obtained photographic evidence of such abuse.
The complainant said that there was a period of some years when MD was abusing him. He did not report that to police until late 2012. The complainant said that in April 2012, his partner had found pornographic images which “brought a lot of things to light very very quickly” and that happened at a time when he was undergoing chemotherapy. He said that he waited until that therapy had been completed because he was not in a physical or mental state to make statements about anything. MD had ceased communicating with the complainant and the complainant said that thereafter he was no longer being manipulated by MD.
In re-examination, the complainant said that another reason he did not report the offences, said to have been committed by MD, for some time, was that he had in mind “that if I went and told the police about this, it would screw up what I’ve got going in this court case”.
It was put to the complainant that he told Constable Reid that the offending occurred in 2003. He said in response that he used no dates, but rather made general references to when he was 12 years old, or when he was in scouts. He was asked again might it have been that he told the police that the offending occurred in 2003, and said “it might have been, or it might have been MD sitting there telling me what was the year.”
Incident Involving KL
The complainant agreed that when he had provided a statement to police he had said of the incident involving KL, and Count 1, “I cannot be sure of the date but I think it was maybe March as it was not cold.”
The complainant agreed that he began attending scouts in May 2004 and ceased scouts on 31 May 2005. He agreed that the incident involving KL could not have occurred in March 2004 because he had not commenced scouts, and could not have been in March 2005 because the alleged offending had ceased prior to December 2004.
The complainant had given evidence that he understood the purpose of he and the accused driving to pick up KL was in order to have sex with her, and that there had been discussions about involving a third party in sexual activity for up to a couple of weeks prior to the incident. He agreed that he made no mention to police about such a conversation, or about his awareness that the incident with KL was going to take place.
The complainant was asked in cross examination to give evidence about the order of events. He said that KL had removed her clothes, and then performed fellatio on the accused, and then upon the complainant. He said that the accused said “I’m going to be doing everything that you see, everything that you are going to do, I’m doing it first, because it’s all about dominance”. The complainant agreed that that was not something mentioned in any statement.
The complainant gave evidence in court, in relation to the incident with KL, that the accused had had vaginal sexual intercourse with KL first, followed by the complainant. However he agreed he told police that he had had penile-vaginal intercourse with KL first, followed by the accused. Whilst that difference may not, of itself, raise any concern, the earlier statement to police does not sit well with the complainant’s evidence regarding the accused’s alleged statement about “dominance”.
In evidence the complainant said that at one point during the 'KL incident' he was “giving KL oral sex” and KL was “giving oral sex to [the accused]”. He agreed in cross examination that that was incorrect.
Incident at the Scout Hall
The complainant confirmed that he was certain that there was only one incident at the scout hall. It was put to him that he told police that there were two occasions at the scout hall where sexual activity occurred, but had said he could not be specific about the dates. He said in cross examination that at the scout hall the accused provided alcohol to him and performed oral sex on him. He accepted that he told police that there were two occasions at the scout hall where the accused performed oral sex upon him, but said that he must have been wrong.
The Complainant’s Mother
The complainant’s mother gave brief evidence regarding attendances by the accused to collect the complainant. She said that the complainant was only ever gone for a few hours at most. She did not recall any suggestion by the accused that he proposed to take the complainant on a fishing trip to Port Broughton, as asserted by the complainant, and said that there could not possibly have been a trip to Port Broughton as the periods for which the complainant was absent were too short.
Detective Dalton
Detective Dalton gave evidence as to the date of birth of KL and said that she was born in 1986.
Detective Dalton also gave evidence that, although the complainant reported matters the subject of that hearing to police in July 2008, the first interview of the accused was on 9 February 2010.
Detective Dalton gave evidence that when the accused was interviewed the accused denied the allegations. The record of that interview has been lost by police.
KL
KL was not called to give evidence. I must not speculate about what KL may have said had she been called.[11] I am left in a situation where there is simply no corroborative evidence relating to that count, and indeed all counts.
Documents
[11] Dyers v The Queen (2002) 201 CLR 285.
I received into evidence documents from the complainant’s school showing that the complainant had been spoken to about the incident regarding dissemination of material relating to another student in the first week of August 2008.
Addresses of Counsel
Prosecution
Counsel for the prosecution submitted that the complainant was a reliable and credible witness, that his demeanour was that of someone doing his best to tell the truth, and that he did not confuse the allegations of abuse by the accused with alleged abuse by MD, and that the subsequent administration of drugs by MD to the complainant would not affect his memory.
The statement of Dr White dated 23 August 2013 was tendered on the basis that it constituted evidence that would have been given by Dr White had he been called. Dr White expressed the opinion that midazolam, a benzodiazepine, can be used to produce conscious sedation, such that a person who had been administered the drug would be drowsy but able to respond to verbal instructions.
The main effects of benzodiazepines, including midazolam, are: sedation, reduced anxiety, confused and sometimes irrational thinking, an impaired recall of events that have occurred while under the influence of the drug, and disinhibited behaviour. Dr White stated that the memory of events in 2004 would not be influenced by the consumption midazolam in subsequent years. If 220mg of midazolam was given as a single dose, then a person would likely be in a comatose state, irrespective of their size, weight, age or health status. The combination of alcohol and midazolam would likely result in increased sedation, confused thinking, increased likelihood of risky and impulsive behaviour and more pronounced memory-impairing effects than either drug alone would produce.
Counsel for the prosecution submitted that the complainant was under a misapprehension regarding his ability to correct or supplement his statements to police, and regarding the concept that it was during his evidence in court that he could add the extra details which need not be provided in earlier statements.
Counsel submitted that the statement of Detective Sponheimer, which I received into evidence, in which Detective Sponheimer said that she had told the complainant that it was “preferable to keep addendum statements to a minimum where possible” and that a statement was “a record of a witness’s memory of events and that under examination in court further detail was sometimes elicited through questioning” was sufficient to explain the complainant’s misunderstanding.
Counsel submitted that the complainant was frank in conceding that he had given evidence about matters which had not been mentioned to police.
Counsel also submitted that the evidence of discreditable conduct, including evidence regarding the masturbation incident in the car, and the watching of pornography in the accused’s unit, if found proven could demonstrate that the accused had built a trust with the complainant, so that the complainant might later submit to sexual activity. Evidence of other sexual activity during the incident at the unit involving KL, was said to be no more than part of the narrative to put the charged act into context.
Defence
Counsel for the accused submitted that I could not be satisfied, beyond reasonable doubt, that the complainant’s evidence was truthful, accurate, and reliable concerning the charged incidents, and accordingly the prosecution had failed to prove, beyond reasonable doubt, the accused’s guilt.
Counsel for the accused submitted that the timing of the complainant’s report to police was such that it was open to me to find that it was a possibility that the complainant had become aware through some discussion, or through some documents, that the incident involving the complainant’s fellow student had come to light, whether through official channels, or through the school grapevine. Counsel submitted that “it is just too curious that this all happens in that very short space of time, given that the alleged offending dates back to some time in 2004”, some three and a half years earlier.
Counsel made the submission that if there was a reasonable possibility that the complainant had made a false accusation, then of course the accused must be acquitted.
Counsel also pointed to the fact that the complainant, when reporting the matter to police, alleged that the offending occurred between January 2003 and December 2003. Counsel also pointed to the inconsistencies between the evidence given in court, and what the complainant told police when interviewed on 10 August 2008.
Counsel submitted that allegations may be fabricated for a multitude of reasons, because of a person being unbalanced, because of a person feeling rejected, because of attention seeking, to deflect other issues that may have arisen in a person’s life, and sometimes for no discernible reason.
Conclusion
I bear in mind the high onus of proof placed upon the prosecution, that is, that each element of an offence must be proved beyond reasonable doubt. The only evidence capable of sustaining any particular charge was that of the complainant. The complainant may have been doing his best to tell the truth. However his evidence was beset by inconsistencies such that I am left with doubt as to the extent to which I can rely upon his evidence. For example, the complainant told police that the ‘KL incident’ may have occurred in March but that cannot be so.
The complainant told police that there were no scouting activities undertaken while the scout group was in the accused’s charged, but then accepted that there were. Counsel for the accused submitted that that was a gratuitous piece of evidence given by the complainant to endeavour to convey the impression that there were no official scouting activities, but rather a series of almost anarchic activities including discussions of a sexual nature.
The complainant gave evidence that there was only one occasion on which a sexual act took place at the scout hall, whereas the complainant had told police that there were two such acts.
The complainant gave evidence of a number of matters in court which were never mentioned to police during the course of making the complaint or providing statements, including the significant example of the first incident where the accused was said to have pulled his car over and commenced masturbating and then encouraged the complainant to masturbate as well; the watching of pornography; and the reference to a fishing trip as the pretext for the accused to spend time with the complainant.
The complainant gave inconsistent evidence about the order of events during the occasion relating to Count 1, and the lead up to that occasion.
The complainant’s evidence that the accused would engage in all sexual activities with KL first, because it was “all about dominance” was not mentioned to police.
The complainant had said in evidence that when he reported the incident to police on 30 July 2008 he had gone into considerable detail, and said that he had given “as much detail as I could remember”.
Counsel were in agreement that the complainant’s evidence about what he told MD, could not be admitted as complaint evidence, given that what he told MD could not be related to any specific charge.
The resolution of the issues in this trial have perhaps been rendered more difficult by the passage of some three and a half years from the time the alleged offending was said to have ceased, and the initial report to police, and by the period of just over one and a half years thereafter before the accused was confronted with the allegations, which he denied.
There was no submission that the accused had suffered a significant forensic disadvantage, and of course the accused did not give evidence.
However, the complainant’s recollection of events, and in particular the timing and order of events, may have been affected.
The complainant’s elaboration of events surrounding the charged acts, and the inconsistencies in his evidence generally, impact upon the complainant’s reliability. In circumstances where the entirety of the prosecution case in effect rests upon the evidence of the complainant, that impact is such as to leave me with a doubt as to whether the incidents giving rise to each of the charged counts occurred.
Findings
The decision is a difficult one. The complainant’s evidence is the only evidence against the accused. There were a number of inconsistencies in his evidence. The complaint evidence, and indeed the evidence of the uncharged acts, are attended by inconsistencies such that I cannot regard either as being of assistance to the prosecution case.
The complainant was engaged in an unusual and, on his account, abusive relationship with MD. The complainant appears to have been in the thrall of MD.
There is a reasonable possibility that the complaint to MD, which ultimately led to the report to police, came about by the introduction by MD of allegations against the accused which the complainant went along with. Similarly, I cannot exclude the possibility that the making of the complaint was related to the issue which had arisen at school, given the close temporal connection.
Whilst the complainant may have been doing his best to tell the truth, having regard to the presumption of innocence and the standard of proof required before I could convict, I cannot be satisfied, beyond reasonable doubt, that the accused committed the charged offences.
Verdict
It follows that I am left with a doubt that the acts alleged by the complainant occurred. I find the accused not guilty of each count.
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